Jammu & Kashmir High Court
Hamidul Ahmad Pandit And Anr. vs Munsiff, Pulwama And Ors. on 31 July, 1996
Equivalent citations: AIR1997J&K52, AIR 1997 JAMMU AND KASHMIR 52
JUDGMENT Ab. Qadir Parray, J.
1. This is an appeal (Letters Patent Appeal) against the judgement of a Single Bench of this Court passed in Writ Petition No. 591 of 1984 titled as above on 28--9-I984, whereby the learned Single Bench has dismissed the writ petition in limine.
2. In the writ petition before the learned Single Bench, the petitioner was asking for a writ of prohibition against respondent No. 1, (Munsiff Pulwama) for proceeding with the Civil Suit No. 1/1973 titled Mst. Sara versus Iqbal Koka and others. The said suit was instituted in the Lower Court of the Munsiff on 5-4-1973 and is a suit for possession on the basis of enforcement of right of prior pur-chase regarding land measuring 4 kanals falling under Survey No. 269/11/Min from Khewat No. 5 of village Noorman, Pulwama.
3. It is alleged in the said suit that the defendant No. 2 (Rajab) sold the land by virtue of a sale deed executed on April the 4th, 1972 and registered on 6th April, 1972 to defendant No. 7 for a consideration of Rs. 2000/-, whereas inflated amount of Rs. 4000/- has been shown in the sale deed.
4. The plaintiff claimns as the right of prior purchase on me counts that as she is the cosharer in the suit land by virtue of a sale deed much earlier to the present one, whereby she has purchased 6 kanals of land from the said survey No. 269/11/Min under Khewat No. 5 situate at village Moorman, Pulwama.
5. The defendants had appeared and pleaded that the plaintiff had no right of prior, purchase as the suit land is in possession of Hamid and Khurshid Ahmad sons of Ghulam Mohammad, Pandit of Kakapora and they have converted the suit land into an orchard. The plaintiff had no right of prior purchase and has never become a co-sharer in the Khewat No. 5 and so on.
6. The suit of the plaintiff seems to have been decreed by the trial Court vide judgment and decree passed on 28-2-1989. The said judgement and decree seems to have been appealed against in the Court of District Judge which is pending disposal before the said Court.
7. It may be observed that in the meantime the person of the appellants before us had filed a Writ Petition No. 591 of 1984, which came to be dismissed by learned single Judge and prior to filing of the said writ petition, the other developments which had taken place in the case are that the person of the defendant/respondents before us had filed a revision petition against the order of the trial Court (Munsiff Pulwama) dated 28-4-1975, wherein the learned Munsiff has held that the suit for possession on Right of Prior purchase under Section 14 (b) is not to be dismissed in view of the provisions of J. & K. Agrarian Reforms Act of 1972. However, he had stayed the proceedings in the suit and asked the parties, that the fact as to who was in actual possession of the suit land on the relevant date i.e. 1st. May 1973 when the suit land vested to the defendants or to the persons in possession and in that view of the matter, Court has ordered the stay of the proceedings in the suit till the questions involved are finally settled according to the scheme of the Act by the officers to be appointed under the Act. So pending decision of the prescribed authority under the Act, the suit file seems to have been ordered to be consigned to records with the direction that the same shall be revived at the request of either of the parties, if they so desire, at the proper time.
8. The order of the learned Munsiff Pulwama came under challenge by way of a Civil Revision Petition No. 59 of 1975 titled Mst. Sara versus Iqbal Koka and others before the Single Bench of this Court and this Court vide order dated 22nd of September, 1978 passed by the then Chief Justice, Mian Jalal-ud-Din (as his Lordship: then was) observed that:
"........ On perusal of the written statement filed by the defendants, it appears that theproperty in dispute is an orchard. Mr. Chakoo for the appellant relies upon this statement in the written statement. He, therefore, submits that the case does not fall within the purview of the Agrarian Reforms Act. Shri J. L. Chowdhary for the respondent states that although the land had been described as an orchard, it was hot so in the year 1971....,." .
9. This factual controversy seems to have been remitted for determination to the trial Court for holding an enquiry and to return a finding as regards the character of the land in the year 1971. This finding was to be returned within two months, directing the parties to appear in the trial Court on 20-10-1978.
