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IN THE HIGH COURT OF RAJASTHAN
PUSHPENDRA SINGH BHATI, J.
Bagaram and Others – Appellants
Versus
Balkishan alias Balramkishan and Anothers – Respondents
S.B. Civil Writ Petition No. 2117 of 2019
Decided on : 16-05-2019
Rajasthan Tenancy Act – Sections 88 and 183 – CPC – Section 151 – Petitioners 2 to 10 executed power of attorney in favor of petitioner 1, which duly notarized petitioners challenged registered sale deed executed by respondent1- in favor of respondent 2-Govindpuri. petitioners also sought injunction by filing suit which is being heard by learned Additional District Judge – Held, Court finds that civil court may decree relief prayed by petitioners only if it is first determined that petitioners are entitled to khatedari rights in suit property, respondents is clearly applicable, whereas judgments cited by learned counsel for petitioners are not applicable to facts and circumstances of present case, stay of suit subjudice is not going to affect rights of either of the parties. Once the khatedari rights are determined by the revenue court, it shall be open for petitioners to agitate their suit. It is further made clear that relief with respect to declaration of sale deed as null and void can be granted by revenue court, as laid down in aforementioned precedent law – Writ petition is dismissed. (Para 25, 26, 27)
Facts of the case:
Petitioners 2 to 10 executed power of attorney in favor of petitioner 1, which duly notarized petitioners challenged registered sale deed executed by respondent1- in favor of respondent 2-Govindpuri petitioners also sought injunction by filing suit which is being heard by learned Additional District Judge.
Findings of the court:
Court finds that civil court may decree relief prayed by petitioners only if it is first determined that petitioners are entitled to khatedari rights in suit property, respondents is clearly applicable, whereas judgments cited by learned counsel for petitioners are not applicable to facts and circumstances of present case, stay of suit subjudice is not going to affect rights of either of the parties. Once the khatedari rights are determined by the revenue court, it shall be open for petitioners to agitate their suit. It is further made clear that relief with respect to declaration of sale deed as null and void can be granted by revenue court, as laid down in aforementioned precedent law.
Result: Writ petition is dismissed
JUDGMENT :
PUSHPENDRA SINGH BHATI, J.
This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs:
2. Brief facts of this case, as noticed by this Court, are that the petitioners No. 2 to 10 had executed a power of attorney in favour of petitioner No. 1, which was duly notarized on 12.12.2017.
3. The petitioners had challenged the registered sale deed dated 13.12.2010 executed by respondent No. 1-Balkishan in favour of respondent No. 2-Govindpuri. The petitioners also sought injunction by filing a suit on 05.05.2013, which is being heard by the learned Additional District Judge No. 5, Jodhpur Metropolitan.
4. The bone of contention in the present case is an impugned order passed in favour of the respondents upon an application preferred by them for keeping the proceedings stayed vide application dated 17.08.2016 under Section 10 read with Section 151 CPC.
5. The claim of the respondents was that a revenue suit bearing No. 335/2011 titled as ‘Baga Ram v. Govindpuri’ was pending, and thus, since the reliefs claimed were overlapping therefore, the proceedings in the suit for cancellation of the registered sale deed may be kept in abeyance.
6. The impugned order has been passed accepting the plea of res subjudice raised by the respondents on 16.11.2017. The review petition was filed against the said order, but the same was also dismissed on 07.01.2019.
7. The revenue suit instituted under Sections 88 and 183 of the Rajasthan Tenancy Act by the respondents was dismissed on 30.08.1976 and the revenue appeal No. 171/1976 was also dismissed on 22.04.1980.
8. The parcha bayan and the land record, which were entered in favour of the petitioners and was entered by an amendment on 19.12.1957 has been set aside in the revenue appeal No. 16/59 on 21.02.1959.
9. The respondents laid a challenge to such khatedari entries in favour of the petitioners and the same have been consolidated in revenue suit No. 161/71.
10. The aforesaid challenge laid by the respondents was dismissed on 30.08.1976, against which an appeal was preferred bearing No. 371/76, which has also been dismissed on 31.12.1977.
11. Learned counsel for the petitioners submitted that the learned courts below have failed to appreciate that the revenue suit filed under Sections 88 and 183 of the Rajasthan Tenancy Act preferred by the respondents was dismissed on 30.08.1976 and the revenue appeal was also dismissed on 22.04.1980.
12. Learned counsel for the petitioners further submitted that even after dismissal of such proceedings by the learned authorities one after Another, the application for taking the civil suit preferred by the petitioner as res subjudice is unlawful and the consequential orders passed are contrary to law.
13. Learned counsel for the petitioner also submitted that once the revenue suit preferred by the respondents under Section 88 and 183 of the Rajasthan Tenancy Act has been dismissed, then the indulgence being granted by the civil court to the only application of the respondents was bad in the eye of law.
14. The recording of khatedari rights in favour of the petitioners vide order dated 19.12.1957 has also been set aside in appeal No. 16/59 on 21.02.1959, and thereafter, the whole issue was consolidated in suit No. 161/71.
15. Learned counsel for the petitioners further submitted that non-entry of the khatedari rights in favour of the petitioners inspite of such proceedings is wholly illegal, and therefore, the res subjudice proceedings are also bad in the eye of law.
16. Learned counsel for the petitioners also submitted that the relief has to be considered for the petitioners under Section 31 of the Specific Relief Act, which can be granted only by the civil court and the petitioners have not sought declaration of their khatedari rights.
17. In support of his submissions, learned counsel for the petitioners relied upon the judgment rendered by this Hon'ble Court in Rampal v. Sub- Divisional Officer, Sujanga
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