Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 345 (JK)

Mohd. Abdullah Shah v. Mohd. Amin Shah

2014-08-14

MOHAMMAD YAQOOB MIR

body2014
1. Instant revision petition is directed against the order dated 03.07.2013, passed by the Court of Munsiff, Shopian, where-under three preliminary issues have been decided. 2. For appreciating the matter in its right perspective, it shall be advantageous to precisely notice the factual matrix: (I) The respondents No.1 and 2 (hereinafter referred to as the plaintiffs), have filed a suit for declaration for declaring the surrender deed, executed by Mst. Taja-respondent No.3 herein(hereafter referred to as the defendant No.2), in favour revisionist (hereinafter referred to as the defendant No.1) dated 05.03.2011 registered on 07.03.2011 vis-a-vis land falling under Khewat Nos.18-Min, 19-Min and 22 of village Nazneenpora, to be fraudulent, in-effective and null and void (II) According to the plaintiffs, the suit land was left behind by Mst. Syeda (Khana-Nisheen daughter of Mohammad Abdullah Shah). She is survived by two daughters, namely, Mst. Ateeqa, Mst. Taja and one son, namely, Mohammad Abdullah. Mst. Ateeqa was married as Khana-Nisheen daughter and Mst. Taja was married Khana Beeron. It being so, Mst. Taja is not entitled to the said land, therefore, she had no right to execute the surrender deed in favour of defendant No.1. (III) In the written statement as filed by defendants it has been stated that Mst. Taja is legal heir of deceased Syed Begum, plaintiffs illegally got mutations under Section 4 and 8 of Agrarian Reforms Act attested in their favour wherein their mother has been shown as ex-owner and plaintiffs as tenants which is inconsistent with the provisions of Agrarian Reforms Act, as such, unwarranted. The said two mutations already stand challenged before competent Agrarian authorities. (IV) On the basis of respective pleadings of the parties, trial court has framed as many as 11 issues. Issues No.7 to 9 have been treated as preliminary issues, same have been decided vide order impugned. 3. Before adverting to the legality or otherwise of the order impugned, it shall be quite appropriate to mention that the trial court has not adhered to Order X Rule 1A. Order X Rule 1A reads as under: "1A. Direction of the court to opt for any one mode of alternative dispute resolution- After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of section 89. Order X Rule 1A reads as under: "1A. Direction of the court to opt for any one mode of alternative dispute resolution- After recording the admissions and denials, the Court shall direct the parties to the suit to opt either mode of the settlement outside the Court as specified in sub-section (1) of section 89. On the option of the parties, the Court shall fix the date of appearance before such forum or authority as may be opted by the parties". The aforesaid provision would provide that when written statement is filed, the trial court is required to consider the case for being referred to one of the modes of alternate dispute resolution. Either trial court has been ignorant about the said procedure or has not taken the matter seriously, which is not appreciated. Though in the subsequent proceedings matter has been referred to Lok Adalat but without success as is apparent from the interim orders recorded from time to time. Be that as it is, the requirement of following Order X Rule 1A has been casualty. 4. Now adverting to the legality or otherwise of the order impugned, the trial court has committed a grave error while deciding the preliminary issues which position is evident from the findings returned. 5. Issue No.7 reads as under: "Whether the court has no jurisdiction to try the present suit in present form? (OPD) Trial court after referring to arguments of the parties and other details pertaining to the position of customary marriage as Khana Nisheen and Khana Beeron has concluded as under: "This issue can only be decided after a full dress trial after parties are given an opportunity to project their case with regard to the pleadings and claim. Whether plaintiffs are claiming their right over the suit land on the basis of custom or otherwise will be decided after a full dress trial". In view of said finding trial court should not have recorded that this issue is decided in favour of plaintiffs and against the defendants, instead should have recorded that this issue will also be decided along with other issues as being a mixed question of fact and law. 6. Another preliminary issue i.e. issue No.8 reads as under: "Whether plaintiff has no cause of action to file the present suit?(OPD) Trial court has opined that the plaintiff has a cause of action. 6. Another preliminary issue i.e. issue No.8 reads as under: "Whether plaintiff has no cause of action to file the present suit?(OPD) Trial court has opined that the plaintiff has a cause of action. Bundle of facts give rise to cause of action, thus cause of action, in view of the pleadings of the parties, involves determination of question of fact, it gives rise to a mixed question of law and fact, therefore, it should have been left to be decided along with other issues after a full dress trial. 7. Issue No.9, also treated as preliminary issue, reads as under: "Whether plaintiff in league with Revenue official got two mutation order under Section 4 & 8 of Agrarian Reforms Act with regard to land mentioned in suit in favour of his mother?(OPD) Finding on this issue has been deferred and left to be determined by the authorities under Agrarian Reforms Act. 8. Trial court has not appreciated the matter properly as referred to hereinabove. Therefore, order impugned is set aside. 9. Since the issues have been framed, plaintiffs are leading evidence, they shall lead the evidence with promptitude. The trial of the case shall be expedited by scheduling it fortnightly. The parties shall extend full cooperation so that the progress of the suit is not hampered. 10. Revision, accordingly, succeeds, as such, shall stand disposed of along with connected CMP. 11. Trial court record be sent back along with copy of this order forthwith so as to reach to the trial court by or before next date which is fixed on 28th August, 2014. Learned counsel for the parties or the parties shall appear before the trial court on the date fixed.