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2012 DIGILAW 220 (JK)

Harbans Lal and Ors. v. Dawarka Nath and Ors.

2012-05-07

MUZAFFAR HUSSAIN ATTAR

body2012
Respondents-plaintiffs instituted a civil original suit against the present petitioners-defendants in the court of learned Munsiff, Kathua. Respondents- plaintiffs prayed for issuance of decree of declaration declaring them to be owners in possession of land covered by Khasra No. 931/754 measuring 7 kanal 9 marlas and Khasra No. 930/755 measuring 14 kanal 11 marla. They also prayed for issuance of decree of declaration, declaring sale deeds executed by defendant No. 1 through attorney to be illegal and not binding on the respondents-plaintiffs. It was also prayed that respondents-plaintiffs be declared to be owners in possession of the land on the doctrine of adverse possession. Petitioners filed written statements in which one of the grounds raised was that the respondents-plaintiffs claim adverse possession with regard to suit land which is agriculture land and in view of the provisions of Section 19(e) of Agrarian Reforms Act, 1976, the suit is not maintainable, same being barred under Section 25 thereof. Learned trial court framed eight issues and issues 4 to 7 were treated as preliminary issues. Learned trial court, while placing reliance on the Full Bench Judgement of this Court, reported in 1980 KLJ (1), held that the question of adverse possession, injunction and the question as to whether suit land is a land as defined under the J&K Agrarian Reforms Act, 1976 (for short the Act of 1976) are the questions to be decided by the authority under the Act of 1976, however, retained the suit on its files for final disposal. Petitioners-defendants are aggrieved of the order of the learned trial Judge to the extent of retaining the suit on its files for final disposal. Learned counsel for the petitioners submitted that learned trial court after referring to the aforementioned judgment of this court and after holding that the question/issue of adverse possession, injunction and the question as to whether suit land is a land as defined under the Act of 1976 are the questions which are required to be decided the Collector/authority under the Act of 1976, instead of referring the issues to the Collector/authority under the Act of 1976, retained the suit on its files for final disposal. Learned counsel submitted that the order impugned passed by the learned trial court, in these circumstances, is illegal and retaining the suit on its files for its final disposal to the extent of aforementioned issues/questions is without jurisdiction. Learned counsel submitted that the order impugned passed by the learned trial court, in these circumstances, is illegal and retaining the suit on its files for its final disposal to the extent of aforementioned issues/questions is without jurisdiction. Learned counsel for the respondents, in his fairness, submitted that in view of the observations made by the learned trial court in the impugned order, the issues which are referred to in this order, were required to be formulated and referred to the Collector/authority under the Act of 1976 for their adjudication. Learned counsel submitted that trial court should proceed with the trial of the case after the finding/recommendation/report was received from the Collector/authority under the Act of 1976. Full Bench judgment of this Court reported in 1980 KLJ page 1 has, in unequivocal terms, laid down the law in respect of the issues/questions and has provided for the Forums for determining the issues/questions involved in a suit. The issues/questions as to whether suit land is a land as defined under the Act of 1976 and, if so, whether the plaintiffs can be declared to have become owners being in adverse possession of the land are the issues/questions which are required to be referred to the Collector/authority under the Act of 1976 in the first instance. For the above stated reasons this petition is disposed of along with all connected CMP(s) in the following manner: The order impugned to the extent it retains the entire suit on the files of learned trial court for its trial is set aside and the learned trial court is directed to formulate the issues/questions in respect of adverse possession and whether the land in question is a land as defined under the Act of 1976 and refer the matter to the Collector/authority under the Act of 1976. Learned trial court to retain the index on its files and await the report/recommendations/findings of the Collector/authority under the Act of 1976. Record be sent back to the trial court.