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2010 DIGILAW 349 (JK)

Ab. Salam Wani v. Mohd. Subhan Khan

2010-06-05

Hasnain Massodi

body2010
1. The petitioners on 29-07-2008 filed a suit for partition, possession and injunction against the respondents in the Court of Sub Judge, Bijbehara. The petitioners case was that land measuring 2 Kanals 3 Marlas comprising Survey No. 2236 and 5 Kanals 4 Marlas comprising survey No. 2234, situated at Village Waghama, Tehsil Bijbehara was joint and un-partitioned between the parties and that the respondents were avoiding to partition the suit land so as to grab it to the exclusion of the petitioners. The suit land was said to have devolved on the parties from their ancestor Shri Late Aziz Khan. The petitioners, alongside the suit, filed an application for grant of temporary injunction. The Trial Court on the date, the suit and the application were presented, directed the parties to maintain status quo with regard to possession of the suit land and after the respondents, entered appearance, filed their objections, dismissed the application and refused to grant a pendent-lite injunction. 2. The order of Learned Trial Court on 30th October, 2008, disallowing temporary injunction application, was assailed through medium of Civil First Miscellaneous Appeal before Learned District Judge, Anantnag. The appellate Court vide order dated 30th May, 2009 dismissed the appeal. The petitioners, aggrieved of the order dated 8th November, 2008 of the Trial Court and 30th May, 2009 of the Ist. Appellate Court, have filed instant Civil Revision Petition. 3. The Trial Court order and Appellate Court order are questioned on the grounds that after the respondents admitted in their objections to the temporary injunction application, that the suit land was joint and un-partitioned, the Trial Court ought not to have declined the prayer for ad-interim injunction and dismissed the temporary injunction application. The Appellate Court, it is pointed out because of non application of mind by the Trial Court and mis-appreciation of the case projected by the petitioners, had no option but to accept the appeal and set aside the order of the Trial Court dated 8th November, 2008. The Trial Court and the Appellate Court are said to have erroneously held the Civil Court to have no jurisdiction to deal with the matter, on the ground that the partition suit fell within the jurisdiction of Revenue Court. The Trial Court and the Appellate Court are said to have erroneously held the Civil Court to have no jurisdiction to deal with the matter, on the ground that the partition suit fell within the jurisdiction of Revenue Court. The Trial Court and the Appellate Court, it is urged, failed to appreciate that the suit filed by the petitioner was not the suit for partition simpliciter and that the petitioners in addition to partition of the suit land asked for possession and permanent injunction, that proceedings in an application for partition of the suit property laid by the petitioners before the Revenue Court, was stalled by the respondents, so as to execute their plans to raise construction on the suit land without its partition. The temporary injunction application and the appeal are claimed to have been dismissed on mere conjectures, surmises and on irrelevant material. 4. I have gone through the Revision Petition as also the impugned orders, certified copies whereof are appended to the petition. I have heard learned counsels for the parties. 5. The petitioners’ suit before the trial court was that petitioners and the respondents were co-sharers of the subject matter of the suit and that the respondents without formal partition of the suit property were keen to raise construction on the suit property and force the partition of their choice on the petitioners. The petitioners traced their lineage and that of the respondents to one Aziz Khan from whom the suit land was said to have devolved on the parties to the suit. The petitioners against the aforesaid backdrop asked for the partition and possession as also an injunctive relief restraining the respondents from raising any permanent structures on any part of the suit land till it was partitioned. 6. The respondents admitted that the petitioners were their collaterals and that the parties to the suit descended from said Aziz Khan, their family patriarch, and that the subject matter of the suit as also other properties were inherited by the parties from the Aziz Khan. However, the respondents primarily resisted the suit inter alia on the grounds: i. That the suit was barred under section 139 J&K Land Revenue Act. ii. That the parties had already partitioned their property and were in possession of their respective shares. iii. However, the respondents primarily resisted the suit inter alia on the grounds: i. That the suit was barred under section 139 J&K Land Revenue Act. ii. That the parties had already partitioned their property and were in possession of their respective shares. iii. That the parties way back in 1960 executed an agreement wherein ancestral property was admitted to have been partitioned. iv. That some of the co-sharers had gifted their share in the property to the respondents. 7. Learned trial court instead of taking a bird’s eye view of the case set up by the parties, delved deep into the facts of the case and rushed to the conclusions even before the parties had a reasonable and adequate opportunity to substantiate their stands. Learned trial judge posed a series of questions to itself and thereafter proceeded to hold that the petitioners had not put a fair question for trial and had not established a prima facie case in their favour. It would be advantageous to extract the following part from the order of the trial court impugned in the petition : "As per applicants’ version, the non-applicants are entitled to four shares and applicants are entitled to one share from survey no. 2234, then how it is possible that under survey no. 2236, the non-applicants are not entitled to four shares out of five shares but are only entitled to 18 marlas out of two kanals and three marlas. The non-applicants have placed on record the photocopies of sale deed and revenue extract which reveals that the non-applicants have purchased 18 marlas under survey no. 2236 from the sons of Rasool Khan and Ahmad Khan, then why they are not entitled to a share from this survey no. being sons of Rehman Khan who was one of the sons of Aziz Khan. This reveals that the applicants have not put a fair question for trial, hence does not have a prima facie case in their favour. 