Jammu & Kashmir High Court
Jyoti Jamwal vs Tilak Raj on 30 August, 2018
Equivalent citations: AIR 2019 (NOC) 215 (J.&K.), AIRONLINE 2018 J AND K 116, AIRONLINE 2018 J AND K 119
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU`
OW-104 No.14/2015, IA No. 01/2017
Date of Order:30.08.2018
Jyoti Jamwal Versus Tilak Raj
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge.
Appearing Counsel:
For the Petitioner(s) : Mr. Rahul Bharti, Advocate &
Mr. Satinder Gupta, Advocate
For the Respondent (s): Mr. Vikram Sharma, Advocate
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. The case of the petitioner is that she purchased land measuring 02 kanals bearing Khasra no.671 min, Khewat no.73 and Khata no.506 min, situated at Muthi, Tehsil and District Jammu, by virtue of sale deed dated 02.07.1992, duly registered in the Court of Sub-Registrar Jammu. On the basis of sale deed, a mutation has also been attested in the name of the petitioner. It is stated that after the purchase of the said plot of land which is bounded from one side by road, one side by compound wall of some other house owner, one side by house and one side by an open plot. The petitioner with the plan of starting construction, dumped the construction material on spot, for raising the plinth and boundary wall over the above said plot in the month of October, 2011. However, the respondent, who has no right in the above mentioned plot of land belonging to the petitioner, started interference into the said property and threatened to dispossess the petitioner without having any right over the said plot of land. It is stated that apprehending her forcible dispossession at the hands of respondent, she filed a suit for permanent prohibitory OW-104 No.14/2015 Page 1 of 9 injunction, along with an application under Order 39 rule 1 and 2. The trial Court initially granted the status quo order protecting the possession and forcible dispossession from the land measuring 02 kanals bearing Khasra no. 671 min, Khewat no.73 and Khata no.506 min, situated at Muthi, Tehsil and District, Jammu. The respondent caused his appearance and filed written statement as well as objections pleading that he has purchased 7 marlas of land out of Khasra No. 742 min situated at Muthi by virtue of sale deed dated 29th may, 2007 registered with the Sub Registrar Jammu. Thereafter, the trial court made the status quo order absolute and directed the parties to maintain status quo which order was assailed by the respondent by way of an appeal, which appeal was allowed by the Principal District Judge, Jammu and the case was remanded to the trial Court to decide the matter afresh. It is stated that trial Court thereafter declined the request of the petitioner for grant of temporary injunction and dismissed the application. Thereafter, petitioner filed an appeal before the District Judge which appeal was made over to the 2nd Additional District Judge who after hearing the parties upheld the order of trial Court and dismissed the appeal by passing the order dated 22.01.2015, which is impugned in the instant petition.
2. The petitioner has challenged the impugned order dated 22.01.2015 on the grounds that both the Courts below have failed to appreciate that the suit land forms the plot of land measuring 02 Kanals comprising khasra no.671 min, Khewat no.73 and Khata no.506 min situated at Muthi, Tehsil and District Jammu and not in Khasra No. 742 and have wrongly arrived to a finding that the petitioner has no prima case ignoring the fact that the petitioner has purchased land measuring 02 kanals by virtue of sale deed dated 02.07.1992 forming the plot of land measuring 2 kanals comprising Khasra no.671 min Khewat no.73 and Khata no.506 min, situated at Muthi, Tehsil and District Jammu. It is stated that both the OW-104 No.14/2015 Page 2 of 9 Courts below have admitted the petitioner to be the owner and her name is figured in the revenue record as is evident from the attestation of mutation dated 28.07.1002 which mutation is still intact and has not been challenged by anybody despite the fact that courts below have allowed the respondent to forcibly encroach upon the portion of land out of khasra No. 671 min, which is owned and possessed by the petitioner for the protection of which petitioner had filed a suit and prayed for interim protection. However, the courts below have relied upon the report got prepared by the respondent in connivance with the Revenue officials including the police which report is one sided affair and has been got prepared at the instance of some high officials occupying some high positions in the Govt. at the relevant time. It is further stated that the observations of the appellate Court that the report submitted by the Assistant Commissioner Revenue Jammu in association with ASP Jammu pertains to the identification of the land in dispute and not to indentify the land of the petitioners is a misconceived one. It is stated that a request was also made to the appellate Court for appointment of a local Commissioner to determine the location of the land with the main objective to clinch the issue between the parties. It is stated that the petitioner had been requesting the Courts below to get the land identified on the basis of sale deed in possession of both the parties falling in Khasra no.671 min, Khewat no.73 and Khata no.506 min situated at Muthi, Tehsil and District Jammu, and Khasra No. 742, respectively.
