Jammu & Kashmir High Court
Sohan Lal vs Mali Ram & Others on 9 December, 2010
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. C Rev No. 158 OF 2009 Sohan Lal Petitioners Mali Ram & ors. Respondent !Mrs. Sindhu Sharma, Advocate ^None Honble Mr. Justice Mansoor Ahmad Mir, Judge. Date: 9.12.2010 :J U D G M E N T :
This Civil Revision is directed against the order dated 3.8.2009 passed by Sub Judge (C.J.M.), Udhampur in a suit titled Sohal Lal vs Mali Ram & others, File No.72/Civil, whereby the suit came to be transferred to Assistant Commissioner, Collector Agrarian Reforms, Udhampur for disposal under law (hereinafter for short, impugned order).
The petitioner/plaintiff filed a suit for permanent injunction restraining the respondents/defendants from causing any sort of interference/obstruction in his peaceful possession or from forcibly evicting him in respect of the land measuring 4 kanals 15 marlas comprising under Survey No. 1025 (new) and 163 (old) and land measuring 8 marlas falling under Survey No.1026 (new) and 163 (old) situated at Village Jakhani, Tehsil Udhampur. The petitioner/plaintiff has based his claim that he is owner in possession of subject matter of the suit property. Respondents/Defendants have filed the written statement on various grounds. They have admitted the ownership and possession of plaintiff over the suit land but have stated that plaintiff has encroached upon the existing lane on the northern side of the suit land by 6 ft. in breadth and under the garb of present suit is trying to cover his illegal possession over the lane. They have averred that civil court lacks jurisdiction to try the suit for the reason that the land is agricultural land and, therefore, is to be tried by the Collector Agrarian Reforms. Following issues came to be framed:
1. Whether this court lacks jurisdiction to try and hear the suit? OPD
2. Whether this suit is bad for non-joinder of necessary parties and deserves dismissal? OPD
3. Whether plaintiff is in possession of land comprising under Khasra no.1025 (4 kanals 5 marlas) and 1026 (8 marlas) situate at village Jakhani Tehsil Udhampur and has constructed his residential house in land comprising under Khasra no.1026? OPP
4. Whether defendants without any right or title or interest over the suit land are illegally and forcibly taking possession of the same by increasing width of the lane towards northern side of the suit land? OPP
5. Whether the plaintiff has encroached upon the said land by 6 feet in breadth alongside the suit land. If so, what is its effect? OPD
6. Whether 14 feet wide land was existing and plaintiff has encroached upon six feet of the land thereby leaving the lane 8 feet wide only? OPD
7. Relief. Issues 1 & 2 came to be treated as preliminary issues. The trial court held that the suit is to be tried by authority under the Agrarian Reforms Act (for short, Act) and accordingly decided issue no.1 in favour of defendants and against the plaintiff and directed the parties to cause appearance before the Collector.
It appears that the trial court is not well versed with the provisions of the Act. Only those cases were to be transferred to Collector which were pending when the Act came into force and where the disputes fall within the ambit of the Act. In the instant case admittedly the suit came to be filed on 16.2.2009. If at all trial court was of the opinion that the civil court lacks jurisdiction to try and hear the suit, then the plaint was to be returned to the plaintiff in terms of Order 7 Rule 10 of the Code of Civil Procedure (for short, Code). The dispute involved in the suit is not falling within the ambit of the Act. It is apt to reproduce Section 19 of the Act herein.
19. Powers of Revenue Officers (1) Unless the class of revenue Officers, by whom any function is to be discharged or any power is to be exercised, is specified by or under this Act, the Government may, by notification, determine the functions to be discharged or the powers to be exercised under this Act by any class of Revenue Officers.
(2) The manner and procedure for the performance of duties, the exercise and conferment of powers, distribution of business and withdrawal and transfer of cases under this Act shall, save as otherwise provided by or under this Act, be regulated by the Jammu and Kashmir Land Revenue Act, Samvat 1996 and the rules made thereunder.
(3) The following applications, suits and proceedings shall be disposed of by a Collector:
(a) proceedings under section 56 of the Jammu and Kashmir Tenancy Act, Samvat 1980;
(b) proceedings under sub-section (2) of section 68-A of the Jammu and Kashmir Tenancy Act, Samvat 1980;
(c) proceedings under section 24 of the Jammu and Kashmir Big Landed Estates Abolition Act, Samvat 2007;
(d) application by an owner or an intermediary that the person, who claims to be cultivating the land as a tenant, is not a tenant but a trespasser;
(e) all other cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediary.
(4) Any application, suit or proceeding of the kind mentioned in sub-
section (3), pending at the commencement of this Act before a Revenue Officer subordinate to a Collector or any Civil or Revenue Court, shall be transferred to the Collector having jurisdiction in the place in which the land in dispute is situate.
(5) Any application, suit or proceeding relating to cases specified in clause (e) of sub-section (3) which, immediately before the commencement of the Jammu and Kashmir Agrarian Reforms (Amendment) Act, 1988 were pending before any Civil Court, shall, on such commencement, stand transferred to the Collector having jurisdiction over the area in which the land in dispute is situate, and the Collector shall in his capacity as the appellate or revisional authority, as the case may be, dispose of the same in accordance with the provisions of this Act. If dispute(s) in terms of the Act is required to be determined, then it can be held that the dispute is to be determined by the authority under the Act.
In the given case no such dispute is raised in the plaint or written statement which needs determination as per the mandate of the Act.
It is beaten law of the land that the averments contained in the plaint determine the jurisdiction. The plaintiff has averred that he is owner in possession of the suit land and defendants are causing interference and trying to dispossess him. The defendants have admitted the ownership and possession of plaintiff over the suit land but have stated that he has encroached upon the lane which is being constructed by the Public Works Department. How can it be said that the dispute is falling within the four corners of the Act and is to be determined by the Collector? It appears that learned trial court has passed the order arbitrarily, without application of mind and going through the provisions of the Act. My view is fortified by the Full Bench judgment of this Court in Jagtu v. Badri & others, 1979 SLJ (1) 6. It is apt to reproduce para 24 herein:
24. As already stated all disputes relating to the possession of the land whether principally or collaterally, or incidentally involved are required to be decided under the Act. Two cases of the same nature can, however, be distinguished. Take the case where A sues for permanent injunction in respect of the land against B with the allegation that B without any right or reason is interfering with his possession. B raises the plea that he was the tenant of the land and was being wrongfully dispossessed by A and that he acts to reoccupy the land, or he disputes the right of ownership of the plaintiff in the land. Then in that case, the suit is cognizable by the Revenue Officer. But take the case where A in peaceful and personal cultivation of the suit land as an owner thereof is threatened by a wayfarer who has got no right in the land to dispossess him. Here the dispute does not call for any decision under the Act. The suit is cognizable by the civil court. Viewed thus, this civil revision is allowed and the impugned order is set aside. Petitioner to cause his appearance before the trial court on 22nd December 2010. Before proceeding ahead the trial court to issue notice to the defendants/respondents.
Registry to send a copy of the judgment to the trial court.
Jammu (Mansoor Ahmad Mir) Dated:9.12.2010 Judge (Anil)