PYARELAL versus SHUBHENDRA PILANIA (MINOR) THROUGH NATURAL GUARDIAN (FATHER) SHRI PRADEEP KUMAR PILANIA & ORS.

[2019] 1 S.C.R. 717

PYARELAL

SHUBHENDRA PILANIA (MINOR) THROUGH

NATURAL GUARDIAN (FATHER) SHRI PRADEEP

KUMAR PILANIA & ORS.

(Civil Appeal Nos. 1269-70 of 2019)

JANUARY 29, 2019

[U. U. LALIT AND

DR. DHANANJAYA Y CHANDRACHUD, JJ.]

Code of Civil Procedure, 1908:

s. 9 – Jurisdiction of civil court – Whether barred – Fortrying suit in respect of agricultural land for relief to declare thegift deed void and to restrain respondent Nos. 1 to 5 from alienatingthe property – While the suit of plaintiff before Revenue Court fordeclaration of ‘Khatedari’ rights in respect of suit property waspending – Held: Claim of the plaintiff to ‘Khatedari’ rights waspending adjudication, by the Revenue Court which had exclusivejurisdiction to adjudicate upon such claim in view of s. 207 r/w s.256, s. 88 and Third Schedule of Tenancy Act – The plaintiff hadno right to seek relief before the civil court without first getting his‘Khatedari’ rights decreed by the Revenue Court – RajasthanTenancy Act, 1955 – ss. 207, 256, 88 and Third Schedule.

Appellant-plaintiff filed suit for declaring gift deed inrespect of suit property (an agricultural land) as void and forrestraining the defendants (respondent Nos. 1 to 5) from alienatingthe suit property. Appellant had also filed suit before RevenueCourt for declaration of his ‘Khatedari’ rights. Respondent Nos.1 to 3 filed an application u/Or. VII r. 11 r/w s. 151 CPC contendingthat civil court had no jurisdiction to try the suit. Trial courtdismissed the application. High Court allowed the Revisionholding that the suit was barred by the provisions of RajasthanTenancy Act, 1955. Hence the present appeal.

Dismissing the appeals, the Court

HELD: 1. Section 207 read with Section 256 of the RajasthanTenancy Act bars the jurisdiction of the civil courts in respect of

Asuits and applications of the nature specified in the Third Scheduleto the Tenancy Act. Sl. No. 5 in the Third Schedule read withSection 207 of the Tenancy Act stipulates that suit for thedeclaration of right provided in Section 88 would lie before arevenue court. In suit where the relief sought for is thedeclaration of the right stipulated in Section 88, Sections 207 andB256 read with the Third Schedule bar the jurisdiction of civil courtsand vest jurisdiction exclusively with revenue court. [Paras 14 ,15][726-A-B; 727-A-B]

2. The civil court may decree the relief prayed (declarationof gift deed in respect of suit property void) only if it is firstCdetermined that the appellant is entitled to khatedari rights inthe suit property. Under the provisions of the Tenancy Act, thejurisdiction to declare khatedari rights vests exclusively with therevenue courts. Only after such determination may the civil courtproceed to decree the relief as prayed. The explanation to SectionD207 clarifies that if the cause of action in respect of which relief issought can be granted only by the revenue court, then it isimmaterial that the relief asked from the civil court is greaterthan, or in addition to or not identical with the relief which therevenue court would have granted. In view of this matter, thecivil court may not grant relief until the khatedari rights of theEappellant have been decreed by revenue court. [Para 18][728-E-G]

3. Where the khatedari rights are yet to be decreed, aclaimant must first approach the revenue courts. The relief todeclare the gift deed void and to restrain respondents Nos. 1 toF5 from interfering with or alienating the property vesting in acivil court may be sought for in suit by claimant in whomkhatedari rights have been decreed by revenue court. [Para19][728-G-H; 729-A]

4. recorded khatedar stands on different footingGcompared to claimant seeking decree of their khatedari rights.A claimant seeking decree of khatedari rights is barred fromfiling suit in the civil court prior to their khatedari right beingdecreed by revenue court when the relief sought for by thecivil court includes determination of khatedari rights. [ParaH21][730-C-D]

