JUDGMENT :

ASHOK KUMAR GAUR, J.

The instant petition has been filed by the petitioner challenging order dt.26.09.2017 passed by the Board of Revenue whereby the revision petition filed by the private-respondent has been allowed and order of the Additional Collector, Sikar dt.02.08.2016 has been set aside.

2. Brief facts are that the petitioner had filed a suit for declaration, partition and permanent injunction under Section 88, 183 & 288 of the Rajasthan Tenancy Act, 1956 and Section 136 of the Land Revenue Act, 1956.

3. The respondents during pendency of suit filed an application under Order 7 Rule 11 CPC. It was pleaded on their behalf that suit filed by the petitioner may be dismissed. It was pleaded that father of the petitioner had already filed a suit which was dismissed on 24.06.2016 and further the relinquish deed was also executed on 08.11.2006 in favour of brother of the petitioner-Shankarlal. The application further made a mention that since the petitioner had relinquished his rights, there was no cause of action in the suit and as such in absence of cause of action, the suit was liable to be dismissed.

4. The Court of Additional Collector, Sikar, after hearing both the parties, dismissed the application filed by the respondent under Order 7 Rule 11 CPC The said Court recorded a finding that the suit filed by the petitioner was in respect of declaration, partition and permanent injunction and as such for claiming these rights suit was not barred by any law. The Court further observed that grant of relief in the suit was to be considered after taking evidence of both the parties and after affording proper opportunity to both the parties.

5. The respondents feeling aggrieved against the order dt.02.08.2016, filed revision petition under Section 230 of the Rajasthan Tenancy Act, 1955. The Board of Revenue vide order dt.26.09.2016 has allowed the application of the respondents and suit as such has been dismissed. The Board of Revenue has recorded in its order that father of the petitioner has already filed second appeal No. 2127/2016 before the Board of Revenue and the same is still pending. The Board of Revenue further recorded a finding that after decision of the appeal of the father of the petitioner, rights of the parties will be decided and the parties were free to bring fresh suit after decision of the second appeal.

6. Mr. Anoop Dhand, counsel for the petitioner has submitted that application under Order 7 Rule 11 CPC has wrongly been decided by the Board of Revenue. Learned counsel has submitted that application itself was not maintainable as the case of the respondents did not fall in any of exceptions/provisions which have been given under Order 7 Rule 11 CPC for rejection of plaint. Learned counsel has submitted that the suit filed by the petitioner discloses cause of action and as such it could not be held that suit was not maintainable. Learned counsel has further submitted that filing of appeal by father of the petitioner before the Board of Revenue, has no concern with the present suit, where the petitioner claimed his right independently.

7. Per contra, Mr. U.P. Gaur, counsel for the respondents has submitted that application No. 71693/2018 has been filed in the writ petition for dismissal of writ petition as the same has become infructuous on account of suit filed by the petitioner is pending before the competent Court i.e. Senior Civil Judge, Dataramgarh, District Sikar where the relinquish deed dt.08.11.2006 is challenged.

8. Learned counsel has submitted that once the basis of suit is relinquish deed dt.08.11.2006 and the same being challenged in Civil Court, the present writ petition itself has become infructuous. Learned counsel has submitted that the prayer sought in the writ petition for quashing the relinquish deed cannot be granted and it is the jurisdiction of Civil Court which can alone pass the appropriate order. Learned counsel has submitted that two parallel remedy cannot be availed by the petitio