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2020 DIGILAW 479 (JK)

Nazir Hussain v. Mohd. Rashid

2020-09-14

VINOD CHATTERJI KOUL

body2020
ORDER The instant Civil 2nd Appeal has been filed against judgment and decree order dated 02.11.2019, passed by the learned District Judge, Poonch whereby while allowing the appeal, judgment and decree passed by the trial court i.e., Special Mobile Magistrate, Poonch has been set aside on the ground that the jurisdiction of the trial court to try and decide the suit was barred under the provisions of Section 25 of the Agrarian Reforms Act. 2. The grounds on which the judgment and decree has been challenged are that learned District Judge, Poonch has committed error by allowing the appeal and setting aside judgment and decree passed by the trial court. The defendants (respondents herein) were duly served in the suit but they took a false ground that they were not served and their signatures were forged. The jurisdiction of the civil court is barred only in respect of the disputes which are raised under the Agrarian Reforms Act, when a claim made is prior to 1971 and claim for adverse possession is made from Kharif 1971, only then jurisdiction of the civil court is barred. The Agrarian Reforms, Act was not applicable as the land in question is an ancestral property and the appellant and respondents were recorded as co-owners /co-sharers. The appellant has also filed an application/suit, after the decree and judgment, before the Revenue Authorities, but he is refusing the disposal of the same on the ground that he has no jurisdiction. 3. Briefly, stating the facts of the case are that the plaintiff and defendants are real brothers. Plaintiff filed a suit claiming that he is in possession of the same for the last more than 12 years and being in adverse possession he has become the owner, so his claim having become the owner is based upon his claim of adverse possession against the defendants. The trial court decreed the suit in ex-parte and passed the decree in favour of the plaintiff /appellant. 4. While passing the decree it has been observed by the trial court that defendants after being served filed their written statement and admitted the claim of the plaintiff where after they remained absent. The trial court after recording the evidence found that the plaintiff had succeeded in proving the suit, passed the decree and decreed the suit in favour of the plaintiff and against the defendants. The trial court after recording the evidence found that the plaintiff had succeeded in proving the suit, passed the decree and decreed the suit in favour of the plaintiff and against the defendants. Relevant portion of the decree is reproduced as under:- “As such, plaintiff is entitled to decree as has been prayed by him and accordingly decree of adverse possession is passed in favour of the plaintiff and against the defendants declaring the plaintiff as owner of the land measuring 21 Kanal 06 Sarsai out of Khasra No.786 (Il k 24 m), 790 (12 K 15 M), 766 ( 6 K 19 M), situated at village Bandi Chachian, Tehsil Haveli District| Poonch. Parties shall bear their own costs. Civil clerk is directed to prepare the decree sheet accordingly. File shall go to records after its due compilation.” 5. The respondents-defendants being aggrieved of the judgment and the decree passed by the trial court challenged the same before the 1st Appellate Court (District Judge), Poonch. The judgment and decree was challenged in appeal before the District Judge, Poonch on the ground that they were not served in the suit nor they had authorized anybody to appear and filed Vakilatnama on their behalf. Forged signatures were managed by the plaintiff on the Vakilatnama and on the written statement. They also challenged the judgment and decree passed by the trial court on the ground that the jurisdiction of the trial court was barred in view of the provisions contained under Section 25 of the Agrarian Reforms, Act. The claim of the plaintiff made in the suit is covered by clause (e) of Sub-subject 3 of Section 19 of the Agrarian Reforms, Act and to deal with the issue raised by the plaintiff and the relief claimed by him is trible by the Collector as per the provisions of the said Section. The trial court wrongly assumed the jurisdiction and passed the decree which being without jurisdiction, is required to be set aside. 6. The appeal was accepted by holding that the jurisdiction of the trial court try the suit was barred, in view of the provisions as contained in Section 19 (3) (e) of the Act and jurisdiction was barred under Section 25 of the Agrarian Reforms Act. 7. 6. The appeal was accepted by holding that the jurisdiction of the trial court try the suit was barred, in view of the provisions as contained in Section 19 (3) (e) of the Act and jurisdiction was barred under Section 25 of the Agrarian Reforms Act. 7. The appellant-plaintiff is aggrieved of the same and he has challenged the same in this appeal precisely on the ground that the land bearing Khasra No. 786 measuring 11 Kanal 17 Marlas, 700 measuring 12 Kanal 15 Marlas 766, measuring 06 Kanal 19 Marlas total measuring 31 Kanal 11 Marlas is situated at Village Bandi Chachian. Out of this land 21 Kanal 06 Sarsal was of respondents, upon which the petitioner is having possession for the last 12 years. Out of this land, land measuring 10 Kanal 10 Marlas, 3 Sarsai has fallen in the share of petitioner whereas land measuring 21 Kanal 06 Sarsai comes in the share of respondents. Thus, there is a partition of land in between the parties, however, on the whole land of respondents i.e., 21 Kanal 01 Sarsai situated at village Bandi Chachian petitioner is having possession without any interference. It is contended that the respondents appeared in the said suit and filed written statements admitting the right of the appellant of adverse possession. On 15.11.2017, the respondents did not choose to appear before the trial court and ultimately ex- parte decree was passed in favour of the appellant, after holding as under:- “As such, plaintiff is entitled to decree as has been prayed by him and accordingly decree of adverse possession is passed in favour of the plaintiff and against the defendants declaring the plaintiff as owner of the land measuring 21 kanal 06 Sarsal out of Khasra No. 786 ( 11K 24m), 790 (12 k 15 M, 766 ( 19 M), situated at village Bandi Chachian, Tehsil Haveli District, Poonch. Parties shall bear their own costs. Civil clerk is directed the decree sheet accordingly. File shall go to records after its due compilation.” 