A sale deed executed without legal necessity concerning ancestral property is voidable, allowing civil court jurisdiction for cancellation.

JUDGMENT

1. Though, the matter has come up for orders on stay application. At the request of learned counsel for the parties, they have been finally heard as record of the trial court has already been received.

2. This appeal is directed against the judgment dated 01.04.2019 passed by the trial court, whereby the suit filed by the appellants for cancellation of sale deed and partition has been held to be premature, qua one relief and therefore, the suit has been dismissed with liberty to file a fresh suit qua other relief.

3. The suit was filed by the plaintiffs, inter-alia, with the submissions that the agriculture land situated at Badgaon, Tehsil Shivganj, District Sirohi was ancestral property; a revenue suit seeking declaration of tenancy rights and partition was pending before the SDO, Shivganj, however, as the said suit was dismissed for non-prosecution, the defendant No.1 Bhanwar Puri (since deceased) executed sale deed in favour of defendant No.2, which was void, as such, the sale deed be cancelled and the land be partitioned by metes and bounds.

4. Further submissions have been made that a house was situated at Subhash Nagar, which was also joint family property and the plaintiffs were entitled for its partition.

5. After the written statement was filed by the defendant Nos. 1 to 5 & 7, an application under Order VII, Rule 10 CPC was filed by the defendant No.6, inter-alia, claiming that qua the agricultural land the suit seeking declaration of khatedari rights was already pending before the revenue court and therefore, the plaint be returned.

6. The application was contested by the plaintiffs, inter-alia, claiming that the reliefs claimed in both the suits were different and therefore, the application be dismissed.

7. The trial court, by its impugned order dated 01.04.2019, came to the conclusion that the cancellation of the sale deed can only take place after the khatedari rights of the plaintiffs were declared and based on the said determination came to the conclusion that the suit seeking cancellation of the sale deed was premature and therefore, ordered that as the plaintiffs have clubbed two different / separate reliefs, dismissed the suit giving liberty to the plaintiffs to file a fresh suit seeking partition of the residential property.

8. Learned counsel for the appellants made submissions that the trial court was not justified in dismissing the suit on an application filed under Order VII, Rule 10 CPC.

9. Submissions were made that even qua the agriculture land regarding which the sale deed has been executed against the interests of the plaintiffs, the suit was maintainable before the Civil Court and that the trial court has gone beyond its jurisdiction in dismissing the suit and granting liberty to file a fresh suit qua the residential property.

10. Learned counsel appearing for the respondents made submissions that once the suit filed by the plaintiffs was pending before the revenue court regarding declaration of khatedari rights, there was no reason for filing a fresh suit and the trial court was, therefore, justified in dismissing the suit giving liberty to file a fresh suit, qua the residential property and therefore, the order impugned does not call for any interference.

11. I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

12. A bare look at the plaint averments indicate that the case of the plaintiffs was that the transfer deed executed by the defendant No.1 Bhanwar Puri (since deceased) of the ancestral agricultural land, was void and a declaration in this regard was sought.

13. This Court in Hasti Cement Pvt. Ltd., Jodhpur & Anr. v. Sandeep Charan & Ors.\ 2018(2) DNJ (Raj.) 421 has laid down that a suit seeking cancellation of the sale deed based on the ground that the property in question was ancestral would be maintainable before the civil court. It was, inter-alia, laid down as under: -

"25. In view of the above discussion, the present