A civil suit can proceed despite a pending revenue suit if the relief sought is not barred by law, as per the interpretation of Order VII Rule 11 CPC and Section 207 of the Rajasthan Tenancy Act.

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 deed is not maintainable before the civil court. He also submitted that the civil suit preferred by plaintiff is barred by law under Section 207 of Rajasthan Tenancy Act, therefore, the civil suit is liable to be rejected under Order VII Rule 11 of CPC. The trial court has committed error while dismissing the application preferred by the petitioners.

3. Aforesaid contentions were opposed by learned counsel for respondent on the ground that a declaratory suit to challenge the gift deed executed by defendant no.1 is maintainable before the civil court. He also submitted that in the gift deed itself it was mentioned that the land in question is ancestral property and co-sharers are entitled to their share but to deprive the plaintiffs from obtaining their share, the questioned gift deed was executed by defendant no.1 in favour of defendant no.2. He also submitted that the suit before the Revenue Court is different than present suit, hence, same cannot be dismissed on the ground that before declaration of khatedari right, a suit cannot be filed. He also submitted that the grounds raised by the petitioner is a matter of defence and same cannot be considered while deciding application under Order VII Rule 11 CPC. He also submitted that the ground raised herein is a mixed question of fact and law.

4. Heard learned counsel for the parties and perused the material available on record.

5. A perusal of record reflects that a civil suit for declaration and permanent injunction was filed by six plaintiffs Girdhar Gopal Sharma, Shashi Sharma, Santosh Joshi, Sheela Bhardwaj, Seema Sharma, Shuchi Sharma against Bhawanishankar, Arvind Sharma and Rajendra Sharma. In Para no.4 of the plaint pedigree of defendant no.1 Bhawanishankar is mentioned, which reflects that the wife of Bhawanishankar has already expired. The plaintiffs have claimed that the property in para no.2 is an ancestral property and not a self acquired property of Bhawanishankar, therefore, Bhawanishankar has no right to bequeath or execute a gift deed in favour of defendant no.2 in order to deprive other co-sharers from the property. The plaint itself indicates that primarily this gift deed dated 20.01.2017 was challenged in civil suit and a relief of declaration was sought against defendants with regard to sale deed. Further, ancillary relief of injunction was claimed in the suit.

6. In case of Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra) (D) through LRs and Ors. AIR 2020 SUPREME COURT 3310, Hon’ble Supreme Court while referring the cases of Azhar Hussain vs Rajiv Gandhi 1986 AIR 1253, Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 9 SCC 512, Saleem Bhai And Ors vs State Of Maharashtra And Ors. 2003 (1) SCC 557, I.T.C. Limited vs The Debts Recovery Appellate Tribunal & Ors. 1998 (2