Jammu & Kashmir High Court
Pratibha Khullar vs Kamal Kumar And Anr. on 17 November, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
C. Rev. No.60/2010
Date of decision: 17.11.2017
Pratibha Khullar Vs. Kamal Kumar & anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Appellant(s) : None.
For Respondent (s) : Mr. H. L. Koul, Advocate.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. This civil revision is directed against order dated 31.03.2010 passed by learned City Judge, Jammu, in a civil suit titled 'Kamal Kumar Vs. Parkash Megh and anr.' in File No.132/civil whereby preliminary issues regarding jurisdiction and maintainability of the suit, have been decided against the petitioner.
2. In the petition, it is stated that respondent-Kamal Kumar filed a civil suit against the petitioner for declaration declaring the plaintiff in authorized possession of land measuring 10 ½ marlas under Khasra No.189 situated at Chak Changerwan, Jammu with consequential relief of permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession and uninterrupted possession of the plaintiff over the suit land directly or indirectly and further restraining defendant No.2, in particular, from claiming the land in possession of the plaintiff which has been restored to her by the revenue agency. The petitioner was put to notice and filed the written statement in the suit and specific objections regarding jurisdiction of the Court and maintainability of the suit were raised. The Court below framed issues in the suit, which included the issue regarding jurisdiction and maintainability of the suit. That the issues of jurisdiction C. Rev. No.60/2010 Page 1 of 8 of civil court and maintainability of the suit were treated as preliminary issues but the Court below has while ignoring the law on subject, decided these issues erroneously. That the petitioner apprised and argued threadbare regarding the jurisdiction and maintainability of the suit but the Court below has failed to apply judicial mind to the facts and law on the case. The petitioner challenges the order impugned on the following grounds:-
a) That the order impugned is against law and facts, and same is liable to be set aside and consequential suit is liable to be dismissed.
b) That order impugned is a non speaking order as the case law referred by the petitioner has not been considered or even discussed in the order impugned as such same is liable to be set aside.
c) That during arguments the respondents supported the case by two judgments cited as AIR 1987 J&K page 48 and 1985 KLJ but the petitioner strongly objected to the said judgments as the same were not applicable to the case in hand because the judgments have been passed prior to the amendment of Section 19 of the J&K Agrarian Reforms Act vide J&K Agrarian Reforms (Amendment) Act 1988. That the Court below has neither discussed the said judgments nor appreciated the arguments in this regard, which makes the order impugned nonest in the eye of law which amounts to miscarriage of justice.
d) That the court below has wrongly held that none of the authorities under the Act has been given power to decide any matter pertaining to restraining any party through permanent prohibitory injunction. The petitioner invited attention of the Court to the judgment cited as 2006 JKJ 582 which has made reference to Section 20 of the Act read with Rule 58 of the Agrarian Reforms Rules. The Court below has not considered this aspect also as such order impugned is liable to be set aside and consequently the suit is liable to be dismissed.
e) That the Court below has decided the issue No.2 pertaining to the maintainability of the suit against the defendant/petitioner holding that in view of the finding recorded in issue No.1, issue No.2 is decided against the defendants. The manner in which issue No.2 has been decided clearly shows non application of mind to the facts of the case which make the order impugned liable to be set aside.
C. Rev. No.60/2010 Page 2 of 8d) That the respondent filed the suit alleging that he is in possession of 10 ½ marlas falling under Khasra No.189 situated at Moza Chak Changerwan, Jammu on the basis of agreement to sell allegedly executed by defendant No.1. Defendant No.1 denied the execution of the agreement to sell as well as the handing over of the possession to the plaintiff/respondent No.1 and categorically stated that the possession of the suit land is with petitioner/defendant No.2. It was further alleged by the defendant No.1 that he was having no authority to sell the land as the defendant No.1 was the tenant of the petitioner/defendant No.2 in terms of the Provisions of J&K Agrarian Reforms Act.
e) That the order impugned is an order passed in wrong exercise of jurisdiction which has caused miscarriage of justice to the petitioner. Moreover, the issue regarding jurisdiction of the Court as well as maintainability of the suit, the Court would have decided the suit in favour of the petitioner and great prejudice to the rights of the petitioner, as such, the order impugned is liable to be set aside while exercising powers under Section 115 CPC.
