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2018 DIGILAW 567 (JK)

Bhola Ram v. Santosh Kumari

2018-07-27

SANJEEV KUMAR

body2018
JUDGMENT : 1. This Civil Second Appeal is directed against the judgment and decree dated 19.04.2018 passed by the Additional District Judge, Rajouri (hereinafter referred to as the ‘1st Appellate Court’) in Civil 1st Appeal No. 8/2013 titled Bhola Ram and Another vs. Santosh Kumari and Others by virtue of which the 1st Appellate Court has upheld the judgment and decree dated 13.12.2012 passed by the Sub Judge Nowshera (for short ‘trial Court’). 2. Briefly stated, the facts as narrated in the memo of appeal which are otherwise gatherable from the judgments of both the Courts below are that respondent Nos. 1 & 2 herein filed a civil suit for permanent prohibitory injunction in the trial Court against the appellants and the proforma respondents alleging therein that they are in cultivating possession of the land measuring 26 kanals comprised in khasra no. 1180 min, 1181 min, 1190 and 1192 situated at village Rajal, Tehsil Nowshera since Rabbi 2005. It was pleaded by respondent Nos. 1 & 2 in the suit that their mother was in possession of the suit land under Section 3-A of the Agrarian Reforms Act and after her death, they came in exclusive possession of the suit land. It was also pleaded by respondent Nos. 1 and 2 that they had planted trees in the suit land. It was also claimed that the appellants and proforma respondents having no right, title or interest over the suit land were unnecessarily interfering in their possession who wanted to damage the trees and also raise construction over the suit property. This was the pith and substance of the suit filed by respondent Nos. 1 and 2 against the appellants and proforma respondents. 3. The appellants contested the aforesaid suit and claimed that the suit land was actually in possession of appellant No. 1 and his son. It was also pleaded in the written statement that the khasra girdwari on which respondent Nos. 1 and 2 had placed reliance was contrary to the spot position. It was claimed that the aforesaid girdawari depicting the possession of respondent Nos. 1 and 2 over the suit property had been challenged before the revenue authorities. 4. The suit was tried on the issues framed by the trial Court and on the basis of evidence, the trial Court decreed the suit in favour of respondent Nos. It was claimed that the aforesaid girdawari depicting the possession of respondent Nos. 1 and 2 over the suit property had been challenged before the revenue authorities. 4. The suit was tried on the issues framed by the trial Court and on the basis of evidence, the trial Court decreed the suit in favour of respondent Nos. 1 and 2 and against the appellants and proforma respondents. The appellants and proforma respondents were permanently restrained from interfering in the suit land and also dispossessing respondent Nos. 1 and 2 from the suit land. The judgment and decree dated 13.12.2012 passed by the trial Court was called in question before the 1st Appellate Court. The 1st Appellate Court concurred with the findings of fact recorded by the trial Court and accordingly, dismissed the appeal. This is how the appellants are before this Court by way of Civil Second Appeal. 5. On this appeal coming up for consideration, learned counsel for the appellants was specifically asked as to what are the substantial questions of law involved in this matter. In response, he drew the attention of this Court to ground-(d) of the memorandum of appeal. 6. Having heard learned counsel for the appellants and perused the record, I am of the view that both the Courts below have returned concurrent findings of fact on proper appreciation of evidence and, therefore, no interference in the judgment and decree impugned is called for. 7. The substantial questions of law proposed by the appellants and reproduced in ground-(d) do not arise in the instant appeal. The concurrent findings of fact returned by the both the Courts below that respondent Nos. 1 and 2 are in cultivating possession of the suit land cannot, by any stretch of reasoning, be said to be perverse. There is ample evidence, oral as well as documentary, on record, on the appreciation of which, both the Courts below have come to the aforesaid conclusion of fact. 8. The contention of learned counsel for the appellants that since the land subject matter of the suit was land “as defined under the Agrarian Reforms Act’’ and therefore, the civil court had no jurisdiction to entertain the suit. In support of his submission, he placed reliance upon the Full Bench decision of this Court rendered in the case of Jagtu vs. Badri and Others, 1979 SLJ 6. 9. In support of his submission, he placed reliance upon the Full Bench decision of this Court rendered in the case of Jagtu vs. Badri and Others, 1979 SLJ 6. 9. It is urged by the learned counsel for the appellant that since both the parties were claiming to be in possession of the suit land, as such, it was essentially a dispute of possession and, therefore, could not have been adjudicated upon by the civil Court. The proposition put forth by the learned counsel for the appellants, I am afraid, is contrary to what was held by the Full Bench of this Court in the case of Jagtu (supra), reliance whereupon has been placed by learned counsel for the appellants. 10. Without discussing elaborately the issue of jurisdiction of civil Court vis-à-vis the Forums created under the Agrarian Reforms Act, it would be sufficient to refer para No. 24 of the Full Bench decision in Jagtu’s case (supra) which, for facility of reference, is reproduced hereunder: “As already stated all disputes relating to the possession of the land whether principally or collaterally, or incidentally involved are required to be decided under the Act. Two cases of the same nature ca, however, be distinguished. Take the case where A sues for permanent injunction in respect of the land against B with the allegation that B without any right or reason is interfering with his possession. B raises the plea that he was the tenant of the land and was being wrongfully dispossessed by A and that that he wants to re-occupy the land, or he disputes the right of ownership of the plaintiff in the land. Then in that case, the suit is cognizable by the Revenue Officer. But take the case where A in peaceful and personal cultivation of the suit land as an owner thereof is threatened by a wayfarer who has got no right in the land to dispossess him. Here the dispute does not call for any decision under the Act. The suit is cognizable by the civil court.” 11. Admittedly, the instant suit falls in the category where an owner in possession of suit property is threatened of dispossession by a wayfarer or stranger who has got no right in the suit land. Here the dispute does not call for any decision under the Act. The suit is cognizable by the civil court.” 11. Admittedly, the instant suit falls in the category where an owner in possession of suit property is threatened of dispossession by a wayfarer or stranger who has got no right in the suit land. In such suit, it is not the right to possession that is under determination, but it is the factum of possession which needs to be determined for granting the decree of permanent prohibitory injunction. 12. In light of the categtoric position of law laid down by the Full Bench in Jagtu’s case (supra), it cannot be said that the suit from which the second appeal has arisen was not cognizable by a civil Court. Having held thus, it cannot be said that the question of jurisdiction raised by the appellants, in any manner, is a substantial question of law that needs to be determined in this appeal. 13. In view of the aforesaid, I do not find any substantial question involved in this appeal for adjudication. Consequently, the present appeal is dismissed along with connected IA.