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2005 DIGILAW 337 (JK)

Zulfkar Ali Shah v. Alam Shah

2005-12-01

J.P.SINGH

body2005
1. This Civil Revision is directed against order dated 5-8-2004 of learned Munsiff, Judicial Magistrate Ist Class, Mendhar, whereby he has held suit titled Zulfkar Ali Shah and ors. Versus Alam Shah and ors., triable by authorities under the Agrarian Reforms Act, and transferred the suit pending before him to Collector (SDM, Mendhar). 2. Shri Babu Ram Sharma, learned counsel for the petitioner, submits that learned Munsiff has erred in holding that the suit was not triable by the Civil Courts. He relies on Subhan Dar v. Anwar Dar and others, reported as 1985 KLJ 477. Shri Babu Ram additionally submits that without framing any issue regarding jurisdiction of the Court to entertain the suit, learned Munsiff has transferred the case which, according to Shri Sharma, is a course, not recognized by law. Shri Babu Ram Sharma further submits that a suit for injunction is not cognizable by a Collector under the Agrarian Reforms Act and in that view of the matter, only Civil Courts can entertain a suit for injunction. 3. Shri J.A. Kazmi, learned counsel appearing for the respondents, while supporting the order impugned in the Revision Petition, has relied on another Single Bench judgment of this Court reported as 1999 Srinagar Law Journal 524, titled Bua Ditta v. Ananti. I have considered both the judgments of this Court. Submissions of learned counsel for the parties too have been registered. 4. In order to deal with the submissions raised by learned counsel for the parties, it would be advantageous to refer to Section 19 of the J&K Agrarian Reforms Act, 1976 (hereinafter referred to as the Agrarian Act�), which reads thus: Section 19. Powers of Revenue Officers (1) Unless the class of Revenue Officers, by whom any function is to be discharged or any power is to be exercised, is specified by or under this Act, the Government may, by notification, determine the functions to be discharged or the powers to be exercised under this Act by any class of Revenue Officers. (2) The manner and procedure for the performance of duties, the exercise and conferment of powers, distribution of business and withdrawal and transfer of cases under this Act shall, save as otherwise provided by or under this Act, be regulated by the Jammu and Kashmir Land Revenue Act, Samvat 1996 and the rules made thereunder. (2) The manner and procedure for the performance of duties, the exercise and conferment of powers, distribution of business and withdrawal and transfer of cases under this Act shall, save as otherwise provided by or under this Act, be regulated by the Jammu and Kashmir Land Revenue Act, Samvat 1996 and the rules made thereunder. (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) all other cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediary. (4) Any application, suit or proceeding of the 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 the Collector having jurisdiction in the place in which the land in dispute is situate. (5) Any application, suit or proceeding relating to 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, stand transferred to the Collector having jurisdiction over the area in which the land in dispute is situate, 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.� 5. Perusal of Section 19 (3) (e) of the Agrarian Act, demonstrates that all cases other than those contemplated by Sub-Section (3) Clauses (a) to (d) inclusive of those where the party in possession pleads adverse possession against the recorded owner/intermediary, too, are required to be disposed of by a Collector. 6. Perusal of Section 19 (3) (e) of the Agrarian Act, demonstrates that all cases other than those contemplated by Sub-Section (3) Clauses (a) to (d) inclusive of those where the party in possession pleads adverse possession against the recorded owner/intermediary, too, are required to be disposed of by a Collector. 6. A plain interpretation of Section 19 (3) (e) would, thus, be that it encompasses all possible cases in respect of land which falls in the definition of land as defined in Section 2(9) of the Agrarian Act, which are required to be tried by a Collector under the Agrarian Act 7. The submission of learned counsel for the petitioner/plaintiff that suit for issuance of injunction, cannot be taken cognizance by a Collector and the Collector has no jurisdiction to issue injunction under the Code of Civil Procedure, is untenable in view of what is provided in Rule 58 of the J&K Agrarian Reforms Rules, 1977. Rule 58 refers to the powers, which the Officers mentioned in Section 20 of the Agrarian Act are possessed of under of the Agrarian Act. This Rule specifically provides as follows: Rule 58. Special powers of officers; The officers mentioned in Section 20 of the Act shall have also powers of a Civil Court in respect of the following matters, namely :- i) appointment of next friend and/or guardian of a minor or a person of unsound mind in accordance with the provisions of Rule (1), (2), (3) and (4) of Order XXXII of the Code of Civil Procedure, Samvat 1977; and ii) granting of temporary injunctions in accordance with the provisions of Rules (1), (3), (4) and (5) of Order XXXIX of the Code of Civil Procedure, Samvat 1977. 