KAN SINGH, J.—This is a defendants second appeal. The subject matter of the litigation is a field Khasra No. 35 measuring 43 bighas and 14 biswas situated in village Gudawadi, Tehsil Sujangarh, District Churu. The field originally belonged to one Kashiram. Chisaram defendant was his son and Raturam his grandson from another son Phusaram. Phusaram sold this field to Rooda Ram, Gidha Ram and Natharam defendant appellants. Rattu Ram was a minor at the time. Consequently a suit was brought on his behalf by his grand-mother Smt. Mohari as his next friend for cancellation of the sale deed executed by Ghisaram in favour of the defendant-appellants. It was averred that Ghisa Ram had no right to sell the field. The defendant appellants contested the suit. They alleged that Kashi Ram had two sons Ghisa Ram and Phusa RamJ but after Phusa Rains death his wife performed Nata with one Rekharam resident of Pipli. Rattu Ram was born of that union. In other words, according to the defendant-appellants, Rattu Ram was not the son of Phusa Ram. They took the stand that Ghisa Ram being the sole owner of the field had sold it to them and had thus passed as a complete title.

2. The learned Civil Judge, Ratangarh, in whose court the suit was filed, framed a number of issues. As the defendants had inter alia taken the plea that the suit was not triable by the civil court, the learned trial Judge framed issue No. 5 regarding the same. I need not advert to the other issues on account of the conclusion that I have reached regarding the competence of the civil court to try the suit. Both the courts held that the civil court had the jurisdiction to try the suit. The trial court eventually granted a decree in favour of the plaintiffs for cancellation of the sale deed dated 4-6-62 in favour of the defendant appellants by Ghisa Ram.

3. The defendants then went up in appeal to the court of the learned District Judge at Bikaner. The learned District Judge reached the conclusion that Ghisa Ram and Rattu Ram had half share each in the field in dispute. Accordingly, he up held the sale in favour of the defendants to the extent of half share of Ghisa Ram in the field in question. In the result, he partially accepted the appeal and declared that the sale executed by Ghisa Ram in favour of the defendant-appellants shall stand cancelled and be ineffective qua the half share of Rattu Ram in the field. The trial courts decree was thus ordered to be modified in this regard.

4. It is in these circumstances that the defendants have come up in further appeal to this court.

5. Regarding the question of civil courts jurisdiction the learned District Judge has observed thus :

"Even if the plaintiff, had sued for possession of the field in question and the civil court had passed a decree for possession of the field being given to Ratturam, that decree could not have been executed by the civil court. The plaintiff had to go to the Revenue Court to seek the relief of possession. The learned counsel for the appellant relied upon two cases, Indian Law Reports 34 Allahabad series page 140—Shankar Lal and another (defendants) vs. Saroop Lal and another, plaintiffs, and A.I.R. 1952 Vindhey Pradesh p. 69 Mst. Laxmi Bai and another, defendants appellants vs. Lalchand Chelaram and another, plaintiffs respondents, to contend that without seeking the relief of possession, the plaintiff could not be granted a decree for cancellation of the sade deed. I have carefully gone through these rulings and have to say that they do not apply to the facts of the instant case. In the referred ruling the transferor himself wanted to get the deed cancelled and the claim of the transferor to the land was also not held to be genuine. In the instant case, as I would discuss here after, Ghisaram had no right to dispose of the share of Raturam in the field in question. Raturam is not the transferor of the field also. Raturam is also not living in the guardianship of the transferor Ghisaram. In these circumstances

Click Here to Read the rest of this document