Mr. Jainendra Kumar Ranka, J.This instant revision petition is directed against order dt 24.8.2016 passed by Additional District Judge No.20, Jaipur Metropolitan, HQ at Chomu, in Civil Suit no.28/2015 whereby the application under Order 7, Rule 11 CPC filed by the defendant/petitioners has been dismissed.

2. The brief facts noticed for disposal of the instant petition is that the plaintiff Bhairav Grah Nirman Sahkari Samiti filed a suit for specific performance of contract alleging that the defendant/petitioners along with their mother had agreed to sell their rd share in khasra no. 564 (1.26 hectare) situated in village Bainad, Daulatpura, @ Rs.55,000/- per bigha and after receiving Rs.50,000/- as advance money they executed an agreement to sell on 3.11.1991. It was averred that the balance sale consideration was to be paid by mid June 1993 and full payment was made to the defendant/petitioners and there mother Smt. Dakha Devi by the plaintiff society. Thereafter without disclosing this fact the defendant/petitioners and their mother sold rd share to Mitra Grah Nirman Sahakari Samiti @ Rs.1 lakh per bigha and with a total consideration of Rs.3,80,000/- and received full payment and also executed an agreement dated 5.1.1994. When Jagan Singh, President of Mitra Grah Nirman Sahkari Samiti came to take possession, at that time hot altercations took place in between the representative of the plaintiff and President, Mitra Grah Nirman Sahkari Samiti Ltd., however, since Mitra Grah Nirman Sahkari Samiti was not willing to develop the said land and on account of disputes they agreed to sell the entire land holding vide agreement dated 30.5.1998 and the plaintiff paid the entire amount to Mitra Grah Nirman Sahkari Samiti and took possession. Thus, the plaintiff acquired/purchased entire khasra no.564 admeasuring 1.26 hectare. Since the plaintiff purchased the entire share and having made full payment, repeated requests were made on behalf of the plaintiff to the defendant/petitioners to get the sale deed registered but the defendant/petitioners were deferring the matter saying that the registration would be got done shortly and taking into consideration that the defendant/petitioners are delaying registration of the sale-deed, accordingly a suit for specific performance of contract was filed.

3. An application under Order 7, Rule 11 CPC was filed by the defendant/petitioners before the trial court bringing on record the fact that the suit was barred under Section 42 of the Rajasthan Tenancy Act as it was claimed that the defendant nos.1 and 2 and their mother are "Meena" by caste which being admittedly Scheduled Tribe community, whereas the alleged purchasers of the disputed land are societies which do not come under the purview of ST category and as such the alleged agreements to sell entered into by the societies with the defendant/petitioners being khatedars are void as per mandate of Section 42 of the Rajasthan Tenancy Act and thus, the alleged agreements being void are not enforceable in law and the suit is barred by law and prayed that the suit be rejected. However, the trial court vide impugned order has held that it is a mixed question of fact and law and merely mentioning "Meena" is not sufficient and taking into consideration the averments made in the plaint the trial court held that it is not sufficient to reject the suit and there is no bar in investigating further even u/s 42 of the Rajasthan Tenancy Act and all facts could be taken into consideration after leading evidence, and thus rejected the application.

4. Learned counsel for the petitioners vehemently contended that bare perusal of the plaint itself clearly shows and indicates that the defendant/petitioners have been shown to be (1) Chothuram son of Late Shri Bhura Meena, (2) Birdi Chand son of Late Shri Bhura Meena, (3) Ramniwas son of Late Shri Kanhayalal Meena, and (4) Madan Meena son of Late Shri Kanhayalal Meena, and all are admittedly "Meena" by caste, and nothing more was required to be proved by the defendant/petitioners. Learned counsel contended that admittedly "Meena" community of Rajasthan comes under the category of Scheduled Tribe and there is no case made out of the plaintiff/respondent that "Meena" caste is not included in the category of ST and further contended that the court can take judicial notice that as per the Constitution (Scheduled Tribes) Order, 1950 "Meena" community of Rajasthan is included in the category of ST and this being an admitted fact, the suit was barred and the application under Order 7, Rule 11 CPC ought to have been accepted and relied upon Banwari Lal v. Anand & Ors. 2012 (2) DNJ (Raj.) 1137.

