Siraj Ud Din Chowhan And Ors vs Mohammad Ismail Bajaad And Ors on 21 December, 2022

[Cites 6, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Siraj Ud Din Chowhan And Ors vs Mohammad Ismail Bajaad And Ors on 21 December, 2022

2. The petitioners (hereinafter referred to as „the defendants‟) have challenged order dated 17.10.2022 passed by learned Sub Judge Bandipora, whereby their application under Order 7 Rule 11 of CPC has been dismissed.

3. It appears that the respondents (hereinafter referred to as „the plaintiffs‟) have filed a suit before the learned trial Court seeking a permanent injunction restraining the defendants from causing any sort of interference in the land Behak Jaroogi falling under S.No.42/5 situated at Trisangam with a further injunction that the defendants be restrained from grazing their sheep in the said land.

4. The case of the plaintiffs before the trial Court is that their sheep are grazing in the land which is subject matter of the suit and this has been going on for more than last 40 years. It is submitted in the plaint that the defendants have started preventing the plaintiffs from taking 2 CM(M) No.291/2022 their sheep to the suit land for grazing purposes. On these grounds, the plaintiffs have sought a permanent prohibitory injunction against the defendants restraining them from preventing the plaintiffs from taking their sheep to the suit land for grazing purposes.

5. Upon service of defendants, they filed an application under Order 7 Rule 11 of the CPC seeking rejection of the plaint on the ground that the plaintiffs have sought the relief with regard to the land which is used for pasturing and, as such, Civil Court has no jurisdiction to entertain the suit in view of the provisions contained in Section 139 of the J&K Land Revenue Act. The learned trial Court after hearing the parties dismissed the application of the defendants by holding that the dispute raised in the suit is not cognizable by the Revenue Court and, as such, the jurisdiction of the Civil Court is not barred.

6. The defendants have challenged the impugned order passed by the learned trial Court on the ground that the learned trial Court, while passing the impugned order, has not interpreted the law in its correct perspective. It has been further contended that the subject matter of the suit is covered under the provisions contained in Section 139 of J&K Land Revenue Act and, as such, the trial Court could not have taken cognizance of the matter.

7. I have heard learned counsel for the parties and perused the material on record.

8. Section 139 of J&K Land Revenue Act excludes jurisdiction of Civil Courts in matters which fall within the jurisdiction of Revenue Officers. In order to test the merits of the contentions raised by the 3 CM(M) No.291/2022 defendants it would be apt to reproduce the provisions contained in Section 139 of J&K Land Revenue Act, which reads as under:-

"139.Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue officers. Except as otherwise provided by this Act-

(1) No Civil Court shall have jurisdiction in any matter which a Revenue Officer is empowered by this Act to dispose of or take cognizance of;

(2) a Civil Court shall not exercise jurisdiction over any of the following matters, namely: -

(i) any question as to the limits of any land which has been defined by a Revenue officer as land to which this Act does or does not apply;

(ii) any claim to compel the performance of any duties imposed by this Act or any other enactment for the time being in force on any Revenue officer, as such;

(iii) any claim to the office of [x x x x] village officer or in respect of any injury caused by exclusion from such office or to compel the performance of the duties or a division of the emoluments thereof;

(iv) any notification directing the making or revision of a record-of-rights;

(v) the framing of a record-of rights or annual record; or the preparation, signing or attestation of any of the documents included in such a record;

(vi) the correction of any entry in a record-of rights, annual record or register of mutations;

(vii) any notification of the undertaking of the general re-

assessment of a district or Tehsil having been sanctioned by the Government;

(viii) the claim of any person to be liable for an assessment of land revenue or of any other revenue assessed under this Act;

(ix) the amount of land revenue to be assessed on any estate or to be paid in respect of any holding under this Act;

(x) the amount of, or the liability of any person to pay, any other revenue to be assessed under this Act, or any cess, charge or rate to be assessed on an estate or holding under this Act or any other enactment for the time being in force;

(xi) any claim relating to the allowance to be received by a land-holder who has given notice of his refusal to be liable for an assessment, or any claim connected with, or arising out of any proceedings taken in consequence of the refusal of any person to be liable for an assessment under this Act;

(xii) the formation of an estate out of waste-land;

(xiii) any claim to hold free of revenue any land, mills, fisheries or natural products of land or water;

(xiv) any claim connected with, or arising out of, the collection by the Government, or the enforcement by the Government of any process for the recovery of land revenue, or any sum recoverable as an arrear of land revenue;

(xv) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue;

(xvi) the amount of, or the liability of any person to pay any fees, fines, costs or other charges imposed under this Act;

4 CM(M) No.291/2022

(xvii) any claim for partition of an estate, holding or tenancy, or any question connected with, or arising out of, proceedings for partition, unless such question is to be determined by a Civil Court as a question of title arising out of the said proceedings;