10. The trial Court of Munsiff, Pulwama as per directions passed by this Court, returned its finding and seems to have submitted the file, holding that the land in dispute was in the form of orchard in the year 1971. These findings were arrived at as per order dated 5-1-1979.
11. After the findings were received by this Court, the Civil Revision Petition No. 59 of 1975 was accordingly allowed, setting aside the order dated 28-4-1975 passed by the Court of Munsiff, Pulwama, which was put to challenge in the said revision petition. The operative portion of the order passed by his Lordship Hon'ble the Chief Justice, (Justice Mian Jalal-ud-Din), as his lordship then was, on May 17th, 1979 reads:
"The trial Court has submitted its report. According to the said report, it transpires that the property in dispute was orchard in the year 1971. In view of the report, it is held that the land in dispute was an orchard in the relevant year 1971. In that view of the matter, the order dated 28-4-1975 passed by the Munsiff Pulwama is being set aside and the case is being sent back to him for disposal according to law,"
12. In the mean time it seems that the Court of Munsiff Pulwama on 12-12-1983 decided issue regarding jurisdiction of the Court in view that the suit land is governed by 'Agrarian Reforms Act and this additional issue was decided along with the said application. It may be noted that this application was covering the issue as came to be moved by Hamccd Ahmad and Khurshid Ahmad, defendants on 27-10-1983. The application was to the effect that the suit of the plaintiff be returned to plantiff as the Court of Munsiff (Civil Court) has no jurisdiction to decide the case. Objections to this application were sought on 12-11-1983 and the matter was heard and decided by the Court per order dated 12-12-1983.
13. The arguments advanced by the defendants before the Court below as per records shown were that the proceedings under Agrarian Reforms Act were pending with respect to the said suit land before the Collector, Agrarian Reforms who had returned a finding that the suit land is covered by the definition of 'land' as given in the Agrarian Reforms Act of 1976 and as such the Civil Court has no jurisdiction to try and decide the case.
14. Secondly the counsel for the defendant has projected that despite the fact that trial Court of Munsiff had held on 5-1-1979 as per inquiry on the directions of this Court dated 22-9-1978 that the land in question was an orchard in 1971, but the said finding was returned as per arguments of the learned counsel for the defendants before the trial Court, without hearing the present defendants and is not binding on them as they were not parties to the suit at that time and as such had no opportunity to put their case and so on. These were the submission for return of the suit made by the newly added defendants.
15. The trial Court after hearing the arguments had held that as because at one stage the trial Court had ordered stay of the suit vide order dated 28-4-1975, but the same came to be set aside by the Revisional Court as per order reiterated hereinabove paras of this judgment by us and in view of the fact that a finding has been returned by the trial Court and upheld by the Highest Forum of the State on 17-5-1979, the findings as such cannot be reopened and re-agitated by the trial Court obviously -- the findings are based on the written statement of the defendants; the findings concluded by the trial Court in the enquiry and up-held by the Revisional/Appellate Court of the Chief Justice of the State High Court.
16. It may be observed that from the perusal of an order, the Joint Agrarian Reforms Commissioner, Kashmir while deciding File No.: 1036 instituted on 21-1-1983 decided on 21-8-1989, pertaining to an appeal against an order passed on mutation No.: 370 of village Naman on 30-3-1981 against the order of Collector dated 17-1-1984, had transgressed his powers in utter disregard of the findings returned by the Civil Court and up-held by the Hon'ble High Court in the Revision Petition No.: 59 of 1975 on 17-5-1979 is not only unwarranted but speaks of his callous and disrespectful attitude towards the Hon'ble Court. The findings arrived at and upheld by the Highest Court of the State are not only to be adhered to but are also binding on the parties and different functionaries under different statutes of the State. So the observations made by the then Joint Agrarian Reforms Commissioner, Kashmir in his order dated 21-8-1989, though the order has been set aside by the J. & K. Special Tribunal in file No.: 2569 instituted on 11-12-1989 and decided on 9-3-1994, the observations of which, we take serious note made by the Joint Agrarian Reforms Commissioner in his order dated 21-8-1989 which read :
"Now the question is what would be the out come of the findings of Hon'ble High Court that the land in question was an orchard on the relevant date .......... Accordingly it is the Collector and not the Civil Court, whatever be the status of such a Court who was to decide whether the land under appeal was/ was not an orchard in Kharief 1971."