3. I have considered the rival contentions. The brief facts of case is that in the suit filed by plaintiff/respondent No.1, it is stated that plaintiff came to know that the defendant No.1 owns land at Moza Chak Changerwan Jammu and as such approached him for a plot of land. That the defendant satisfied the plaintiff on the basis of Khasra Girdawrari and mutation No.998 dated 24.3.1989 that he was the owner of total land measuring 24 kanals and 16 marlas at the said place. That after complete satisfaction, the plaintiff asked the defendant No.1 for sale of plot which was seen by the plaintiff and defendant No.1 agreed to sell but at first instance the defendant No.1 agreed for execution of Agreement to Sell for handing over the possession on payment of full sale consideration, with a promise that the defendant No.1 will thereafter execute a sale deed in favour of the plaintiff. That the defendant No.1 executed Agreement to Sell with the plaintiff on the basis of payment of full sale consideration on 27 th August, 1997 at Jammu through his power of attorney Sh. Raghubir. That after executing the agreement to sell, the physical possession of the plot of land was handed over to the plaintiff. That the plaintiff as such took over the C. Rev. No.60/2010 Page 3 of 8 possession of said plot of land and immediately thereafter constructed one room on the said plot and rest of the plot was bounded by a boundary wall of bricks with a gate thereon. The plaintiff continued in peaceful possession of the said room and land fenced with boundary wall of bricks. The plaintiff has also got electric connection in his name with installation No.171855. The plaintiff as such continues in authorized and legal possession of the suit land right from 27.08.1997. That the defendant No.1 as per his promise did not execute the sale deed regarding the said suit property in favour of the plaintiff till date which he was bound to do, as a consequence the plaintiff did not get legal transfer of the title of the land in his favour. The plaintiff approached defendant No.1 for executing the sale deed but he has again promised to execute a sale deed within some days after obtaining necessary Fard Intikhab Jamabandi from the revenue authorities. That few days back, defendant No.2 namely Mrs. Pratibha had come near the suit property and had claimed that the land viz. the suit property has been restored to her by some revenue authorities and had threatened that she is going to demolish the boundary wall etc. That the plaintiff on coming to know that the defendant No.2 had made a claim that the suit property has been restored under some revenue orders so that plaintiff immediately approached the defendant No.1 for clarification about the claim made by defendant No.2. The defendant No.1 on enquiry apprised the plaintiff that land under Khasra No.189 out of which 10 ½ marlas was given to the plaintiff was under the active tenancy of him and finally under mutation No.998 dated 24.03.1989 the defendant No.1 was declared to be the owner of the entire land measuring 24 kanals 16 marlas. The said mutation was challenged and under Section 7 of the Agrarian Reforms Act a total vacant land of 2 kanals and 4 marlas as per revenue record was shown to have been restored to defendant No.2. The land possessed by plaintiff measuring 10 ½ marlas which was not an open land has absolutely no concern with that order as the said plot of land comes C. Rev. No.60/2010 Page 4 of 8 within the ownership of defendant No.1 even after passing of alleged order. That on the suit land there exists a room right from 1997 with a boundary wall and same is under the peaceful and uninterrupted possession of the plaintiff nothing to do with any order of restoration as the land exclusively falls within the original ownership of defendant No.1 in accordance with mutation No.998 dated 24.03.1989. That defendant No.2 on 18.12.2007 had sent some two unknown persons who tried to enter the premises of the suit property with mala fide intention of demolishing the boundary wall as such cause of action accrued in favor of the plaintiff on 18.12.2007 against the defendants.
