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2008 DIGILAW 262 (JK)

Jana v. Haja

2008-06-30

J.P.SINGH

body2008
1. Lasso Malik had two daughters, Mst. Jana and Mst. Haja. Mst. Jana, the elder daughter, claims to be the exclusive and absolute owner of the properties left by Lasso Malik, being her dukhtere-khana-nashin, whereas Mst. Haja, the younger one, seeks half share in the properties of her father, on the basis of a Will executed by him on April 3, 1964. 2. Mst. Haja, respondent No.1, had accordingly filed a suit for permanent injunction for a direction to the petitioners to refrain from depriving her from her share of the landed property and house belonging to late Lasso Malik, in the Court of Munsiff, Banihal. 3. Munsiff, Banihal transferred this suit to Collector, Agrarian Reforms, Ramban, who vide his order of April 11, 1984, allowed it and declared Mst. Haja, respondent No.1 entitled to half share in the properties of her father in terms of his Will. 4. Petitioner Nos.1 and 2s appeal against Collector, Agrarian Reforms, Rambans order did not succeed and was accordingly dismissed on September 29, 1997. Jammu and Kashmir Special Tribunal, when approached by the petitioners too did not find any merit in their revision petition and accordingly dismissed it vide its order of October 31, 2001. 5. Mst. Jana, her husband and Abdul Hamid, petitioner No.3, have filed this writ petition calling in question the orders passed by the authorities under the Jammu and Kashmir Agrarian Reforms Act, 1976. 6. Learned counsel for the petitioners, Mr. Sharma submitted that the orders passed by the Authorities under the Jammu and Kashmir Agrarian Reforms Act, 1976, (hereinafter to be referred as the Act), are without jurisdiction and that the Authorities had failed to advert to, much less, adjudicate upon the question of jurisdiction raised by the petitioners before them. According to the counsel, the dispute raised by respondent No.1 in her suit was not a dispute which could be taken cognizance of by the Authorities under the Jammu and Kashmir Agrarian Reforms Act and the order of transfer of respondent No.1s suit to the Collector was bad in law as the Civil Court had refused to exercise jurisdiction in deciding respondent No.1s suit on merit. 7. Justifying the findings recorded by the Authorities under the Act, Mr. 7. Justifying the findings recorded by the Authorities under the Act, Mr. O.P. Thakur, learned counsel for respondent No.1, submitted that learned Munsiff was right in transferring the suit to the Collector and the findings recorded by the three Revenue Authorities on facts cannot be questioned by the petitioners invoking extra ordinary writ jurisdiction of the Court. Learned counsel submitted that having acquiesced to the jurisdiction of the Authorities under the Act, the petitioners are estopped from questioning their jurisdiction and assailing the orders questioned in the writ petition. 8. Both the learned counsel have heavily relied on the two full Bench decisions of this Court in Jagtu and others versus Badri and others, reported as AIR 1980 J&K 1 and Mohd. Hussain versus Rahim and another, reported as 1986 KLJ 170, in support of their respective submissions. 9. I have considered the submissions of learned counsel for the parties, gone through the orders passed by the Authorities under the Act and the case law cited at the Bar. 10. In order to decide the issue raised in this writ petition as to whether respondent No.1s suit was cognizable by the Civil Courts or by the Authorities under the Act, regard needs to be had to what was held by this Court in Jagtu and others versus Badri and others (supra) where the Court was dealing with the expression appearing in Section 19(3)(e) of the Jammu and Kashmir Agrarian Reforms Act, 1972 as it so exists even today in the Jammu and Kashmir Agrarian Reforms Act, 1976 (amended) where this Court had held as follows: - 26. Sub-clause (e) of Section 19(3) will not, however, apply to suits or proceedings which merely involve the determination of question of title or right on the basis of succession and inheritance or partition without claiming possession. Where a suit for declaration is brought by A claiming herself to be a Khana Nishin daughter which status is denied by the defendant; she is in possession of the suit land, there is no bar for the civil court to entertain and try the suit and grant decree of declaration. In the same way, where an adopted son in possession of the property of the adoptive father brings a suit for declaration and the other side denies his status as such. In the same way, where an adopted son in possession of the property of the adoptive father brings a suit for declaration and the other side denies his status