3. Learned counsel for the petitioner besides reiterating the grounds taken in memo of petition, has argued that both the Courts below have failed to appreciate the controversy involved and have incorrectly held that the petitioner has no prima facie case, whereas the petitioner had purchased land prior in time as compared to the respondent. Learned counsel for the petitioner in support of his argument has relied upon AIR 1940 Privy OW-104 No.14/2015 Page 3 of 9 Council 3 Chandan Mull Indra Kumar & ors. vs. Chiman Lal Girdhar Das Parekh and anr; 1968 AIR (Ker) 28 Maroli Achuthan vs. Kunhipathumma; 1987 AIR SC 2137E Achuthan Nair vs. P. Narayanan Nair; 1988 AIR (Ori) 248 Mahendranath vs. Purnananda; 2004(1) JKJ 545 Ashok Singh and ors. vs. Sujan Singh and ors.; 2005 (Supp.) JKJ 608 Kunj Lal vs. Union of India and sors.; 2006 AIR (MP) 164 Gajraj Singh vs. Ram Singh; 2007 (2) GLT 519 Aradhana Das vs. Karuna Kanta Nazarika and anr.; 2008 (Supp.) AIR SC 616 Haryana Waqf Board vs. Shanti Sarup and ors.; 2009 (2) JKJ 600 Rifat Ara (Dr.) and anr. Vs. S. Karan Singh Raina; 2009 (3) JKJ 396 Gh. Hassan Ganai vs. Sudershah Katiyal and ors.; 2012 (1) SriLJ 321 Ab.Rehman Mandoo and ors. vs. State and ors.; 2014 (2) Shimla 828 Dhani Ram vs. Ramesh Kumar; 2016 (3) ALD 197 Sarala Jain and ors. vs. Sangu Gandadhar and ors.
4. Whereas learned counsel for the respondent states that the petitioner filed a suit for prohibitory injunction with respect to her alleged land in Khasra No. 671 min Muthi Jammu against the respondent herein who owns the land measuring 7 marlas in Khasra No.742 min, Khewat No.48 min, Khata No. 376 min situated at Village Muthi, Jammu. It is stated that in the garb of ex-parte interim order, the husband of the petitioner along with others demolished part of wall which was being raised by the respondent around his own land, for which an FIR No.317 of 2011 for commission of offences under Sections 447/427 RPC came to be lodged at Police Station Domana. It is stated that after the respondent filed detail written statement, the interim application was contested and the learned Trial Court (2nd Additional Munisff, Jammu) after perusing the material on record including the demarcation report, passed an order dated 19.10.2013 whereby the interim directions were vacated and the interim application of the petitioner came to be dismissed.
OW-104 No.14/2015 Page 4 of 95. Learned counsel for the respondent further states that the demarcation was conducted by a team of Revenue Officers under the supervision of Assistant Commissioner Revenue which reveals that the land qua which the dispute was raised by the petitioner actually falls in Khasra No.742 min i.e. of respondent. It is stated that the order dated 19.10.2013 was challenged by the petitioner in Civil Miscellaneous Appeal before the Court of 2nd Additional District Judge, Jammu. The learned Appellate Court observed that the demarcation which was conducted under the supervision of Senior Revenue Officers in presence of the Revenue Records i.e. Aks Masavi and Shajra and with the help of ETS machine has revealed the subject land to be in Khasra no. 742 and not in Khasra No.671 and, therefore, the petitioner lacks prima facie case in her favour, thus the appeal came to be dismissed by order dated 22.01.2015. It is further stated that during the pendency of the present petition, petitioner again moved an application to the Revenue Minister for demarcation of her land. The said application was forwarded by the Revenue Minister to the Regional Director Survey and Land Records, Jammu. The Regional Director Survey & Land Records, vide order dated 06.10.2015 constituted a team comprising of Tehsildar Jammu, Naib Tehsildar Muthi, Naib Tehsildar in the office of Regional Director Survey and Land Records, Jammu, Girdawar Muthi and Patwari concerned, for effecting demarcation on the land in question. Thereafter, the Assistant Commissioner Revenue Jammu vide his communication dated 03.03.2016 and Regional Director Survey and Land Records, Jammu vide his communication dated 07.04.2016 directed the Tehsildar Jammu North for conduct of Nishandehi. The Tehsildar vide his letter dated 30.04.2016 reported that since the area is densely populated as such ETS machine is to be deployed for conducting the Nishandehi in the said area. Thereafter, Nishandehi was conducted by the team of Revenue Officers with the help of ETS machine. It is further stated that the demarcation OW-104 No.14/2015 Page 5 of 9 report dated 21.08.2016, so prepared by the team of the Revenue Officers again concluded that the piece of land on which the petitioner was staking claim actually falls in Khasra No.742 min i.e, the khasra number of the respondent. It is further stated that realizing that demarcation conducted at the instance of petitioner again concludes finding in favour of the respondent and against the petitioner, the husband of the petitioner, namely, K. D. Singh pressurized the demarcation team and stressed that the demarcation report shall not be finalized. The attempt of the husband of the petitioner was also reflected in the said demarcation report. It is stated that the report of the Commission has clearly established that the plot where the respondent is in possession as owner is actually Khasra No.742 min and not Khasra No.671 min as alleged by the petitioner.