5. In the present case, the High Court has proceeded onthe basis that the suit seeking declaration of the gift deed relatingto disputed agricultural land as void and restraining RespondentNos. 1 to 5 from transfer or sale of the agricultural land beforethe civil court is squarely covered by the bar to the jurisdictionof the civil court under the provisions of the Tenancy Act. Theclaim of the appellant to khatedari rights is pending adjudicationby revenue court which has the exclusive jurisdiction toadjudicate upon such claim. The appellant has no right to seekrelief before the civil court without first getting his khatedari rightsdecreed by the revenue court. [Para 22][730-D-F]

Bank of Baroda v. Moti Bhai (1985) 1 SCC 475 : [1985]2 SCR 784; Shri Ram v. J (2001) 3 SCC 24 :[2001] 1 SCR 984 – relied on.

Case Law Reference

[1985] 2 SCR 784relied onPara 14[2001] 1 SCR 984 relied onPara 20

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1269-1270 of 2019.

From the Judgment and Order dated 13.11.2014 and 02.03.2015of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur inS.B. Civil Revision Petition No. 117 of 2013 and S.B. Civil Review PetitionNo. 1 of 2015 in S.B. Civil Revision Petition No. 117 of 2013 respectively.

Annam D. N. Rao, Annam Venkatesh, Sudipto Sircar, RahulMishra, Advs. for the Appellant.

Ms. Aishwarya Bhati, Ms. Chitrangda Rastravara, Shaurya SinghRathore, Damodar Solanki, Vaidruti Mishra, Suresh Pandey, Advs. forthe Respondent.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J. 1. Leavegranted.

2. The appeals in the present case arise from two orders dated 13November 2014 and 2 March 2015 of the Rajasthan High Court inexercise of its revisional jurisdiction. By an order dated 13 November2014, the learned Single Judge of the High Court allowed the revisionpetition filed by the respondents. The challenge was to an order dated

A26 August 2013 of the Additional Civil Judge (Junior Division), Sikarrejecting the objection to the jurisdiction of the civil court to try the suitfiled by the appellant. The appellant filed petition for review before theHigh Court. The learned single Judge dismissed the petition on 2 March2015.

B3. The family tree of the appellant is depicted below:

EThe Sub-Registrar and Tehsildar are respondent Nos. 4 and 5respectively.

4. The appellant alleged that on the death of Mangalram andRukma Devi, the agricultural land in question devolved upon respondentNo. 3 and his sister Kushali Devi (mother of the Plaintiff) in equal shares.FKushali Devi died intestate and her share devolved upon her children –the appellant and respondent Nos. 7 to 10 in equal measure. The appellantand respondent Nos. 7 to 10 claim to be in possession of their share inthe suit property. The appellant alleged that respondent Nos. 2 and 3colluded with the Sarpanch of the village and got the name of respondentGNo. 3 recorded as the owner of the land belonging to the appellant andrespondent Nos. 7 to 10. Thereafter, respondent Nos. 2 and 3 registereda gift deed dated 10 February 2011 in favour of respondent No. 1.5. On 13 March 2012, the appellant filed civil suit[1] against therespondents praying that the gift deed dated 10 February 2011 be declaredH 1 62/2012

void to the extent of the share claimed by the appellant and that respondentNos. 1 to 5 be restrained from alienating the suit property. RespondentNos. 1 to 3 filed an application under Order VII Rule 11 read with Section151 of the Code of Civil Procedure 1908[2]contending that the appellant,who is not recorded khatedar of the suit land, had filed suit beforethe revenue court for the declaration of his khatedari right and the suitpreferred by the appellant before the Trial court was liable to be dismissed.In reply, the appellant admitted that suit had been filed before therevenue court for the declaration of his khatedari right but contendedthat the civil court had jurisdiction to grant the relief sought.

6. On 26 August, 2013, the Trial court dismissed the application,taking the view that any conclusion on the question of jurisdiction canonly be drawn after framing preliminary issues and recording evidenceof the parties. The objections were dismissed by Trial court with thefollowing observations:

“6. So far as present application is concerned, in the said application,the first ground taken by the defendants is that the plaintiff andthe defendant Nos.7 to 10 are not recorded kashtkar of thedisputed land and they have already filed suit in the revenue courtfor getting their khatedari right declared. Therefore, civil courtshave no jurisdiction to try the present suit.

