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ASHOK KUMAR JAIN
Arvind Sharma, S/o. Bhawanishankar – Appellant
Versus
Girdhar Gopal Sharma, S/o. Bhawanishankar – Respondent
The revision petition filed by defendant no. 2 challenges the order dated 08.04.2021 dismissing an application under Order VII Rule 11 CPC in civil suit no. 27/2019 before the Civil Judge, Kanwas, Kota. (!)
Plaintiffs filed a civil suit for declaration and permanent injunction regarding agricultural land, claiming to be legal representatives of Bhawani Shankar and challenging a gift deed dated 20.01.2017 executed by defendant no. 1. (!) (!)
A prior revenue suit for declaration of khatedari rights, correction of entries, and division (case no. 7/2018) was filed by some plaintiffs before the Sub-Divisional Officer, Kanwas, under Sections 53, 88, 89, and 188 of the Rajasthan Tenancy Act. (!) (!)
The civil suit was filed on 21.12.2019 after plaintiffs learned of the gift deed during the revenue suit proceedings. (!)
Respondents argued that the civil suit challenging the gift deed (of alleged ancestral property) is maintainable in civil court, distinct from the revenue suit, and that Order VII Rule 11 issues are not triable at that stage as they involve mixed questions of fact and law or defenses. (!)
The plaint discloses a cause of action by challenging the gift deed primarily, with ancillary injunction relief
ORDER :
(Ashok Kumar Jain (V. J.), J.) :
1. Instant revision petition is preferred by petitioner defendant no.2 aggrieved from order dated 08.04.2021 in civil suit no. 27/2019 passed by learned Civil Judge, Kanwas, District Kota whereby an application preferred under Order VII Rule 11 of CPC was dismissed.
2. Learned counsel for petitioner while relying upon grounds of revision petition has submitted that the plaintiff has filed a civil suit for declaration and permanent injunction for agriculture land as legal representative of Bhawani Shankar and challenged the gift deed dated 20.01.2017. He also submitted that a suit for declaration of khatedari right and correction of entries and division has already been filed by plaintiff Girdhar Gopal, Kamla Devi, Suchi Sharma before the Sub-Divisional Officer, Kanwas. He also submitted that during pendency of this revenue suit, the plaintiffs have filed another suit before the civil court, hence, same is directly hit by judgment of Hon’ble Supreme Court in case of Pyarelal Vs. Shubendra Pilania & Ors. (2019) 3 SCC 692. He also submitted that unless the khatedari rights are declared in favour of plaintiffs, the civil suit to challenge the gift
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