(xviii) any question as to the allotment of land on the partition of an estate, holding or tenancy, or as to the distribution of land revenue on the partition of an estate or holding, or as to the distribution of rent on the partition of a tenancy;

(xix) any claim to set aside or disturb a division or appraisement of produce confirmed or varied by a Revenue Officer under this Act;

(xx) any question relating to the preparation of a list of village cesses or the imposition by the Government of conditions on the collection of such cesses;

(xxi) any proceedings under this Act for the commutation of the dues of a superior land-holder;

(xxii) any claim arising out of the enforcement of an agreement to render public service in lieu of payment of land revenue;

(xxiii) any claim arising out of the liability of an assignee of land revenue to pay a share of the cost of collecting or re-assessing such revenue, or arising out of the liability of an assignee to pay out of assigned land revenue, or of a person who would be liable for land revenue if it had not been released, compounded for or redeemed to pay on the land revenue for which he would but for such release, composition or redemption be liable, such a percentage for the remuneration of a Zaildar, Inamdar or village officer as may be prescribed by rules for the time being in force under this Act; and (xxiv) the claim of any person for declaring ownership or any right in respect of grazing land and other prohibited Shamilat lands."

9. Learned counsel for the defendants has laid emphasis on clause (xxiv), quoted hereinabove and contended that the subject matter of the suit relates to claim with regard to right in respect of the grazing land and as such jurisdiction of the Civil Court is barred. A perusal of the aforesaid provision reveals that the claim relating to declaration of ownership or declaration of any other right in respect of the grazing land is cognizable by the Revenue Officer and as per Section 139(1) of the Land Revenue Act no Civil Court shall have jurisdiction in any manner which the Revenue Officer is empowered under the Land Revenue Act to dispose of or take cognizance of.

5 CM(M) No.291/2022

10. The provisions contained in Section 139 of the Land Revenue Act came up for discussion before this Court in the case of Mushtaq Ahmad Rafiquee vs. Gh.Mohd, Dar & Ors, 2010(2) JKJ 642. The relevant observations of this Court rendered in the said judgment are reproduced as under:-

"11. However, having regard to the nature of controversy involved, the focus is to remain on section 139(2) of XXIV of the Act. The aforesaid provisions debars jurisdiction of Civil Court in respect of claims for declaring ownership or any right in respect of "grazing land" or other "prohibited shamilat lands". It follows that whenever any person lays a claim to "grazing land or prohibited shamilat land" or insist on any right, such claim is not to be dealt with by the Civil Court. Section 139 sub section 1 and sub section 2 are to be read conjointly. Whereas section 139(1) lays down a general rule that no Civil Court shall have jurisdiction in any matter which a Revenue Officer is empowered under the Land Revenue Act, to dispose of or take cognizance of, section 139(2) is illustrative in nature and illustrates the cases conceived by section 139(1) for exclusive jurisdiction of a Revenue Officer. When read together the aforesaid provisions lead to the conclusion that the matter brought out of the jurisdiction of the Civil Court must be of a such a nature which a Revenue Officer is empowered to deal with, dispose of or take cognizance of. If a matter by its very nature can not be dealt with by a Revenue Officer or dispose of or taken cognizance by the Revenue Officer, the matter can not be said to fall outside jurisdiction of the Civil Court merely because some ancillary matter can be dealt with by Revenue Officer. The scope of section 139 Land Revenue Act and its fall out for the jurisdiction of the Civil Court under section 9 CPC to deal with a civil dispute, has fallen for consideration of this Court in quite a few cases."

11.From the foregoing enunciation of law, it is clear that in order to bring the matter out of the jurisdiction of the Civil Court, it has to be of such a nature which the Revenue Officer is empowered to deal with, dispose of or take cognizance of. If the matter involved in a suit is not cognizable by a Revenue Officer, then Civil Court certainly has jurisdiction to entertain such a suit.

12.Now coming to the facts of the instant case as have been pleaded in the plaint, the plaintiffs claim that they have been grazing their sheep in the suit land for last 40 years and now the defendants are preventing them from doing so. The plaintiffs do not seek a declaration of 6 CM(M) No.291/2022 ownership of land in question nor do they seek the right in the said land, which is admittedly the grazing land. They only seek an injunction to protect the rights, which according to the plaintiffs, are already vested in them. Such a relief cannot be granted by a Revenue Officer as the same is not envisaged by any of the clauses of Section 139(1) of the Land Revenue Act. Therefore, the instant suit cannot be held to be barred by the provisions contained in Section 139(1) of the Land Revenue Act.

13.For the foregoing reasons, I do not find any illegality muchless any gross illegality in the impugned order passed by the learned trial Court. The same does not call for any interference in these proceedings. The petition is, accordingly, dismissed.

(SANJAY DHAR) JUDGE SRINAGAR 21.12.2022 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

Unlock Advanced Research with PRISMAI

Jammu & Kashmir High Court - Srinagar Bench