7. In this context, the defendants cited Rukmani v Bhola and others(SB Civil Misc. Appeal No. 553/1993) dated 20.12.2011, whileplaintiff cited DNJ 2013(1) Rajasthan 358. In the citation of thedefendants, though the Hon’ble High Court has set this principlethat if the relief of declaring any document ineffective and void issought for and in pith and substance, the suit is related withkhatedari rights, then revenue court would have jurisdiction totry the suit because until and unless revenue court has not declaredkhatedari rights, the civil court cannot declare the document void.Though in the citation cited by the defendants as stated above,the suit must be related for the declaration of basic khatedarirights, then only the jurisdiction is vested unto the revenue court,but if we carefully peruse the said citation then in that case thetrial court has framed issues on the basis of pleadings of the plaintand written statement of the parties and thereafter recordingevidence of the parties on the preliminary issue, the suit has been

2 “The Code”

Areturned back for filing in the concerned court in view of OrderVII Rule 11 CPC. In the present case, issues are yet to be framed.The plaintiff has pleaded in the plaint that his mother has one halfshare in the suit land hence on this point any conclusion can bedrawn only after framing preliminary issue and recording evidenceof the parties.”B

7. Respondent Nos. 1 to 3 challenged the order of the Trial courtin revision under Section 115 of the Code. The Rajasthan High Courtallowed the revision by its judgement dated 13 November 2014. Relyingon the averments in the plaint, the High Court held that the suit wasbarred by the provisions of the Rajasthan Tenancy Act, 1955.[3]The HighCCourt observed thus:

“Apparently and looking to the prayer of the plaintiff in the Trialcourt, it can easily be said that the suit was triable only by therevenue court under the provisions of Section 88 and Section 207of the Act of 1955 and hence it can further be said that the suitDfrom the averment in the plaint appears to be barred under theprovisions of the Act of 1955 and the suit should have been rejectedon that count alone under the provisions of Order VII Rule 11(d)of Code of Civil Procedure and hence the order dated 26.8.2013passed by Additional Civil Judge (Jr. Div.) No.2, Sikar in Civil SuitENo.62/2012 B.T. No.20/12 deserves to be quashed and set asidewhich is hereby quashed and set aside.”

The review petition preferred by appellant was dismissed.

8. Assailing the decision of the High Court, learned counsel forthe appellant urged the following submissions:F(i) The relief claimed in the suit is not covered under Section 207and the Third Schedule of the Tenancy Act and civil courthas jurisdiction to decide the existing dispute; and

(ii) suit before civil court is maintainable even though suitfor declaring khatedari rights has been filed before the revenueGcourt.

9. On the other hand, learned counsel for the respondents hasurged the following submissions:

3 Tenancy ActH

i) The jurisdiction of civil court is barred in respect of suits andapplications of the nature specified in the Third Schedule ofthe Tenancy Act;

ii) Acivil court has no jurisdiction to entertain suit or proceedingwith respect to any matter arising under the Tenancy Act orthe Rules made under it, provided that remedy by way of asuit, application or appeal or otherwise is provided in the Act;and

iii) The issue of jurisdiction travels to the root of or to the inherentlack of jurisdiction.

10. These submissions fall for our consideration.

11. Section 9 of the Code of Civil Procedure provides thus:

“9. Courts to try all civil suits unless barred - The Courtsshall (subject to the provisions herein contained) have jurisdictionto try all suits of civil nature excepting suits of which theircognizance is either expressly or impliedly barred.

Explanation I - suit in which the right to property or to an officeis contested is suit of civil nature, notwithstanding that suchright may depend entirely on the decision of questions as to religiousrites or ceremonies.

Explanation ll - For the purposes of this section, it is immaterialwhether or not any fees are attached to the office referred to inExplanation I or whether or not such office is attached to aparticular place.”

Section 9 empowers civil courts to try all suits of civil natureunless expressly or impliedly barred by any statute.