8. The trial court acted as if it was deciding question of title in the suit property and not assessing apparent strength of the case set up by the parties as is expected to be done while dealing with an application for temporary injunction. The trial court proceeded to accuse the petitioners of having withheld "certain documents" without specifying the documents that the petitioners had withheld. The trial court proceeded to accuse the petitioners of having withheld "certain documents" without specifying the documents that the petitioners had withheld. Learned trial judge rushed to the conclusion that as other property left by Shri Aziz Khan was not made subject matter of the suit, the suit property was to be presumed to have been partitioned. The trial court gave much importance to an application claimed by the respondents to have been submitted by the petitioners to the Tehsildar concerned for demarcation of the land and proceeded to hold that the suit was not maintainable under section 139 Land Revenue Act. The first appellate court followed suit and exclusively concentrated on question of maintainability of the suit. The first appellate court without looking into the question whether learned trial judge had paid due attention to the fundamental principles governing exercise of discretion under Order 39 CPC threw out the appeal on the ground that the suit was not maintainable. 9. The first appellate court while taking notice of the fact that the petitioners while asking the Revenue authorities for demarcation, maintained that the suit property was un-partitioned, nonetheless proceeded to hold that the suit in terms of section 139 (2) (XVII) was not maintainable. 10. Both the trial court as well as the appellate court while dealing with the temporary injunction application and first civil miscellaneous appeal have misdirected themselves and failed to appreciate the case set up by the petitioners in the suit. In the first instance the trial court has subjected the case projected by the parties, to an in-depth and close scrutiny and acted as if the trial court was deciding the main suit. The civil courts have been reminded times without number, that a civil court when approached with an application under order 39 CPC for grant of ad interim injunction till disposal of the suit is expected to take an overview of the case projected before it and evaluate the apparent strength of the case set up by the parties respectively and thereafter proceed to opine, that whether a party asking for the ad interim injunction had at least put up a fair question for trial. The court has to appreciate that it is not finally deciding the lis and that the issues raised are to be determined only after the parties have an opportunity to substantiate their case and that the temporary injunction granted is to operate in a limited timeframe. Too close a look on the case projected, is fraught with the danger to prejudge the case and at times rush to the conclusions, as has been done in the instant case by the trial judge, when assertions are bald and unproved and parties are yet to unfold their case. The trial judge appears to have made use of almost every averment made in opposition to the temporary injunction application, entered into a debate with itself and placed reliance on the documents that were yet to be proved, to decline the prayer for grant of interim injunction. The trial judge has returned a final verdict on all pleas be it estoppel, laches, acquiescence or adverse possession raised by the parties at the very outset without waiting for trial of the suit to commence, let alone conclude. 11. The trial court and the first appellate court while pressing into service section 139 (2) (xvii) J&K Land Revenue Act to hold the suit barred and the jurisdiction of the civil court excluded, lost sight of the fact that the petitioners’ suit was not a suit for partition simpliciter. The petitioners asked for reliefs that are to be dealt with only by the civil court and are alien to proceedings before the Revenue officer. The jurisdiction of the civil court to try all suits of civil nature in terms of section 9 CPC is all embracing and unlimited. The jurisdiction of a civil court to try suits of civil nature is eclipsed only to the extent cognizance of suites is expressly or impliedly barred. 12. Why should jurisdiction of the civil court to try suits of civil nature be barred is a question not difficult to answer. The reason is that if a special law provides for a special relief in case of a particular suit or specie of suites, there is no reason to allow a remedy in such cases under a general law. Why should jurisdiction of the civil court to try suits of civil nature be barred is a question not difficult to answer. The reason is that if a special law provides for a special relief in case of a particular suit or specie of suites, there is no reason to allow a remedy in such cases under a general law. In the circumstances whenever a civil court is told that its jurisdiction to take cognizance of the suit is expressly or impliedly barred, the civil court is duty bound to sit up and find out whether the grievance that is voiced before it and the relief that is sought can be granted by the special court/authority/forum under statute that bars cognizance of the suit by the Civil Court. If the answer is no, the civil court must decline to accede to the prayer made by the defendants and refuse to take its hands of the lis. 13. The general law is that the civil court has jurisdiction to try all suites of civil nature and it is for the person who claims that jurisdiction of the civil court to take cognizance of a civil suit is barred under statute, to bring the civil suit within the eclipse zone. It is against the said backdrop that section 139 (1) of the Land Revenue Act does not bar jurisdiction of the civil court in respect of all the matters that may fall within the ambit of the Act but only the matters which a Revenue officer "is