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2015 DIGILAW 702 (JK)

Subash Chander Sharma v. Shilpi Mahajan

2015-12-30

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. Caveat No. 1968/2015 1. With the appearance of counsel for the respondents, caveat lodged shall stand discharged. C2A No. 26/2015 Heard the learned counsel for the parties. 2. Substantial question of law which arises for determination is as under: "Whether plaint could be rejected on the ground that it did not disclose cause of action" Or "The institution of the plaint was barred by Section 25 of the Agrarian Reforms Act, 1976" 3. Appellants (hereinafter referred to as plaintiffs) had filed the suit for cancellation and declaring the sale deeds executed by respondents No. 2 to 4 in favour of respondent No. 1 (hereinafter referred to as defendants) as null and void, in operative, non est in the eyes of the law. 4. The admitted position as emerge from the records and the submission of the learned counsel for the parties is that defendants No. 2 to 4 were declared owners of the land under Section 8 of the Agrarian Reforms Act (hereinafter referred to as Act'). After having become the owners by dint of the operation of the Act, they have executed the following sale deeds: "(i) Sale Deed dated 22.03.2010, registered on 25.03.2010 pertaining to land measuring 4 kanal falling under Khasra No. 1030 min, Khewat No. 8, Khata No. 794/787 min, (ii) Sale Deed dated 22.03.2010 registered on 25.03.2010 pertaining to total land measuring 3 kanal and 9 marlas, i.e. land measuring 2 kanal, 16 marlas falling under Khasra No. 1025 min, and 13 marlas falling under Khasra No. 1027, Khewat No. 8, (iii) Sale deed dated 27.03.2010, registered on 27.03.2010 pertaining to total land measuring 4 kanal i.e. 1 kanal, 8 marlas falling under Khasra No. 1036 min, 2 kanal and 12 marlas falling under Khasra No. 1025 min, Khewat No. 8, (iv) Sale Deed dated 27.03.2010, registered on 27.03.2010 pertaining to land measuring 4 kanal falling under Khasra No. 1028 min, Khewat No. 4, Khata No. 500/503 min, (v) Sale deed dated 29.03.2010, registered on 29.03.2010 pertaining to land measuring 4 kanal falling under Khasra No. 1026 min, Khewat No. 8, Khata No. 737/735/695 min, (vi) Sale deed dated 29.03.2010, registered on 29.03.2010 pertaining to total land measuring 4 kanal i.e. 2 kanal, 15 marlas falling under Khasra No. 1028 min, 1 kanal and 5 marlas falling under Khasra No. 1030 min, Khewat No. 4, Khata No. 500/503." 5. Plaintiffs claimed themselves to be social activists have in representative capacity filed the suit before the Court of Sub Judge (City Judge Jammu) alleging in the plaint that the land falling under Khasra Nos. 1025, 1026, 1027, 1028, 1030, 1036 and 1037 has been mutated under Section 8 of the Act in favour of the defendants 2 to 4 vide mutation No. 2232 dated 20.01.1983. Once they had become the owners of the land in terms of Section 8 of the Act, they could not sell the same in view of Section 28(A) of the Act. 6. Defendants filed the application under Order VII Rule 11CPC stating therein that the plaintiffs have no cause of action nor they have any interest in the suit property, therefore, the plaint shall be rejected as is permissible under Order VII Rule 11(c) of the Code of Civil Procedure. 7. Learned trial court accepted the application and rejected the plaint. Civil 1st Appeal filed before the Appellate Court met the same fate i.e. the appeal has been dismissed by the learned District Judge Jammu vide his detailed judgment dated 16.11.2015. 8. Aggrieved thereof, instant Civil 2nd Appeal has been filed. Firstly, the question as should have been decided is as to whether plaint could at all be entertained for want of jurisdiction. Sale by the defendants 2 to 4 in favour of defendant No. 1 of the land regarding which they had acquired the ownership under Section 8 of the Act is essentially a matter to be dealt with under Section 28-A of the Act by the authorities under the Act. Section 28-A of the Agrarian Reforms Act is quoted hereinbelow: "28-A. Prohibition on transfer of certain lands (1) No person who is vested with ownership rights in land under this Act shall transfer such land or rights therein in any manner whatsoever to any person other than the Government of Jammu and Kashmir: Provided that such owner shall have the right to transfer land in the form of simple mortgage subject to the provisions of the Alienation of Land Act, Samvat 1995 for securing loan for purposes of improvement of the land. (2) Any transfer of land or rights therein made in contravention of sub-section (1) shall be null and void. (2) Any transfer of land or rights therein made in contravention of sub-section (1) shall be null and void. The person who has contravened the provisions of sub-section (1) shall after being given an opportunity of being heard, be dispossessed of such land by a Revenue Officer not below the rank of Tehsildar and the land shall vest in the State and shall be disposed of in accordance with the provisions of Section 15". 9. Dispute arose out of the Act so has to be dealt with by the authorities under the Act. Such disputes cannot be adjudicated upon by the civil courts, as is enjoined by Section 25 of the Act which is advantageous to be quoted hereinunder: "25. Bar of jurisdiction of Civil Court Notwithstanding anything contained in any law for the time being in force- (a) no Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter arising under this Act or the rules made thereunder; and (b) no order of any officer or authority passed under this Act or the rules made thereunder shall be called in question in any Civil Court". 10. Whether the sale of the land which falls within the ambit of the provisions of the Act can be called in question before the civil court is clearly answered by Section 25 of the Act. The dispute essentially relates to the alleged violation rather contravention of Section 28(A) of the Act. For such a contravention, mode and method is prescribed by the Act itself. When it is so, trial Court could not entertain the plaint. The plaint should have been rejected by invoking powers under Order VII Rule 11(d) of the CPC. Said clause (d) is apt to be quoted: "Order VII Rule 11: Rejection of plaint. The plaint shall be rejected in the following cases:- (a) .... (b) .... (c) .... (d) where the suit appears from the statement in the plaint to be barred by any law." 11. A cursory look on the allegations as contained in the plaint clearly suggests that the dispute pertained to the land arises out of the Agrarian Reform Act regarding which civil court's jurisdiction is barred in view of Section 25 of the Act as quoted above. Therefore, the plaint should have been rejected out-rightly on the same ground. 12. A cursory look on the allegations as contained in the plaint clearly suggests that the dispute pertained to the land arises out of the Agrarian Reform Act regarding which civil court's jurisdiction is barred in view of Section 25 of the Act as quoted above. Therefore, the plaint should have been rejected out-rightly on the same ground. 12. The question as to whether the plaintiffs had cause of action or not in view of aforestated position of the law and the conclusion drawn thereon is not required to be looked into. The aspect of bar of jurisdiction has escaped the attention of the learned trial Court as well as of the appellate court otherwise plaint would have been rejected on the point of jurisdiction. 13. The word 'cause of action' as employed takes into its sweep the bundle of facts and circumstances and at times may give rise to mixed question of fact and law. It being so, the question is left undetermined. More particularly, in view of finding that the institution of the plaint was barred by Section 25 of the Act. 14. For the reasons and facts as stated hereinabove, the institution of the suit in the civil court being barred by Section 25 of the Act, therefore, Trial Court had no jurisdiction to entertain the suit, so the plaint should have been rejected under Order VII Rule 11(d) CPC. Viewed thus, appeal succeeds. Both the judgment of the trial court as well as of the appellate court is modified i.e. the plaint is rejected under Order VII Rule 11(d) CPC. Decree be drawn up accordingly. Copy whereof be sent to Trial as well as Appellate Court for information.