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2018 DIGILAW 202 (JK)

Nek Ram v. Parkash Chand

2018-04-03

SANJEEV KUMAR

body2018
JUDGMENT : Sanjeev Kumar, J. This revision petition is directed against the order dated 11.02.2015 passed by Learned Munsiff, Billawar whereby the preliminary issue raised in the suit has been decided in favour of respondent No.1 and against the petitioner. 2. Briefly stated, the facts leading to the filing of this revision petition are; respondent has filed a suit for mandatory injunction for directing the petitioner herein and proforma respondent to remove the blockade or obstruction from the pathway measuring 11 feet in width existing on the land comprised in Khasra No.429 of village Dewal. In the suit, respondent No.1 has claimed that he along with the petitioner and the proforma respondent are joint owners in possession of the land bearing Khasra Nos.429 & 432 of village Dewal, Tehsil Billawar since the time of their forefathers and that there is in existence a common pathway which was left by their forefathers for connecting their houses to a Bandobasti Gali situated in the western side of their residential house. It is also alleged in the plaint that the petitioner and the proforma respondent are encroaching upon the aforesaid pathway by damaging it and its fencing. It is also claimed by respondent No.1 in the plaint that he had approached Tehsildar, Billawar with his grievance but learned Tehsildar refused to provide him any relief on the plea that the obstructed portion of the pathway was existing on the proprietary land of the parties. 3. On being put on notice in the suit, the petitioner and the proforma respondent filed their written statement and, inter alia, raised a preliminary objection with regard to the maintainability of the suit in view of the provisions of Jammu and Kashmir Common Lands (Regulation) Act, 1956 (herein after called "the Act" for short). On the basis of pleadings of the parties, the trial Court framed the following preliminary issue for adjudication in the first instance, "whether the controversy raised by the plaintiff falls under Common Lands (Regulation) Act, 1956 and thereby this Court lacks jurisdiction to hear and try this suit." 4. After considering the arguments of learned counsel for the parties, the trial Court decided the issue in favour of respondent No.1 and against the petitioner and the proforma respondent. After considering the arguments of learned counsel for the parties, the trial Court decided the issue in favour of respondent No.1 and against the petitioner and the proforma respondent. Referring to provisions of Section 3 of the Act, the trial Court concluded that subject pathway was not a common land as envisaged under section 3 of the Act and therefore, the jurisdiction of the Civil Court was not ousted. The contention of the petitioner that the suit pathway was in existence since the time of their forefathers and, thus obviously, the petitioner and the respondents had been continuously exercising their right for one year prior to the commencement of Jammu and Kashmir Common Lands (Regulation) Ordinance, 1956, did not find favour with the trial Court. 5. Before this Court also, the petitioner has reiterated the arguments which he had urged before the trial Court. He would further submit that in view of the bar created by section 16 of the Act, no proceedings or order taken or made under the Act can be called in question in any Court or before any officer or authority. 6. Before I deal with the submissions made by learned counsel for the petitioner, it would be appropriate to set out the relevant provisions of the Act. Section 3 and 16 of the Act reads as under: "3. Exercise of right over pathways and places used for common or public purposes (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, and notwithstanding any agreement, custom or usage or any decree or order of any Court or other authority, every inhabitant of a village shall exercise the right of user in respect of any road, street, lane, path, channel, drain, well, tank or any source of water-supply in a village including the village of which he is not an inhabitant: Provided that such right was exercised by such inhabitant or any of his predecessors-in-title for one year continuously at any time prior to the commencement of Jammu and Kashmir Common Lands, (Regulation) Ordinance, 1956 (VII of 1956). 16. 16. Bar of jurisdiction Save as otherwise expressly provided in this Act, every order made by the Revenue Officer, Divisional Commissioner or Financial Commissioner and every award or order made by the Collector shall be final and no proceedings or order taken or made under this Act shall be called in question by any Court or before any officer or authority." 7. From the perusal of Section 3, it is manifestly clear that the right of user of every inhabitant of the village in respect of any road, street, lane, pathway, etc, etc, is protected subject to the condition that such right was exercised by such inhabitant or any of his predecessors-in-title for one year continuously at any time prior to the commencement of Jammu and Kashmir Common Lands (Regulation) Ordinance, 1956. Section 3 of the Act, therefore, confers right of user over common land of the village like road, street, lane, pathway, channel, drain, etc, etc. The exercise of this right, however, is subject to it being exercised by the inhabitants continuously for one year at any time prior to the commencement of the aforesaid ordinance. Although, there are no clear pleadings to indicate as to whether or not the petitioner and the respondent were using this pathway and had done so, continuously for one year at any time prior to the commencement of the ordinance except an averment in the plaint that this pathway is in existence from the time of their forefathers. Without dilating much on the issue, and going by the averments made in the plaint, it is abundantly clear that the subject pathway is not the one over which every Inhabitant has been exercising the right of user. The subject pathway is a private property of the petitioner and the respondents which had been left out by their forefathers for having access to a nearby Bandobasti Gali. It is because of this reason only, the Tehsildar appears to have declined to interfere under the provisions of the Act. The observation of the trial Court that the subject pathway is not such as would fall within the ambit of Section 3 cannot be found fault with. The right of user of the suit pathway, therefore, does not arise under any of the provisions of the Act. 8. That being so, the bar of jurisdiction envisaged under section 16 of the Act would not be attracted. The right of user of the suit pathway, therefore, does not arise under any of the provisions of the Act. 8. That being so, the bar of jurisdiction envisaged under section 16 of the Act would not be attracted. Otherwise also, having regard to the provisions of Section 16, the jurisdiction of the Civil Court is barred only with respect to proceedings or order taken or made under the Act. In the instant case, there are no proceedings taken or order made by any authority under the Act. For this reason also, the argument of the learned counsel for the petitioner must fail. 9. In view of the aforesaid analysis, this Court does not find any infirmity or illegality in the order impugned. Consequently, the revision petition fails and is accordingly dismissed.