Jammu & Kashmir High Court
Mumma Malla vs Mohamad Padroo on 4 August, 1983
Equivalent citations: AIR1984J&K28, AIR 1984 JAMMU AND KASHMIR 28
ORDER Mufti Baha-Ud-Din Farooqi, C.J.
1. The dispute in this case relates to land measuring one Kanal under survey No. 461 in village Heff Tehsil Shopian. The plaintiff has claimed himself to be the exclusive owner of this land and prayed for a decree of permanent injunction commanding the defendants to remove the house which they have constructed over it without the plaintiff's permission. In defence, it has been pleaded that defendant No. 1 is in possession of the disputed land adversely to the plaintiff for the last more than 25 years, in consequence whereof he has acquired ownership rights over the land. Before the trial Court, the defendant raised a preliminary objection to the effect that the Civil Court had no jurisdiction to try this suit. The objection was founded on the provisions of Jammu and Kashmir Agrarian Reforms Act, (hereinafter called the "Act"), and the contention was that the suit was triable by the Collector (Agrarian). The trial Court has repelled this contention and held that the suit is triable by the Civil Court. Hence this revision,
2. Section 19 (3) of the Act provides as under :
"19(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) any other dispute relating to or arising, out of the provisions of this Act"
Clause (e) has to be read ejusdem generis with the preceding clauses and, so read, it contemplates suits and proceedings between a recorded owner or intermediary on one hand, and the party in possession, on the other, in which the party in possession has pleaded tenancy as a ground of claim or defence. In the present case, the dispute relates to land which is recorded in the name of the plaintiff. Defendant No. 1 is the party in possession. He claims to be in possession adversely to the plaintiff. Applying the above test, the suit is not liable to be transferred for disposal by the Collector Agrarian (concerned). However, it does not necessarily follow that the Court , can proceed with the trial without anything else. The suit would collapse or continue depending upon whether the right claimed in the suit had collapsed or survived the Act. That question would, in its turn, depend upon the question whether, in consequence of coming into force" of the Act, the land in dispute has to be settled in the name of one party or the other or in the name of none of them. The power and jurisdiction to determine this question vests in the Collector (Agrarian) under the Act. Therefore, the lower Court ought to have referred to the Collector Agrarian, the following question, namely :
"Whether in consequence of coming into force of the Act, the land in dispute has to be settled in the name of one party or the other or in the name of none of them?"
and pending receipt of a finding on this question, the Court ought to have stayed its hands in the matter.
3. The argument of the learned counsel for the respondent, however, is that the disputed land is not "land" as defined in the Act, and, as such the question of making any reference to the Collector (Agrarian) did not arise. Dwelling on this point, he urged that the disputed land is a building site which is expressly excluded from the definition of the "land" as given in the Act. I am not inclined to agree with this argument. The reason is that the question whether the disputed land is "land" as defined in the Act, falls within the exclusive jurisdiction of the Collector (Agrarian), and it is for him to decide as to what is the character of the land, and whether it falls within the purview of the definition of the "land" given in the Act. I say so because the matter concerning settlement which falls within the exclusive jurisdiction of the Collector (Agrarian) carries with it the power to determine the jurisdictional question whether the land in dispute is "land" as defined in the Act, being a question upon the determination of which depends his power to make the settlement under the Act.
4. In the result, I allow this revision and set aside the impugned order. The lower Court is directed to refer the question mentioned above for determination to the Collector (Agrarian) concerned, and ask him to submit his finding within a period of two months and mean while stay its hands in the matter. There shall be no order as to costs. The parties are directed to appear before the trial Court on 18th day of August, 1983.