CR/66/2006 of JAGDISH CHANDER AND ANR. Vs SOM DUTT SHARMA on 21 November 2007

HIGH COURT OF JAMMU & KASHMIR AT JAMMU

C. Revision No. 99/2006|

Date of Decision 12.12.OOS—

Randhir Singh v. Gian Chand & Anr.

(Coram:

Hon’ble Mr.Justice Vinod Kumar Gupta

Appearing Counsel:For the petitioner(s): ©Mrs.Sindhu Sharma, AdvocateFor the Res0ondent1S2* Mr S.D. Sharma!3Advocate 1/ Whether to be reported 1npress, Journal/Media : Yes/No11/ Whether to be reported inD1(est/Journal |: Yes/No : Yes/No Plaintitf-respondent No.! herein Gian Singh has filed a|civil suit in the court of Sub Judge Kathua for declaration andrestoration of possession besides permanent injunction inrespect of land comprising Khasra No. 863/778 situate invillage Logate Tehsil Kathua measuring 4 kanals.|Respondent-2 sold 4 kanals of land comprising in Khasra No.863/778-min situated in village Logate Tehsil Kathua for aconsideration of Rs.40,000/- to petitioner herein vide sale deeddated 20.7.2000. Respondent No 2 Mohar Singh was recorded aS Owner In possession in the revenue record. Respondent GianChand filed a civil suit seeking declaration to the effect that the|said sale deed executed by respondent Mohar Singh in favourof the petitioner herein in respect of above mentioned land 1snull, void, ineffective and inoperative with consequential reliefof restoration of possession to him besides grant of permanentinjunction restraining the other party from changing the natureof user of the land by raising any construction whatsoever. Theplaintiff-respondent No.1 herein claims himself to be the tenantof the above said land and an appeal was also filed before theCommissioner, Agrarian Reforms and the same was pendingthere. [The defendants in the suit contested the suit on the!eround that the civil court has no jurisdiction besides otherpleas.

On the pleadings of the parties the learned trial court|framed a preliminary issue in respect of the jurisdiction whichreads as under:- “Whether the suit before this court 1s not.maintainable in view of the bar under AgrarianReforms Act?POPD”

After hearing the parties the learned trial court vide its|order dated 19.5.2007/7came to the conclusion that civil court has jurisdiction in the matter and decided the issue against thedefendant.

Being aggrieved by this order, the defendant-petitionerherein filed this revision petition.

] have heard the learned counsel for the parties and|perused the record on the file.

Mrs Sindhu Sharma learned counsel for the petitioner|has submitted that the dispute in the matter is between tenantand owner in respect of land covered under the provisions ofAgrarian Reforms Act as such civil court has no jurisdiction. —On the other hand, Mr. S.D. Sharma, learned counsel forrespondent No. | has submitted that it 1s civil court which candeclare any sale deed null and void under the power vested inthe civil court under section 9 of the Code of C1vil Procedure.

Section 25 of the Agrarian Reforms Act, 1976 ( for short|hereinafter referred as the Act) bars the jurisdiction of civilcourt to settle, decide or deal with any matter in anyproceedings or case which is required to be determined underthe Act or the rules made there under. This section reads as|under:- “25. Bar ofjurisdiction of Civil Court.Notwithstanding anything containedin any law for the time being in force-(ayno Civil Court shall have jurisdiction to)settle, decide or deal with any question or to determine any matter arising under this Act or therules made thereunder; and (b)no order of any officer or authoritypassed under this Act or the rules made thereunderShall be called in question 1n any Civil Court.”

From the plain reading of this provision, it is clear that,

any question or matter arising under this Act or the rules cannotbe decided by the civil court nor any order passed by anyofficer or the authority under the Act or the rules made thereunder shall be called in question in civil court. In suchcircumstances, the scheme of the Act is to be examined. ThisAct 1s a special enactment and it takes away or abridges vestedrights conferred in respect of land under the existing laws,creates new rights and obligations, provide new remedies andprescribe new procedure and confers new jurisdiction. Section4 of the Act extinguishes the rights, title on a person in land 1fhe is not in its cultivating possession in Kharif 1971 and vests.the same in the State and such extinguishment has to befollowed by attestation of mutation. Thus a tiller in terms ofthe Act cultivating the land personally on the material date isentitled for conferment of procedural rights under sections 4and 8 of the Act in respect of the land held by him in 1971 inhis own right. However, unauthorized cultivation was nottreated as personal cultivation for the purpose of section 3.Section 35 of the Act bars the transfer of any land after September 1971 in order to defeat the provisions of the Act.Under section 4 of the Act the powers and jurisdiction todetermine any question as to in whose land was to be settledvests with the Collector under the Act. Further section 19 gives the power of the Revenue Officers under the Act. It reads as under:- “19 Powers of Revenue Officers 1#2Unless the class of revenue Officers, by whom any function 1sto be discharged or any power 1s to be exercised, 1s specifiedby or under this Act, the Government may, by notification,|determine the functions to be discharged or the powers to beexercised under this Act by any class of Revenue Officers.(2)The manner and procedure for the performance of duties, theexercise and conferment of powers, distribution of business|and withdrawal and transfer of cases under this Act, save as otherwise provided by or under this Act, be regulated by the|Jammu and Kashmir Land Revenue Act, Samvat 1996 and therules made thereunder|