6. I have considered the rival contentions.
7. From the perusal of relevant record, it is evident that both the courts below have categorically held that disputed land falls in khasra no.742 min and not under Khasra no. 671 min as alleged by petitioner herein. Courts below have relied upon report dated 21.10.2011 of Nishan Dehi (demarcation) of land in question, conducted by a team of two officer SP Rural and ACR along with other revenue officer. This report clearly states that petitioner has no land in Khasra no.742.
8. The crux of argument of counsel for petitioner is that this Commissioner report is not admissible on the ground that petitioner was not called and heard, while conducting of demarcation; that this Nishan Dehi (demarcation) was not conducted in the suit, but it was conducted prior to suit, so Courts should have not relied upon the same. These arguments do not hold good on the grounds that petitioner has not challenged this Nishan Dehi in any forum or Court; it has remained un-rebutted. Secondly, even otherwise Nishan Dehi has been conducted by senior OW-104 No.14/2015 Page 6 of 9 officer of Revenue Department( ACR) along with SP Rural and other revenue officer, who while conducting Nishan Dehi took all revenue record on spot. It is also worthwhile to mention here that during pendency of this petition, petitioner herein moved an application before Revenue Minister for fresh demarcation of land; said application was forwarded by Minister to Regional Director Survey and Land Record, Jammu and on 6.10.2015 a team consisting of Tehsildar, Naib Tehsildar in the office of Regional Director Survey and Land record, Jammu, Girdawar and Patwari of the area was constituted for effecting demarcation; it further appears that ACR on 3.3.2016 and Regional Director Survey and Land Records Jammu on 7.4.2016 directed Tehsildar Jammu North to conduct the demarcation; Tehsildar then asked for ETS machine for demarcation of land as the area was densely populated. Thereafter demarcation was conducted with the help of ETS machine and report was prepared. That report dated 21.8.2016 so prepared by Tehsildar also categorically states that disputed land falls in Khasra No.742. In report it has also been stated that the husband of petitioner pressurized the commissioner not to finalize this report. All these documents are in file, which was placed on record by way of filing of application by respondent for vacation of stay order granted by this court.
9. I have carefully gone through the law cited by counsel for petitioner.
There is no dispute with regard to laws cited, but these are not applicable in present set of case. All these laws are pertaining to appointment of Commissioner and report of commissioner.
10. Proceedings under Article 227 of the Constitution of India read with section 104 of Constitution of J&K are not original but only supervisory. High Court has substantial power of superintendence over all courts and tribunals throughout the territories in relation to which it OW-104 No.14/2015 Page 7 of 9 exercises jurisdiction; High court may exercise this power in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
11. In Shalini Shyam Shetty vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329, it is held as under:-
"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.
66. We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
67. As a result of frequent interference by the Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice. This Court hopes and trusts that in exercising its power either under Article 226 or 227, the Hon'ble High Court will OW-104 No.14/2015 Page 8 of 9 follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest courts of justice within their jurisdiction will adhere to them strictly."
12. In view of what has been discussed above, this petition is dismissed, as order impugned does not suffer from any infirmity of law or facts. Record of Courts below be sent back to respective courts (Sanjay Kumar Gupta) Judge Jammu:
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