The Civil Court must refer issues of khatedari rights to the Revenue Court and cannot reject a plaint without establishing such a jurisdictional inquiry.

ORDER :

1. Leave granted.

2. Apart from the legal issue involved, a strange family story unfolds where an old man attempts to protect his land from his children and grandchild, allegedly wayward, by gifting it to his great-grandchildren. This man, Rameshwar was in possession and enjoyment of 3.16 hectares of land as obtained from his father Chokharam. Rameshwar had two sons and one daughter, Mahavir, Arjun and Jinku respectively and a grandson Dalchand, born to Arjun. The gift deed was made by Rameshwar to the children of Dalchand, namely, Mukesh, Ramesh and Praveen. The children of Rameshwar, Arjun and Jinku filed a suit challenging the gift deed on the contention that they along with Mahavir, the 5th defendant and Rameshwar, the 4th defendant had 1/4th share each of the ancestral undivided property of the Joint Hindu Undivided Family. The three minors were the defendant Nos. 1 to 3 and the 6th defendant was Dalchand, the grandson who died during the pendency of the suit.

3. Rameshwar, concerned with preservation of his property and to sustain the gift deed in favour of his great grandchildren, filed an application under Order VII Rule 11 of the CIVIL PROCEDURE CODE before the Trial Court. He pleaded that Mahavir, his elder son and Jinku had separated from the family after their marriage and were given their due share, despite which the former tried to cheat him of the property relying on a Will, allegedly executed by the wife of Rameshwar, who was mentally unstable. Arjun, his second son is alleged to have murdered his wife upon which Dalchand, the grandson’s protection was taken over by Rameshwar. Protection of his great-grandchildren; fell on him when Dalchand too hit the bottle and wasted himself away, forcing him to gift the property to the great-grandchildren. Other than the pitiable story, it was contended that the Civil Court could not have considered the khatedari rights of the plaintiff which definitely will have to be determined by the Revenue Court as per the Rajasthan Tenancy Act, 1955. The Trial Court rejected the plaint and the High Court by the impugned order confirmed such rejection on that sole ground.

4. We heard Ms. Shobha Gupta, Senior Advocate appearing for the appellants/plaintiffs and Mr. Gagan Gupta, Senior Advocate appearing for the respondents/defendants.

5. Based on the Tenancy Act, it was contended on behalf of the appellants that if a suit is filed where the question of khatedari rights arise then necessarily the Civil Court has to raise an issue and refer it to the Revenue Court for consideration. In the present case in fact before the civil suit was filed, the plaintiffs had approached the Court of Sub-Divisional Court, Sikar with a suit for declaration and permanent injunction numbered as Suit No. 01 of 2013 produced as Annexure A-1 along with the application for permission to file additional documents. On behalf of respondent it was submitted that unless that suit is finalized, there is no question of a challenge against the gift deed being considered.

6. As is found from the Tenancy Act, if a question of tenancy arises in a civil dispute, the Civil Court would have to raise an issue and refer it, for consideration of the tenancy rights, to the Revenue Court. In the present case the finding is also that only the Revenue Court has the jurisdiction to decide khatedari rights based on which the plaint was rejected; while the suit for the relief to declare the tenancy rights was pending before the Revenue Court, which fact was not noticed by the Trial Court and the High Court. Even if the suit before the Revenue Court was not pending, if a dispute is raised with respect to khatedari rights b