8. Heard learned counsel for the parties and perused the record on file. Parties shall bear their own costs. Civil clerk is directed the decree sheet accordingly. File shall go to records after its due compilation.” 8. Heard learned counsel for the parties and perused the record on file. Civil 2nd appeal is provided under section 100 of the Code of Civil Procedure and per the section 100 a appeal shall lie to the high court from every decree passed in appeal by any court subordinate to the high court, when the high court is satisfied that case involves substantial questions of law. Section 100 of CPC is reproduced as under:- “100. Second appeal: (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under the section from an appellate decree passed exparte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, nor formulated by it, if it is satisfied that the case involves such question.” 9. Plain reading of Subsection (1) of Section 100, CPC, enjoins that every decree of court subordinate to the High Court, is appealable before the High Court, but such should involve substantial question of law to the satisfaction of the High Court. When an appeal is preferred it should preciously state substantial question of law involved in the appeal and if the High Court is satisfied that a substantial question of law is involved, it shall formulate that question. When an appeal is preferred it should preciously state substantial question of law involved in the appeal and if the High Court is satisfied that a substantial question of law is involved, it shall formulate that question. Thus restrictive scheme of Section 100 couched in mandatory terms firstly casts a duty on the Court not to admit the appeals, which do not involve substantial questions of law, for, such an appeal is not provided for and secondly, it requires the admission order to speak about and spell out such substantial question and thirdly on that question the notice has to be issued to respondents, who are enable to show that such a question is neither a substantial question of law, nor arises in a given appeal, but further at that stage with leave of the Court, appellant is further enable to rely on any other substantial question of law which can form the part of debate at the final hearing stage. The scope of second appeal is very much circumscribed and the High Court is not entitled to go behind the findings of facts recorded by the courts below, unless and until illegality or manifest perversity or misconstruction of misreading is, successfully, pointed out, the High Court cannot interfere with the findings of facts of the courts below. 10. The legislature has not defined the term “substantial question of law”, though the expression has been used in the Constitution as well as in other statutes. The phrase, however, cannot be confined to a straight jacket and no rule of universal application can be formulated as to when it can be said that a substantial question of law has arisen. High Court can entertain a second appeal provided that it is satisfied that the case„involves a substantial question of law. The term “involves” suggests that such a question must arise in the case and it is necessary to decide it. The mere fact that the question is raised by the appellant in the appeal, is not enough and the High Court is not justified in entertaining the appeal. The term “involves” implies a considerable element of necessity. 11. The expression “substantial question of law”, sans any statutory definition, has become jurisprudentially vital with the afflux of time after it was contemplated by the Constitutional Bench of the Supreme Court of India in Chuni Lal V. Mehta and sons Ltd. Vs. The term “involves” implies a considerable element of necessity. 11. The expression “substantial question of law”, sans any statutory definition, has become jurisprudentially vital with the afflux of time after it was contemplated by the Constitutional Bench of the Supreme Court of India in Chuni Lal V. Mehta and sons Ltd. Vs. Centory SPG. And MFG. Co Ltd. ( AIR 1962 SC 1314 ). Reference to this expression is found in various provisions of law including Article 133 of the Constitution of India. But, in relation to Section 100 of the Code of Civil Procedure, this expression is sine qua non as Section 100 mandates the High Court to formulate a substantial question of law before allowing the 2nd Civil Appeal.[Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763 ]. 12. In Sir Chunilal V. Mehta and Sons Ltd. vs. Century Spinning and Manufacturing, AIR 1962 SC 1314 , the Constitution Bench of the Supreme Court has laid down the test to determine whether the question is substantial question of law or not. The test laid down by the Hon ble Supreme Court is as under: “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” 13. The appellant has not complied with sub-section 3 of Section 100 which requires that the memo of appeal shall precisely state the substantial question of law is involved in the appeal, however, in the appeal he has not stated as what are the substantial question of law involved in the appeal. 14. The appellant has not complied with sub-section 3 of Section 100 which requires that the memo of appeal shall precisely state the substantial question of law is involved in the appeal, however, in the appeal he has not stated as what are the substantial question of law involved in the appeal. 