as such. Here again as the matter involves purely a question of declaration and not possession, therefore, the suit is triable by the civil court, Section 19(3) (3) and Section 25 are to be read conjointly with Section 41 which saves the operation of personal or statutory law of succession in respect of ownership rights available to a person. This section guarantees the ownership rights of the parties based on personal or statutory law. There is, therefore, nothing in the Act which can prevent the civil courts from deciding these questions. In the same way suits for mere cancellation of decrees on whatsoever ground are triable by the civil courts. After the civil court decides the rights, if later on any question of possession of the property is raised, it will be decided by the Collector. 11. Even while dealing with the unamended provision of Section 19(3)(e) which after its amendment by Act No. VIII of 1981 would read as any other dispute relating to or arising out of the provisions of this Act, the later Full Bench of this Court, while dwelling on the powers of the Civil Court to entertain suits of various types, had opined as under: - 10. From a plain reading of section 19(3)(e) it becomes clear that only those matters which arise out of the Act or relate to the provisions of the Act are to be decided by the officers and authorities under the Act and other matters which do not fall in this category are to be dealt with or decided by the Civil Court. Section 19(8)(e) as amended has narrowed down and limited the jurisdiction of a Collector in respect of other matters which are outside the ambit of clause (e) section 19 (8). Those matters which could be said to be outside the ambit of section 19(3)(e), as amended, may be illustrated as under;- i) Suit for declaration of title in respect of land in which dispute is raised as regards possession of the land. Those matters which could be said to be outside the ambit of section 19(3)(e), as amended, may be illustrated as under;- i) Suit for declaration of title in respect of land in which dispute is raised as regards possession of the land. The said dispute may be cognizable by a civil Court, but as regards the delivery of possession, the matter shall have to be referred to the authorities under the Agrarian Reforms Act because delivery of possession may involve determination of the question of ceiling area. ii) Suit for right of prior purchase in which possession also is claimed. Such a suit will be cognizable by a civil Court in so far as the determination of right of prior purchase is concerned. If the suit is decreed and the right of a pre-emptor is determined by a civil court. The question of delivery of possession of land shall have to be considered by the authorities under the Agrarian Reforms Act in the light of the provisions of that Act so as not to enlarge the ceiling area of the pre-emptor. iii) A suit regarding ownership of land based on custom of adoption or khana-nishin daughter in which possession is also claimed. Validity and existence and fact um of custom is to be determined by a civil court and any question relating to the delivery of possession is to be referred to the Collector who will settle the same in the light of the provisions of the Act. iv) In a suit in which a document such as sale, gift or any other document concerning the land is challenged on the ground of its being void, ineffective, inoperative is to he tried by a civil court, if the additional relief in such a suit is relief for possession, the matter relating the question of delivery of possession shall have to be referred to the Collector for settling it in the light of the provisions of the Act. v) In a suit in which a compromise decree of a contested decree is challenged on the ground of its having been passed on the- ground of fraud, misrepresentation, undue influence etc. relating to land shall be cognizable by a civil Court and not by the Collector. v) In a suit in which a compromise decree of a contested decree is challenged on the ground of its having been passed on the- ground of fraud, misrepresentation, undue influence etc. relating to land shall be cognizable by a civil Court and not by the Collector. In such a suit if the plaintiff succeeded in establishing his title and in avoiding the decree or a compromise deed, the question of delivery of possession is squarely to be determined by the Collector. vi) A person in possession of land claiming ownership by prescription can bring a civil suit only because Collector will not be competent to pronounce on the question of adverse possession, which would involve the termination of extinguishment of title of a true owner in favour of a person in possession on the sole ground of prescription. This type of suit will be only declaratory because the plaintiff in such a suit will be in possession of the land and no question of delivery of possession would arise. vii) Then there are suits which are saved from the operation of the Act by virtue of section 41. These suits relate to succession and partition on the ground of personal law and statutory law. 12. Respondent No.1 had claimed half share in the properties comprising of land and house left by her father on the basis of a registered Will in terms whereof both petitioner No.1 and respondent No.1 were entitled to half share each in the properties of their late father. 