empowered" by the Act to "dispose of." It fallows that, if a matter though it has to do something with the Land Revenue Act cannot be disposed of by the Revenue officer, jurisdiction of the civil court is intact and not barred under section 139 of the Act. Section 139 (2) is only illustrative of the matters in respect of which civil court is required to keep its hands of and sub-section 2 is to be interpreted against the backdrop of the mandate of sub-section 1 of section 139. In other words section 139 sub-section 1 and 2 are to be read together and conjointly. The baseline is that even in respect of the matters enumerated in section 39 sub-section 2 clause (i) to (xxiv), the matter must be such as can be disposed of by Revenue Officer in terms of Land Revenue Act. 14. In other words section 139 sub-section 1 and 2 are to be read together and conjointly. The baseline is that even in respect of the matters enumerated in section 39 sub-section 2 clause (i) to (xxiv), the matter must be such as can be disposed of by Revenue Officer in terms of Land Revenue Act. 14. A reference to law laid down in following two reported cases shall be of immense help in understanding the principles that must guide the court when a plea of bar of jurisdiction is raised by the defendant in a suit. 15. In Mumtaza Begum v. Amanullah Khan and others, AIR 1964 J&K 34 it has been held: "The mere inclusion of a claim for partition of agricultural land, which is cognizable by a revenue court under section S. 139 (2) (xvii), in a suit for declaration of title to a share in the land in question, will not oust the jurisdiction of the Civil Court to take cognizance of the suit. In such a case the civil court has to follow the procedure laid down under O.20, Rule 18 CPC. The language of S.111 -- A of the Land Revenue Act itself suggests that where any question of title is involved in any matter relating to partition of land it has to be determined by a court of competent jurisdiction. Even if the partitioning Revenue Officer inquires into the matter himself, the matter has to be tried as a regular suit. It may be remarked that S. 139(2) (xvii) makes mention of a claim simpliciter and does not apparently cover cases where more contested questions of title are involved. Although the provisions of S. 139(2)(xvii) J&K Land Revenue Act and O.20.R. 18(1) of Civil P.C. appear to be conflicting, they are in fact complementary and supplementary to each other. The Civil Court’s function is to adjudicate the shares and having done so, the revenue court’s function is to effect actual partition. In this view of the matter it cannot be said that the suit as framed by the plaintiff including a relief for partition is not cognizable by the civil court. The Civil Court’s function is to adjudicate the shares and having done so, the revenue court’s function is to effect actual partition. In this view of the matter it cannot be said that the suit as framed by the plaintiff including a relief for partition is not cognizable by the civil court. If the plaintiff succeeds in the suit, the Civil Court will adjudicate upon the rights of the plaintiff, determine her share, pass a decree for possession of her share and after doing that direct the Collector or any gazetted subordinate of his to effect the actual partition of the land in terms of O.20. Rule 18(1) and particularly in consonance with the provisions of S. 139(2)(xvii) of the Land Revenue Act AIR 1964 J&K 34 (DB)." 16. In State v. Shri Isher Dass Charak, AIR 1973 J&K 17 , a Full Bench of J&K High Court held that suit by a tenant complaining dispossession by a stranger or a trespasser was triable by a civil court and not in terms of section 56 of J&K Tenancy Act by the revenue court. It needs to be pointed out that even in a suit by a tenant against a stranger or a trespasser the tenant has to prove his rights under J&K Tenancy Act or in other words the status of his being the "tenant" and the issues likely to crop up in such a suit shall have much to do with the Tenancy Act yet it is the civil court that has jurisdiction, because the Revenue officer is not empowered to dispose of the matter under the Tenancy Act. 17. The trial court as well as first appellate court lost sight of the content, composition and chemistry of the suit filed by the petitioners. The petitioners complained inter alia that the construction was being raised unauthorizedly on the suit land and a partition forced on the petitioners. The Revenue officer is not empowered under the Act to deal with such a kind of dispute or grant or decline grant of injunctive relief. Again the controversy projected before the trial court involved questions of validity of the documents execution whereof was attributed by the parties to each other, the validity of the gifts, questions of estoppel and even a veiled plea of adverse possession sought to be set up by the respondents. Again the controversy projected before the trial court involved questions of validity of the documents execution whereof was attributed by the parties to each other, the validity of the gifts, questions of estoppel and even a veiled plea of adverse possession sought to be set up by the respondents. It was thus not open to the trial court and the first appellate court to employ section 139 J&K Land Revenue Act that too at the threshold stage, to throw out the petitioners’ case. It is a settled law that the exclusion of the jurisdiction of the civil court is not to be readily inferred. The course open to the trial court, in the facts and circumstances of the case, was to allow the parties to complete the proceedings to settle an issue and thereafter return a finding thereof. 18. For the reasons discussed above the trial court and the Ist. Appellate court have exercised their jurisdiction with material irregularity resulting in failure of justice. Resultantly the Revision Petition is accepted and the order dated 30/05/2009 passed by the court of District Judge, Islamabad, set aside. The trial court is directed to hear and dispose of the matter a fresh preferably within two weeks from the date the matter is taken up for hearing by the trial court. Till the matter is so disposed of, the parties shall maintain status quo on spot. 19. The parties shall appear before the trial court on June 28, 2010.