12. Section 256 of the Tenancy Act provides thus:

“256. Bar to jurisdiction of civil courts — (i) Save as otherwiseprovided specifically by or under this Act, no suit or proceedingshall lie in any civil court with respect to any matter arising underthis Act or the rules made thereunder, for which remedy by wayof suit, application, appeal or otherwise is provided therein.

(2) Save as aforesaid no order passed by the State Governmentor by any revenue court or officer in exercise of the powers

Aconferred by this Act or the rules made thereunder, shall be liableto be questioned in any civil court.”

Section 256 bars the jurisdiction of civil courts, save as otherwiseprovided under the Tenancy Act. Civil courts are expressly barred fromtrying suit or proceeding with respect to matters arising under theBTenancy Act or rules made under it for which remedy by way of suit,application, appeal or otherwise is provided in the Tenancy Act.

13. Section 207 of the Tenancy Act provides thus:

“207. Suits and applications cognizable by revenue court—only

(1) All suits and applications of the nature specified in the ThirdSchedule shall be heard and determined by revenue court.

(2) No court other than revenue court shall take cognizance ofany such suit or application or of any suit or application based ona cause of action in respect of which any relief could be obtainedby means of any such suitor application.

Explanation.— If the cause of action is one in respect of whichrelief might be granted by the revenue court, it is immaterial thatthe relief asked for from the civil court is greater than, or additionalto, or is not identical with, that which the revenue court couldEhave granted.”

Section 207 of the Tenancy Act states that no court other than arevenue court shall take cognizance of suits and applications of the naturespecified in the Third Schedule. Such suits can be heard and determinedby revenue court which has exclusive jurisdiction. The explanationFclarifies that if the cause of action is one in respect of which relief maybe granted by the revenue court, then it is immaterial that relief soughtfrom the civil court is greater than, in addition to or not identical to therelief sought from the revenue court. Where suit is of nature specifiedin any of the provisions of the Third Schedule, the bar under Section 256Gis attracted and the revenue courts have exclusive jurisdiction to try thesuit.

14. In Bank of Baroda v Moti Bhai[4], two judge Bench of thisCourt dealt with the question of jurisdiction under Sections 207 and 256

of the Tenancy Act. bank had sanctioned demand loan facility to therespondent for which the respondent executed promissory note and asimple mortgage in favour of the bank. On his failure to repay the loan,the Bank instituted suit in the civil court for recovery. The respondentraised preliminary objection that the suit was essentially one for enforcingthe mortgage and that the revenue court had the exclusive jurisdiction toentertain the suit by reason of the provisions contained in the TenancyAct. The Trial court dismissed the objection. Allowing the revision filedby the respondent, the High Court held that that the mortgage deed inrespect of agricultural lands formed an essential part of the cause ofaction. Upon an analysis of Sections 207 and 256 of the Tenancy Act, atwo judge Bench of this Court set aside the judgment of the High Courtwith the following reasons:

“5. combined reading of these two sections would showthat the jurisdiction of civil courts is barred only in respectof suits and applications of the nature specified in the ThirdSchedule to the Act and in respect of suits or applicationsbased on cause of action in respect of which any reliefcould be obtained by means of suit or application of thenature specified in the Third Schedule. The civil court hasno jurisdiction to entertain suit or proceeding with respectto any matter arising under the Act or the Rules madethereunder, provided that remedy by way of suit,application or appeal or otherwise is provided in the Act. loan given by Bank to an agriculturist, which is in the natureof commercial transaction, is outside the contemplation of theAct and can, by no stretch of imagination, be said to be in respectof any matter arising under the Act…The business of the Bank,in so far as lending transactions are concerned, is not to lendmoneys on mortgages but the business is to lend moneys.

8. On the question of jurisdiction, one must always haveregard to the substance of the matter and not to the form ofthe suit. If the matter is approached from that point of view, itwould be clear that, primarily and basically, the suit filed by theBank is one for recovering the amount which is due to it from therespondents on the basis of the promissory note executed byrespondent 1 and the guarantee given by respondents 2 and 3.”

(Emphasis supplied)

ASection 207 read with Section 256 of the Tenancy Act bars thejurisdiction of the civil courts in respect of suits and applications of thenature specified in the Third Schedule to the Act. The question beforeus is whether the relief claimed by the appellant can be granted exclusivelyby revenue court under the provisions of the Tenancy Act.