4. Defendant No.2/petitioner filed written statement stating therein that the father of defendant No.2 along with other co-sharers were big land holders. Some persons including one Parkash (defendant no.1) S/o Chajju were tenants under the ancestors of defendant No.2 and other co sharers and manipulated the revenue entries and go mutations attested under Sections 4 & 8 of Agrarians Reforms Act in their favour in absence of the necessary party i.e. the owners. That the said Parkash (defendant No.1) S/o Chajju also got one mutation No.998 dated 24.03.1989 attested u/s 8 of Agrarian Reforms Act in his favour in ex parte with respect to land falling under Khasra No.189 situated at village Chak Changerwan, Jammu. The ancestors of the defendant No.2 got the knowledge of the impugned mutation attested under Section 8 of Agrarian Reforms Act in favour of Parkash, challenged the same before the learned Joint Agrarian Reforms Commissioner, Jammu by way of appeal dated 23.08.1990. The learned Joint Agrarian Reforms Commissioner, Jammu, after hearing the parties, allowed the appeal vide order dated 11.02.1993 and remanded the case to the Tehsildar, Jammu for passing fresh orders. That the matter kept pending for long time and after that defendant No.2 along with her brother made an application before the Tehsildar, Jammu for compliance of order dated 11.02.1993 and in pursuance of the application of defendant No.2, matter C. Rev. No.60/2010 Page 5 of 8 was taken up for further proceedings on spot and order of resumption of land measuring 4 kanals and 19 marlas was passed on 30.07.2007 on mutation No.998 in favour of defendant No.2 and other co sharers. That in pursuance of order dated 30.07.2007 passed in Mutation No.998, the Tehsildar, Jammu delivered the possession of land measuring 2 kanals and 4 marlas to defendant No.2 on spot in presence of the local witnesses under proper receipt No.16.08.2007 and Khaka Naksha was also prepared and Waqia was reflected in the Khasra Girdawari also. That the plaintiff by misrepresentation and concealment of facts filed the suit. The land measuring 10 ½ marlas subject matter of suit is also a portion of the land the possession of which has been delivered to defendant No.2 on 16.08.2007. Defendant No.2 after getting the possession of land on spot, got the land fenced by a brick wall and a small store room with tin shed was also erected.
5. Before dealing with the matter, it is apt to reproduce operative part of impugned order dated 31.03.2010, which reads:-
"However, after going through the matter in dispute, it reveals that plaintiff claims to be in possession of the suit land and defendant has denied the possession of plaintiff over the suit land. The defendant has also denied the receipt of any consideration amount from the plaintiff which is a matter of proof to be ascertained during the trial of the case. Plaintiff has not claimed the possession of the suit land from the defendant however, has submitted that he has already constructed one room over the suit land and may be declared in authorized possession of the same and has sought injunction against the defendants for which it is only the civil Court which has the jurisdiction to declare the plaintiff in authorized possession or restrain the defendants from interfering into the piece of land and as per contention of defendant No.2, this suit land is the portion of the suit property which has been restored to her is also a matter of proof to be ascertained during the trial of the case. At this stage, there is nothing on record to ascertain whether the suit land is the portion of the land which has been restored to the defendant by virtue of order dated 16.08.2007, therefore, meaning thereby that this Court has jurisdiction to entertain the file, as such this issue is decided against the defendants.
Issue No.2 whether the suit is not maintainable? OPD In view of findings recorded in issue No.1, this issue is also decided against the defendants."C. Rev. No.60/2010 Page 6 of 8
6. Issues are framed under Order 14 Rule 1 C.P.C. When a material proposition of law and facts is affirmed by one party and denied by other party issues arise; the purpose of framing of issues is to cut short real controversy which erupts between the parties as pleadings of parties are generally lengthy . Material propositions are those propositions of law and facts ,which plaintiff must alleges in order to show his right to sue or defendant must alleges in order to constitute his defense. After trial, court has to pronounce judgment on all issues framed thereon. At the first hearing of suit, after the pleadings are completed and after examining the parties under order 10 C.P.C and documents produced by parties, Court is required to frame the issues. Order 14 C.P.C is exhaustive in these regard.
7. In terms of Order 14 Rule (2) sub clause 2 where the issues are framed and court comes to opinion that suit may be disposed of on issue of law, court shall decide it, provided, and if these issues pertains to Jurisdiction of court or bar created by any other law. Bar of jurisdiction or bar created by any other law would mean that cognizance of suit in civil court has been barred by way of specific law or statue and when there is a full dressed procedure has been provided in any other statue for adjudication of controversy between parties by way of any other forum than civil court. Sometimes depending upon circumstances of case, it may happen that these preliminary issues involve mixed questions of facts and laws, than court is required to decide the same along with factual issues at final stage.
8. Now coming to present case, the suit of respondent is pertaining to protection of his possession from land in dispute; he has based his suit on the basis of an agreement to sell allegedly executed by him and defendant no.1. As per law, the injunction suit to restrain the defendants from interfering in to possession of land on the basis of agreement to sell is triable by civil court, because dispute is not between tenant and owner of land as defined under agrarian reforms Act.
C. Rev. No.60/2010 Page 7 of 89. In this way order of trial court is correct, and does not require any interference. This revision is dismissed as having no merit. Trial court file be sent back.
(Sanjay Kumar Gupta) Judge Jammu 17.11.2017 Narinder C. Rev. No.60/2010 Page 8 of 8