17. Now coming again to the matter at issue in the case, we find that the learned Munsiff while deciding the additional issue No. 4, as referred to hereinabove, and the application of the defendants as moved on 27-10-1983, had returned the finding that the application of the defendants is dismissed and the suit is not to be returned to the plaintiff. Moreover, the trial Court returned the findings on additional issue No. 4 by relying on an authority of this Court reported as SLJ 1981 406 titled Haji Gh. Mohammad Bhat v. G. H. Nenvi, holding that a suit where possession of land is sought on the basis of right of prior purchase, the suit is not triable by Collector even if disputed land is agricultural land as defined in the Agrarian Reforms Act, 1976, and it necessarily follows that the suit does not fall outside the jurisdiction of the Civil Court. The findings were returned on 12-12-1983.
18. This order of the trial Court also seems to have been appealed and agitated by way of a Revision Petition No. 3 of 1984 titled Khurshid Ahmad v. Iqbal Koka. This revision petition also seems to have been dismissed in limine at admission stage after hearing the learned counsel for the parties on 13-6-1984. Thus the prayer made by the additional defendants who were joined as parties to the proceedings praying for return of the plaint under Order 7, Rule 10 of Civil P.C. and that the Court of Munsiff, a Civil Court had no jurisdiction to try the suit was rejected by the highest court, the court of revisional jurisdiction also,
19. After all this exercise was done by the defendants to dislodge the plaintiff from the present suit for pre-emption by taking recourse to the protracted litigation and on one or the other pretext trying to freeze the hands of the Civil Court, the defendants-appellants in this letters patent appeal before us filed a Writ Petition No. 591 of 1984 titled Hameedullah Pandit v. Munsiff, Pulwama, just to upset the findings of this Court in above referred two revision petitions viz., Civil Revision Petition No. 59 of 1975 decided by the then Chief Justice and Civil Revision No. 3 of 1984 decided by another Hon'ble single Judge of the Court on 13-6-1984, thereby deciding that the trial Court had jurisdiction to decide its own jurisdiction. Trial Courts findings in this regard as noted and reiterated by the learned single Judge in the impugned order in this LPA, in this regard have been upheld in two revision petitions by the revisional court as mentioned herein-above. Now it does not lie in the mouth of the petitioner/ appellants before us by saying that the land is covered by Agrarian Reforms Act and the pending suit in the Civil Court cannot try it.
20. Learned single Judge has rightly observed that the question has been finally determined in two revision petitions. The land has been decided and declared by the two different benches of this Court that the suit land was orchard and was excluded from the provisions of Agrarian Reforms Act. The learned single Judge has rightly also observed that the said question regarding the nature and character of the suit land cannot be considered again by way of a writ petition in hand. The matter involved in the writ petition, the decision on which has resulted in the filing of this LPA before us, has already been decided by the High Court in civil proceedings which cannot be re-agitated or re-opened through the medium of the writ petition.
21. The learned single Judge is right as we also appreciate and join our conclusions on this count that in the writ petition there is no challenge made by the petitioners about the two decisions given by this court as regards the nature and character of the suit property. The findings as such are final and binding on the petitioners and all the functionaries and the authorities named in the Agrarian Reforms Act. The authorities and functionaries who have jurisdiction under the Agrarian Reforms Act are bound by the decision of this Court in respect of the nature and character of the land. They cannot claim jurisdiction to try the matter. That matter as concluded by the writ court is and has finally been adjudicated upon and the findings returned by the Court of Munsiff, the trial Court have been confirmed and found correct by the writ court also and the writ court has dismissed the writ petition as misconceived and not maintainable. However, while dismissing the writ petition, on verbal submissions of the learned counsel for the petitioners, the leave to file letters patent appeal against the order seems to have been granted by the learned single Judge on the count that as there is no authoritative pronouncements of this Court as to whether or not the order passed in revision petition by this Court could be assailed in a writ petition?
22. So while examining the matter in this perspective also, we see that though till date there is no authoritative judgments on this count by this Court, so we venture to examine, observe, analyse and lay down.