B15. Section 88 of the Tenancy Act provides thus:

“88. Suits for declaration of right:-

(1) Any person claiming to be tenant or co-tenant may sue fora declaration that he is tenant or for declaration of his share insuch joint tenancy.

(2) tenant of Khudkasht may sue for declaration that he issuch tenant.

(3) sub-tenant may sue the person from whom he holds fordeclaration that he is sub-tenant.

D(4) landholder other than State Government may sue personclaiming to be tenant or co-tenant of holding or tenant ofKhudkasht or sub-tenant for declaration of the right of suchperson.”

Sl. No. 5 of the Third Schedule provides thus:

E“THE THIRD SCHEDULE

Suits, Applications and Appeals under the Act(See Sections 207, 214, 215 & 217)

Sl. No. 5 in the Third Schedule read with Section 207 of theTenancy Act stipulates that suit for the declaration of right providedin Section 88 would lie before revenue court. In suit where the reliefsought for is the declaration of the right stipulated in Section 88, Sections207 and 256 read with the Third Schedule bar the jurisdiction of civilcourts and vest jurisdiction exclusively with revenue court.

16. It is admitted that the suit property is agricultural property andthe appellant has filed suit before the revenue court for the declarationof his khatedari rights.

17. Order VII Rule 11(d) of the Code provides thus:

“11. Rejection of plaint. – The plaint shall be rejected in thefollowing cases:-

(b)…(c)…

(d)Where the suit appears from the statement in the plaint tobe barred by any law;”

plaint shall be rejected where the suit appears from theaverments made in the plaint to be barred by any law. To determinewhether the relief sought by the appellant before the Trial court is arelief that may be granted by revenue court and is consequently barredunder the provisions of the Tenancy Act, the prayer in the plaint beforethe Trial court may be examined. The prayer reads thus:

“a) That the suit may be decreed in favour of the plaintiff andagainst defendants No. 1 to 3 and the gift deed executed andregistered on 10.2.2011 at Book No. 1 Volume No. 737, Page No.53, Sr. No. 2011001797 in the Office of Sub Registrar Sikar maykindly be declared as exhibitory, illegal, ab-initio, void and ineffectiveand may be cancelled to the extent of ½ share of the defendantand plaintiff Nos. 7 to 10 in the agricultural land comprised KhasraNo. 395 Rakba 0.24 Hectare, Khasra No 395 Rakba 0.24 Hectare,Khasra No. 410 Rakba0.87 Hectare situated in Village Ajeetpura,Tehsil and District Sikar and for putting note to this effect on thegift deed; copy of the judgment and decree may kindly beforwarded to the Sub Registrar, Sikar;

A(b) That defendant Nos. 1 to 5 may kindly be restrained not totransfer, mortgage, damage, sale or transfer the ½ share of theagricultural land which is in possession and cultivation of the plaintiffand defendant Nos. 7 to 10 out of the land of Khasra No. 395Rakba 0.24 Hectare and Khasra No. 410 Rakba 0.87 Hectaresituated in village Ajeetpura, Tehsil and District Sikar described inBthe said gift deed and not to disturb their cultivatory possessionand not to raise any construction thereon and not to mortgage,gift, transfer or create any charge and not to transfer the sameand not to register any mortgage deed and not to change therevenue records on the basis of the gift deed in question and furtherCnot to do such acts through his agents, servants and representativesetc. in any manner;

(c) That cost of the suit may be granted in favour of the plaintiffand against the defendant Nos. 2 and 3;

(d) Any other relief which this Hon’ble Court may deem fit andDproper be also passed in favour of the plaintiff.”

