Jammu & Kashmir High Court
Ved Parkash & Ors vs Suresh Kumar on 2 May, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
Serial No. 113
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
RSA No. 7/2025
CM No. 2543/2025
Ved Parkash & Ors.
.....Appellant(s)/Petitioner(s)
Through: Mr. R.K.S. Thakur, Advocate
Vs
Suresh Kumar
..... Respondent(s)
Through:
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
(02.05.2025)
01. The respondent-Suresh Kumar, being the sole plaintiff, instituted a civil suit for declaration against four defendants, who are appellants herein, thereby seeking a decree of declaration with recovery of joint possession and for permanent prohibitory injunction with respect to the suit property obtaining in the form of land falling within the definition of land under the J&K Land Revenue Act Svt., 1996.
02. The declaration sought by respondent/plaintiff is that he is a joint protected tenant with respect to the suit land and on that basis entitled to recovery of joint possession of the suit land and then consequent permanent 2 RSA No. 7/2025 prohibitory injunction against the appellants/defendants. The respondent/plaintiff set up that he has a half share in the lease hold rights qua the suit land as a protected tenant.
03. The trial court of learned Sub-Judge, Udhampur, upon the preliminary objection raised by the appellants in their written statements with respect to the maintainability of the civil suit in terms of the bar of civil court jurisdiction created under section 84 of the Tenancy Act Svt., 1980, came to dismiss the suit holding it not maintainable by virtue of an order and decree dated 16.02.2017 against which civil first appeal came to be taken by the respondent/plaintiff before the Court of Principal District Judge, Udhampur on file No. 17/Civil Appeal on 01.03.2013 which came to be disposed of by judgment and decree dated 20.01.2025 upsetting the dismissal of the respondent/plaintiff's suit holding it maintainable under section 9 of the Civil Procedure Code Svt., 1977 read with section 84 (1) (a-1) of the Tenancy Act Svt., 1980 and remanding the suit for trial on merits.
04. The appellants are aggrieved of this outcome of civil first appeal and are therefore, now in civil second appeal under section 100 of the J&K Code of Civil Procedure 3 RSA No. 7/2025 Svt., 1977 seeking the adjudication so made by the first appellate court.
05. Learned counsel for the appellants submits that learned appellate court has gone totally wrong in appreciation of the scope of section 84 (1) (a-1) of the Tenancy Act Svt., 1980, which by every stretch of meaning, construction and interpretation envisages a case for declaration and recovery of right of protected tenancy to be cognizable by the revenue officers as provided under J&K Land Revenue Act Svt., 1996 thereby expressly ousting the jurisdiction of civil court otherwise ordinarily available under section 9 of the J&K Code of Civil Procedure Svt., 1977.
06. Section 84 (1) (a-1) of the Tenancy Act Svt., 1980 reads as under :-
"Applications and proceedings cognizable by Revenue Officers"
(1) The following applications and proceedings shall be disposed of by Revenue Officers as such, and no Court shall take cognizance of the matters with respect to which any applications or proceedings might be instituted:-
(a) Applications by a landlord or a tenant for declaration of a right of occupancy under section 7-
A (1) and (3) ;
[(a-1) applications by a tenant under section 15-B for declaration and entry of a right of protected tenancy, or by a landlord to prove that a tenant has not such a right;] 4 RSA No. 7/2025
07. There is a scope for the maintainability and entertaining of the present civil second appeal involving substantial questions of law. The appellants have come forward proposing the substantial questions of law as set out in para 11 of the memo of the appeal.
08. The question of law which comes forth to be framed in the civil second appeal is:- "Whether the declaration being sought by the respondent/plaintiff in his civil suit with respect to protected tenancy status and right qua the suit land is the same declaration which intended to be examined and adjudicated upon in terms of section 84 (1) (a-1) of the Tenancy Act Svt., 1980 by the revenue officers under J&K Land Revenue Act Svt., 1996 so as to bar the civil suit from the cognizance of the civil court".
09. Admit.
10. Issue notice to the respondent.
11. Service of the respondent to take place through the Tamilat Section of the Principal District Judge, Udhampur in accordance with Order 5 of J&K Code of Civil Procedure, 1977 as it is the said code which is going to govern this civil second appeal relating back to the date of the institution of civil suit being in 2011 when the 5 RSA No. 7/2025 J&K Code of Civil Procedure, Svt., 1977 was the governing Code for the institution of civil suit.
12. List on 03.07.2025.
13. Send for the record of civil suit of File No. 34/Civil, titled as "Suresh Kumar Vs Ved Parkash & Ors." from the court of Sub-Judge, Udhampur and File No. 17/Civil Appeal CNR No. JKUD 02000148-2017, titled "Suresh Kumar Vs Ved Parkash & Ors." from the court of Principal District Judge, Udhampur.
14. Meantime, the operation of the impugned judgment and decree dated 20.01.2025 passed by Principal District Judge, Udhampur on File No. 17/Civil Appeal, CNR No. JKUD 02000148-2017, titled "Suresh Kumar Vs Ved Parkash & Ors.", shall remain stayed. The parties are directed to maintain status-quo with respect to the possession of the suit land. This direction is subject to objections of other side.
(RAHUL BHARTI) JUDGE JAMMU 02.05.2025 SUNIL