23. That the appellate powers and re-visional powers which vest with this Court as per procedure are summarised in the relevant provisions of the law.
24. The revisional jurisdiction of this Court on the civil side is summarised in Section 115 of the Civil P. C. which reads :
"115. Revision:--(1) The High Court may call for the record of any case which has been decided by any Court subordinate to the High Court and in which no appeal lies thereto, and if such subordinate Court appears -
a) to have exercised a jurisdiction not vested in it by law, or
b) to have failed to exercise a jurisdiction so vested, or
c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, or
d) to have caused failure of justice, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section vary or reverse any order or an order deciding an issue, in the course of a suit or other proceeding, except where -
a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto."
25. The aid of the High Court is involved in the revisional side because it is a superior court and can interfere the purpose of rectifying the error of the court below.
26. The revisional powers of this Court on the criminal side are laid down in the relevant provisions of the Criminal Procedure Code which are enumerated under Sections. 435 and 439 of Cr.P.C. which read :
"435. Power to call for records of inferior Courts: -- (1) The High Court or any Sessions Judge (or Chief Judicial Magistrate) may call for and examine the record of any proceeding before any inferior criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and and may, when calling for such record, direct that the execution of any such sentence, (or order) be suspended and, if the accused is in confinement, that he be released on bail or on his own bound pending the examination of the record ......."
"439. High Court's powers of revision.--(1) In the case of any proceeding, the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Special by Sections. 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and, when the Judge composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 429 ......."
27. Besides these powers the powers vested in this Court under Section 561-A, Cr.P.C. also provide:
"561-A. Saving of inherent power of High Court:-- Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
28. So this Court is having unfettered jurisdiction and powers to see that the orders passed b'y the subordinate Court do not suffer on account of jurisdiction or procedural error or is hit by irregularity, propriety or legality of procedure which warrants interference by this Court or exercise of extraordinary powers vested under Section 561-A, Cr.P.C. are to be exercised for quashing of proceedings or safeguarding the abuse of the process of the Court. The powers vested under Section 561-A, Cr.P.C. are unlimited. The inherent powers of the Court have not been cut or circumvented by insertion of this provision in the Code of Criminal Procedure. The High Court has been left unfettered with the powers to make such order as may be necessary to give effect to any order under the Code, or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.
29. Similarly the appellate powers vested in this Court are statutory. The right of a appeal is a right given by the statute to a litigant aggrieved of the order/judgment of a subordinate Court to agitate the matter before a superior Court and thereby invoking its help and aid and interposition to redress the error of the Court below.
30. It may not be out of place to mention here that limits of the jurisdiction of the High Court as a superior Court of appeal are wider and larger. But once the jurisdiction of the High Court has been invoked on revisional or appellate side, a writ petition challenging or otherwise setting at naught the conclusion arrived at on the revisional/appellate side of the Court is not to be entertained or maintained. We are saying so authoritatively and are being supported in our conclusions by a reported judgment of the Apex Court of the country reported as AIR 1970 SC 1, wherein -it has been held (para 8) :
' "Even on the assumption that the order of the Appellate Court had not merged in the order of the single Judge who had disposed of the revision petition. We are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted, it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of the process as also to respect and accord finality to its own decision."
31. So in the light of the above findings and the ratio laid down by the Apex Court and the circumstances and facts of the case under consideration before us, we uphold the impugned order passed by the Court of learned single Judge of this Court in Writ Petition No. 591 of 1984, impugned in this LPA before us. The findings arrived at by the two learned single Judges in the Revision Petitions Nos. 59 of 1975 and 3 of 1984 on 17-5-1979 and 13-6-1984 cannot be annulled by way of a writ petition. Rather it will on the one hand amount to abuse of the process of this Court and on the other hand, this Court, we say so, has to give finality to its own findings arrived at on the civil side. The letters patent appeal, as such, is dismissed. Records be remitted back to the Court below forthwith. Learned District Judge, 1st Appellate Court, ceased of the matter in appeal against the judgment and decree passed by the trial Court, decreeing the suit of the plaintiff for possession on the ground of right 'of prior purchase, is directed to hear the appeal and dispose off the matter in accordance with law expeditiously, as the matter pertains to the year 1973 and is by now more than twenty three years old.