192The following applications, suits and proceedings shall bedisposed of by a Collector:- (a)proceedings under section 56 of the J&K Tenancy Act,Samvat 1980; 1,2proceedings under sub-section (2) of Section 68-A of theJ&K Tenancy Act, Samvat 1980.

(c ) proceedings under section 24 of the J&K Big Landed Estates Abolition Act, Samvat 2007; (d) application by an owner or an intermediary that the personwho claims to be cultivating the land as a tenant, 1s not a tenantbut a trespasser, (e) all other cases of dispute including those where the party inpossession pleads adverse possession against the recordedowner/intermediary.

(4) Any application, suit or proceeding ofthe kind mentioned in sub-section (3), pending at the commencement of this Act before a Revenue.Officer subordinate to a Collector or any Civil or)Revenue Court, shall be transferred to theCollector having jurisdiction in the place in whichthe land in dispute is situate.(9)Any application, suit or proceeding relatingto cases specified in clause (e) of sub-section (3)|which, immediately before the commencement of

the Jammu and Kashmir Agrarian Reforms|(Amendment) Act, 1988 were pending before any|Civil Court, shall, on such commencement, standtransferred to the Collector having jurisdiction|over the area in which the land in dispute issituate, and the Collector shall in his capacity as|the appellate or revisional authority, as the case)may be, dispose of the same in accordance with|the provisions of this Act.”

From the scheme of the Act it is clear that the’jurisdiction of the civil court is barred to determine the disputein respect of the land which falls within the definition of landas defined in section 2 (9) of the Act. These questions arerequired to be determined by the Collector appointed under the Act.

In the present case the plaintiff-respondent No.1 herein|has challenged the sale deed executed by respondent no. 2 infavour of the petitioner herein on the ground that he is tenant inthe land. The civil court cannot try this issue and determine thestatus of the plaintiff-respondent No.1 in a suit as to whether —he 1s tenant in the land in dispute. It 1s the Collector only who.can decide this issue. The plaintiff/respondent-1 herein has_rightly preferred an appeal before the Commissioner, AgrarianReforms Kathua against the order dated 9.9.1989 passed by theAssistant Commissioner ( R) Kathua on mutation No. 507 ofvillage Logate Tehsil and District Kathua whereby correctionof Khasra Girdawari for the period Kharif, 1971 in respect of the suit land showing respondent No. 2 herein in cultivatingpossession of the land. The learned Collector vide order dated17.8.2002 after accepting the appeal of the plaintiff-respondentNo. 1 remanded the case back for de-novo enquiry and passingappropriate orders under law. Thus the mater in controversybetween the parties 1s covered under the provisions of the Act.

The contention of the learned counsel for respondent no.1 that the power to declare the sale deed as null and void veststo the civil court and not to revenue authority is not acceptablebecause under the provisions of the Act if the plaintiff-respondent no. | is held to be the owner he ts entitled to therelief claim by him. Rulel-58 of Jammu and Kashmir AgrarianReforms Rules 1977 gives special powers to the officersmentioned in section 20 of the Act of a civil court in respect ofcertain matters. Section 20 of the Act also gives power of thecivil court in respect of the matters defined therein. Section 27.of the Act has also invested the officers under the Act with all|powers to deal with the cases regarding possession, use andoccupation of the land between the litigating parties.|

The present suit as stated above 1s between intermediary|or recorded owner and party in possession of the land and as.such cases are triable by the Collector appointed under the Act.

For the foregoing reasons it can be safely concluded that|the Collector or authorities under the provisions of AgrarianReforms Act, 1976 are invested with all powers to decide thematter in controversy between the parties including the powerto issue injunction under the Code of Civil Procedure.

Conclusion

Accordingly, I would hold that the civil court has no|Jurisdiction to try the suit which is hit by the provisions ofAgrarian Reforms Act. The learned trial court committed errorin holding that the civil court has jurisdiction to try the suit.Hence this revision petition 1s accepted and the order dated19.5.2006 passed by the learned Sub Judge, Kathua is herebyset aside.

Disposed of.

( Vinod Kumar Gupta)Judge

Jammu12 12.2008|Chun1/CS