5. Per contra, learned counsel for the respondent vehemently contended that the order of trial court is just and proper and is not required to be interfered with and has rightly dismissed the application under Order 7, Rule 11 CPC. Learned counsel further contended that there is no harm when the trial court has observed that this issue can be decided after taking into consideration the evidence and has rightly held that it is a mixed question of law and fact and such could not be considered at the stage of Order 7, Rule 11 CPC. Learned counsel also contended that there are several judgments of this court in identical matters under Order 7, Rule 11 CPC where this court had held that at the stage of Order 7, Rule 11 CPC the suit cannot be rejected and it can only be after trial and after collecting evidence and relied on Chomu Sahakari Kray Vikray Samiti Ltd. v. Jagdeesh Prasad Meena & Ors. 2013 (3) WLC (Raj.) 215, Radhey Shyam Sharma v. Shrimat Mahaveer Buildcon Pvt. Ltd. & Ors (S.B. Civil Revision Petition No.81/2013, decided on 4.11.2016), Smt. Sharda Devi v. Iqbal Singh & Ors. 2015 (2) DNJ (Raj.) 503, Jagdish Prasad Meena v. Chomu Sahakari Kraya Vikraya Samiti Ltd. (Civil Writ Petition No.14093/2014, decided on 6.2.2015).

6. I have considered the arguments advanced by the learned counsel for the parties and perused the material on record including the judgments cited.

7. In my view, the finding reached by the trial court is just and proper and is not required to be interfered with. The trial court has rightly found that at the stage of disposing of application under Order 7, Rule 11 CPC this cannot be considered as it is a mixed question of law and fact and only after recording of evidence, such finding could be reached and in my view, also there is no harm in taking into consideration the evidence which may bring out the disputed facts on record. This court in the case of Chomu Sahakari Kray Vikray Samiti Ltd. v. Jagdeesh Prasad Meena (supra), while considering an identical petition of a person of "Meena" by caste, took into consideration Section 42 of the Rajasthan Tenancy Act, and observed as under :-

"7. From the bare perusal of the said provision it transpires that there is general bar on the sale, gift and bequest by khatedari tenants of his interest in the part or whole of his holding in favour of a person who is not a member of schedule caste or schedule tribe. Though there cannot be any disagreement to the proposition of law laid down by the Apex Court that the society or company incorporated under the relevant statutes would be juristic person and could not be said to be member of scheduled caste or scheduled tribe, it requires to be noted that there is no bar under Section 42(b) of the Tenancy Act against filing of the suit. It may be a different thing that ultimately the appellant-plaintiff may not succeed in the suit on merits, in view of the said bar contained in Section 42, nonetheless in absence of any specific provision contained in the Tenancy Act barring the filing of the suit, the plaint of the appellant-plaintiff cannot be rejected under Order 7, Rule 11 (d) of CPC. As rightly submitted by the learned counsel for the appellant, whether the land in question is an agricultural land or not and whether the respondents are khatedari tenants or not, and whether the suit is barred by limitation or not, would be the questions which could be decided considering the evidence in the suit only. The learned counsel for the respondents has failed to point out as to how the suit filed by the plaintiff could be termed as misuse of process of law or vexatious. In that view of the matter, the impugned order passed by the trial court deserves to be set-aside and the trial court is required to be directed to decide the suit in accordance with law and expeditiously."

7.1 The other judgments relied upon by the learned counsel for the respondents are also on the same proposition and this court need not refer to such other authorities just to multiply.

7.2 The judgments relied upon by the learned counsel for the petitioners in the case of Banwari Lal v. Anand (supra) is distinguishable on facts.

8. In view of what has been observed herein above, the revision petition stands dismissed. However, this court is satisfied to direct the trial court to decide the suit expeditiously in accordance with law preferably within a period of 15 months from the date certified copy of this order, is received by it.