M. Ramakrishna, C.J.
32.1 have gone through the draft judgment prepared by my learned brother Justice, Parray and reasons assigned therein.
33. Two questions of law arise for consideration in this case:
(1) Whether a land considered to be an orchard does come within the purview of Agrarian Reforms Act, 1976, hereinafter called as the 'Act of 19767 (2) Whether the finding recorded and the conclusions arrived at by the teamed single Judge of this Court in revision petition under Section 115 Code of Civil Procedure reaching the conclusion that the land in question is an orchard, is binding on both the parties and if this is so, whether it can be reopened in the writ petition?
34. These are the two questions required to be answered in this case.
35. Although my learned brother has given the salient facts of the case, referring to the findings recorded by the learned single Judge of this Court earlier in revision petition under Section 115, C.P.C. and has also referred to certain authorities of the Supreme Court coming to the conclusion that the findings recorded by the learned single Judge of this Court earlier cannot be reopened in a writ petition under Article 226 of the Constitution, it appears to me that since the parties urged that an authoritative pronouncement on these questions is required, I would like to add the following paragraphs to the judgment drafted by my learned brother.
36. At the outset it is seen that Sub-section (9) of Section 2 defines land under the Act of 1976. It lays down that, ""land" means land which was occupied, or was let, for agricultural purposes or for purposes subservient to agriculture or for pasture in kharif, 1971 and includes -
(a) to (e)........."
Sub-section (10) defines orchard, meaning thereby, ",a compact area of land having fruit trees grown thereon or devoted to cultivation of fruit trees such number that the main use to which the land is put is growing of fruits or fruit trees;"
37. It is in this context that the learned single Judge of this Court while disposing of Civil Revision Petition No. 59/1975 held as follows:
"On a perusal of the written statement filed by the defendants, it appears that the property in dispute is an orchard. Mr. Chakoo for the appellant relies upon this statement in the written statement. He, therefore, submits that the case does not fail within the purview of the Agrarian Reforms Act. Shri J. L. Chowdhary for the respondent states that although the land had been described as an orchard, it was not so in the year 1971 ......."
However, his Lordship Hon'ble the Chief Justice (Justice Mian Jalal-ud-Din) (as his Lordship then was) held that the land in question had been an orchard. Therefore, it comes within the exemption of Sub-section (10) of Section 2 of the 1976 Act. In that context the finding of this Court has become final.
38. There is one more submission made by the learned counsel for the appellants. His submission is that since some of the defendants in the suit came to be added who were not parties to the revision petition (Revision Petition No. 59/1975) as on the date when the revision petition was heard and disposed of, it is not binding on them. It is not possible to conceive of this submission of the learned counsel inasmuch as regard being had to Section 10 of the Civil Procedure Code, read with Section 11 thereof dealing with the res judicata, a single Bench of this Court has the occasion to deal with this question in Abdul Razak Makai v. Samad Kuchay, AIR 1964 J&K 65, holdihg that it is not necessary for the application of the section (Section 10) of the C.P.C. that all the parties on either side should be the same in both the suit. It is enough if ihere is a substantial identity of the parties.
39. Similar is the view taken by a Division Bench of the Calcutta High Court in Arun General Industries Ltd. v. Rishabh Manufacturers Private Ltd., AIR 1972 Calcutta 128 and Shorab Merwanji Modi v. Mansata Film Distributor, AIR 1957 Cal 727 Similar is the view taken by the Delhi High Court in C. L. Tandon, G. S. v. Prem Pal Singh Rawat, AIR 1978 Delhi 221.
40. A Division Bench of the Allahabad High Court in Wahiduanissa Bibi v. Zamin Ali Shah, AIR 1920 Allahabad 70 held as follows:
"Where A and B sue C, D and E and then C brings a suit against A, B and X, the fact that some parties are not parties in both the suits will not stand in the way of the application of the section."
41. Therefore, there is no difficulty in holding that merely because some of the defendants came to be added subsequently in the suit, that docs not change or affect the finding recorded by this Court in the above revision petition that the land in question is an orchard.
42. In view of the foregoing there is no difficulty for us to hold that both these questions of law have been answered against the appellant.
43. Thus, therefore, in view of the foregoing I agree with the conclusions arrived at by my learned brother Justice Patray.