13. This suit, by its very nature, was not the one which related to or arose out of the rights and liabilities arising out of the provisions of the Jammu and Kashmir Agrarian Reforms Act, 1976. It, on the other hand, was a pure and simple suit where claim to the properties of late Lasso Malik had been founded on the basis of inheritance relying on his Will of 1964. 14. In view of the law laid down by the Full Bench of this Court in Mohd. Hussains case, this suit was required to be tried and decided by the Civil Court as the Authorities under the Agrarian Reforms Act had no jurisdiction to deal with the questions which would arise for consideration in the suit. 14. In view of the law laid down by the Full Bench of this Court in Mohd. Hussains case, this suit was required to be tried and decided by the Civil Court as the Authorities under the Agrarian Reforms Act had no jurisdiction to deal with the questions which would arise for consideration in the suit. Even if the unamended Section of Agrarian Reforms, Act, 1976 had to apply, the position in respect of respondent No.1s suit would remain same and it would be triable by the Civil Courts and not by the Authorities under the Act, as held by the Full Bench Judgment in Jagtu and others versus Badri and others in its paragraph No. 26. 15. Looked from any angle, respondent No.1s suit was cognizable by the Civil Courts and not by the Authorities under the Jammu and Kashmir Agrarian Reforms Act, 1976. 16. I do not find merit in Mr. Thakurs submission that petitioners had acquiesced to the jurisdiction of the Authorities under the Jammu and Kashmir Agrarian Reforms Act and could not thus question their jurisdiction. This is so because any amount of acquiescence by a party would not supply requisite jurisdiction to an Authority which otherwise does not possess it under any law for the time being in force. The authorities under the Jammu and Kashmir Agrarian Reforms Act were thus coram non judice, hence disabled to take cognizance of respondent No.1s suit. 17. Plea of acquiescence even otherwise would not apply in the present case because what I find from a copy of petitioners revision petition filed before the Jammu and Kashmir Special Tribunal, is that petitioners had specifically stated in paragraph No.8 (b & c) of their revision petition that the provisions of Agrarian Reforms Act had no application to the issues raised in the suit and the suit had been wrongly transferred to the Collector. 18. Strange it appears that the Jammu and Kashmir Special Tribunal had not taken cognizance of this important question of law raised by the petitioners and had erroneously upheld the issue of inheritance of the two sisters to the properties of their late father which had been decided by the Collector and Commissioner under the Act who had no jurisdiction to decide questions affecting personal or statutory law of succession. 19. I, therefore, find sufficient force in Mr. 19. I, therefore, find sufficient force in Mr. Sharmas submission that the Authorities under the Act had erred in assuming jurisdiction to decide the question of inheritance thereby usurping and exercising the power and authority which vested exclusively in the Civil Court. 20. Learned Munsiff, Rambans order transferring respondent No.1s suit to the Collector was, therefore, without jurisdiction and illegal. 21. I am, therefore, of the view that the orders passed by Munsiff, Ramban and the Authorities under the Agrarian Reforms Act are without jurisdiction which are required to be set aside. 22. This petition, therefore, succeeds and is, accordingly, allowed. Order passed by Munsiff, Ramban transferring respondent No.1s suit to Collector, Agrarian Reforms, Ramban is set aside along with the orders passed by Collector, Additional Deputy Commissioner, Ramban on April 11, 1984 and the Jammu and Kashmir Special Tribunal on October 31, 2001. 23. Respondent No.1s suit is ordered to be revived on the file of Munsiff, Ramban who shall try the suit in accordance with law. 24. Parties through their learned counsel are directed to appear before learned Munsiff, Ramban on July 29, 2008.