18. The appellant has prayed that the gift deed dated 10 February,2011 be declared void to the extent of the share claimed by the appellantand that respondent Nos. 1 to 5 be restrained from alienating the shareof the appellant. The civil court may decree the relief prayed only if it isEfirst determined that the appellant is entitled to khatedari rights in thesuit property. Under the provisions of the Tenancy Act, the jurisdictionto declare khatedari rights vests exclusively with the revenue courts.Only after such determination may the civil court proceed to decree therelief as prayed. The explanation to Section 207 clarifies that if the causeFof action in respect of which relief is sought can be granted only by therevenue court, then it is immaterial that the relief asked from the civilcourt is greater than, or in addition to or not identical with the reliefwhich the revenue court would have granted. In view of this matter, thecivil court may not grant relief until the khatedari rights of the appellanthave been decreed by revenue court.G

19. claimant whose khatedari rights have been decreed by arevenue court is however on different footing from claimant whosekhatedari rights are pending adjudication by revenue court. Wherethe khatedari rights are yet to be decreed, claimant must first approachthe revenue courts. The relief to declare the gift deed void and to restrain

respondents Nos. 1 to 5 from interfering with or alienating the propertyvesting in civil court may be sought for in suit by claimant in whomkhatedari rights have been decreed by revenue court.

20. In Shri Ram v ADJ[5], suit was filed before the civil court forthe cancellation of sale deed of an agricultural land on the grounds offraud and impersonation. The defendant contended that the suit is barredby Section 331 of the Uttar Pradesh Zamindari Abolition and LandReforms Act, 1950which reads thus:

“331. Cognizance of suits etc. under this Act. – (1) Except asprovided by or under this Act, no Court other than Courtmentioned in Column 4 of Schedule II shall, notwithstandinganything contained in the Civil Procedure Code, 1908 (V of 1908),take cognizance of any suit, application, or proceedings mentionedin Column 3 thereof or of suit, application or proceedings basedon cause of action in respect of which any relief could be obtainedby means of any such suit or application;

Explanation.- If the cause of action is one in respect of whichrelief may be granted by the revenue Court, it is immaterial thatthe relief asked for from the civil Court may not be incidental tothat which the revenue Court would have granted.”

The question before this court was whether recorded tenure-holder having prima facie title in his favour and in possession was requiredto file suit in the revenue court, or where the civil court had jurisdictionto entertain and decide the suit seeking relief of cancellation of voiddocument. Upholding the jurisdiction of civil court to try the suit, twojudge Bench of this Court differentiated between recorded tenure holder,and an unrecorded tenure holder with the following observations:

“7. …we are of the opinion that where recorded tenure holderhaving prima facie title and in possession files suit in the civilcourt for cancellation of sale deed having obtained on the groundof fraud or impersonation cannot be directed to file suit fordeclaration in the revenue court - reason being that in such acase, prima facie, the title of the recorded tenure holder is notunder cloud. He does not require declaration of his title to the

5 (2001) 3 SCC 24

Aland. The position would be different where person not being arecorded tenure holder seeks cancellation of sale deed by filing asuit in the civil court on the ground of fraud or impersonation.There necessarily the plaintiff is required to seek declaration ofhis title and, therefore, he may be directed to approach the revenuecourt, as the sale deed being void has to be ignored for giving himBrelief for declaration and possession.”

21. Though the above principles emerge in the context of the barunder Section 331 of the Uttar Pradesh Zamindari Abolition and LandReforms Act, 1950, the logic of the judgment extends to the bar underSection 207 read with Section 256 of the of the Tenancy Act. recordedCkhatedar stands on different footing compared to claimant seekinga decree of their khatedari rights. claimant seeking decree ofkhatedari rights is barred from filing suit in the civil court prior to theirkhatedari right being decreed by revenue court when the relief soughtfor by the civil court includes determination of khatedari rights.

22. In the present case, the High Court has proceeded on thebasis that the suit seeking declaration of the gift deed relating to disputedagricultural land situated in Sikar as void and restraining RespondentNos. 1 to 5 from transfer or sale of the agricultural land before the civilcourt is squarely covered by the bar to the jurisdiction of the civil courtEunder the provisions of the Tenancy Act. The claim of the appellant tokhatedari rights is pending adjudication by revenue court which hasthe exclusive jurisdiction to adjudicate upon such claim. The appellanthas no right to seek relief before the civil court without first getting hiskhatedari rights decreed by the revenue court.

F23. For the above reasons, we find that there is no merit in thechallenge preferred by the appellant to the impugned judgment and orderof the High Court. The appeals shall, accordingly stand dismissed. Thereshall be no order as to costs.

GKalpana K. Tripathy

Appeals dismissed.