8. The Officers mentioned in Section 20 of the Agrarian Act shall have also the powers of the Civil Court in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath or on solemn affirmation; (b) production and recovery of documents; (c) proof of facts by affidavits; and (d) any other matter which may be prescribed; and every such officer or authority shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure, Samvat 1989.� 9. Section 27 of the Agrarian Act, too, indicates that the Revenue Officer, having powers under the Agrarian Act, has been invested with all powers to deal with cases concerning possession, use and occupation of land in dispute between the litigating parties. 10. In view of the over all scheme of the Agrarian Act and the Rules framed thereunder, it can, thus, be safely held that a Collector functioning under the Agrarian Act, possesses all powers including the power to issue injunction under the Code of Civil Procedure in respect of land falling within the definition of Section 2 (9) of the Agrarian Act. 11. The plea raised by Shri Babu Ram Sharma that Collector does not have jurisdiction to issue injunction is, thus, untenable and is accordingly rejected. 12. Section 25 enacts a bar of jurisdiction for Civil Courts to settle, decide or deal with any question or to determine any matter arising under the Agrarian Act and Rules made thereunder. 13. The present case, as it so appears from averments made in the plaint and pleadings reflected in written statement, is a dispute regarding the possession of the parties over the land in question. The plaintiff claims possession over whole of the land, the defendants admit their possession only over some portion of the land. The defendants claim to be in possession of substantial portion of the suit land. Such disputes, which are essentially disputes regarding possession of land falling in the definition of land, as given under the Agrarian Act, are required to be dealt with by the Collector under the Agrarian Act. A Collector is invested with all powers both to protect the possession, regulate the use of possession and even the delivery of possession of the land covered by the Agrarian Act. Section 19 (4) of the Agrarian Act mandates that any Authority, Court or Tribunal, before whom any application, suit or proceeding of the kind mentioned in Section 19 (3) is pending, is under a statutory obligation to transfer the proceedings to the Collector having jurisdiction in the place in which the land situates. 14. Learned Munsiff has, thus, proceeded correctly in transferring the case to the Collector concerned. 14. Learned Munsiff has, thus, proceeded correctly in transferring the case to the Collector concerned. It so appears that the parties were not at variance in regard to the adjudication of the dispute by Collector and they, through their counsel, had rather suggested the concerned Collector too, who, according to them, had the jurisdiction to try the dispute. Admission of the learned counsel for the parties has been recorded in the order impugned in the Revision Petition. 15. Plea of learned counsel for the petitioner that the case has been transferred by the learned Munsiff, without framing any issue in the matter and without there being any objection of the defendants in the written statement that the Court does not have jurisdiction to try the suit, does not merit consideration, additionally because plea of jurisdiction of the Court, on the strength of Section 19 (4) of the Agrarian Act, could be raised at any time before the Court. A plaint can be rejected by a Court at any time, it is shown that the suit is barred by law in force. 16. Order passed by learned Munsiff, thus, does not suffer from any error of law or jurisdiction. 17. Case titled Subhan Dar v. Anwar Dar and anr., reported as 1985 KLJ 477, was decided in 1985, on the interpretation of Section 19 as it stood before its amendment in 1989. This judgment will not, thus, be applicable as regards the interpretation of Section 19 (3) (e) of the J&K Agrarian Reforms Act, 1976. Case reported as 1999 Srinagar Law Journal 524, Bua Ditta v. Ananti, cited by Shri Kazmi, supports the view, which I have taken in this case. 18. Judgment cited by learned counsel for the petitioner is, thus, not applicable to the facts of the present case. 19. This Civil Revision Petition, therefore, fails and is rejected accordingly.