14. Now to find out as whether any substantial question of law is involved in this case which requires determination in the second appeal the facts of the case, judgments of the trial court and the 1st appellate court requires consideration. 15. The appellant-plaintiff who was the brother of the defendants claimed to be in possession of the share belonging to his brother for the period of more than 12 years and claiming that by being in adverse possession he has become owner of the land, and, accordingly sought decree to declare him as owner of the said piece of land. The suit was decreed in exp-parte and the ex- parte decree came to be challenged before the District Judge, Poonch and it was challenged on the ground that they were not served in the suit and decree was passed on their back and that the jurisdiction of the trial court was barred as the issue was covered by Section 19 of the Agrarian Reforms, Act and there was bar created by Section 25 of the Agrarian Reforms, Act. The trial court passed the decree without jurisdiction. 16. The learned District Judge, while dealing with the appeal has taken note of Section 19 and 25 of the Agrarian Reforms, Act as well as the claim made in the suit, held that the jurisdiction of the trial court was barred and the decree has been passed without jurisdiction and, accordingly, allowed the appeal and judgment and decree was set aside. 17. There is no dispute with the regard to the fact that the land in respect of which the suit was filed was land as defined under the Act. There is also no dispute with regard to the fact that the claim made by the plaintiff on the ground that he is in adverse possession of the suit property and thus has become owner of the same being in such possession for the last more than 12 years . 18. Section 19 of the J&K Agrarian Reforms Act, 1976 deals with the powers of the Revenue Officers. 18. Section 19 of the J&K Agrarian Reforms Act, 1976 deals with the powers of the Revenue Officers. It reads as under:- Section 19. “Powers of Revenue Officers (1) Unless the class of Revenue Officers, by whom any function is to be discharged or any power is to be exercised, is specified by or under this Act, the Government may, by notification, determine the functions to be discharged or the powers to be exercised under this Act by any class of Revenue Officers. (2) The manner and procedure for the performance of duties, the exercise and conferment of powers, distribution of business and withdrawal and transfer of cases under this Act shall, save as otherwise provided by or under this Act, be regulated by the Jammu and Kashmir Land Revenue Act, Samvat 1996 and the rules made thereunder. (3) The following applications, suits and proceedings shall be disposed of by a Collector: (a) proceedings under Section 56 of the Jammu and Kashmir Tenancy Act, Samvat 1980; (b) proceedings under Sub-section (2) of Section 68-A of the Jammu and Kashmir Tenancy Act, Samvat 1980; (c) proceedings under Section 24 of the Jammu and Kashmir Big Landed Estates Abolition Act, Samvat 2007; (d) application by an owner or an intermediary that the person, who claims to be cultivating the land as a tenant, is not a tenant but a trespasser; (e) all other cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediary. (4) Any application, suit or proceeding of the kind mentioned in Sub- section (3), pending at the commencement of this Act before a Revenue Officer subordinate to a Collector or any Civil or Revenue Court, shall be transferred to the Collector having jurisdiction in the place in which the land in dispute is situate. (5) Any application, suit or proceeding relating to cases specified in Clause (e) of Sub-section (3) which, immediately before the commencement of the Jammu and Kashmir Agrarian Reforms (Amendment) Act, 1988 were pending before any Civil Court, shall, on such commencement, stand transferred to the Collector having jurisdiction over the area in which the land in dispute is situate, and the Collector shall in his capacity as the appellate or revisional authority, as the case may be, dispose of the same in accordance with the provisions of this Act.” 19. It is clear from the provisions of Section 25 of the Act, that the jurisdiction of civil court is specifically barred to settle, decide or deal with any question or to determine any matter arising under this Act or the rules made there under. The matter in dispute which was to be settled by in the suit filed by the appellant was a dispute falling under clause (e) of sub-section (3) of Section 19 of the J&K Agrarian Reforms Act. The trial court by passing the decree has assumed the jurisdiction of Collector despite the bar in terms of Section 25 of the Act. The 1st Appellate Court has by allowing the appeal corrected the illegality committed by the trial court and rightly held that the trial court has passed the decree without jurisdiction. No fault can be found with the judgment and decree passed by the 1st Appellate Court. 20. There is no dispute/doubt with regard to the applicability of the Section 25 which bars the jurisdiction of the civil court in respect of the matters which are to be dealt with by the revenue officers in terms of Section 19 of the J&K Agrarian Reforms, Act. 21. The judgment and decree of the trial court has been set aside in the appeal by the District Judge, Poonch on the ground that the dispute relating between the parties was covered by Section 19 of the J&K Agrarian Reforms Act, 1976 and, therefore, jurisdiction of civil court was barred under Section 25 of the said act. There is no dispute with regard to the fact that Section 19 of Agrarian Reforms Act, deals with the powers of the Revenue Officers and as per clause (e) sub section 3 of section 19 all cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediately are trible by the Revenue Offices So the dispute raised by the plaintiff in the suit seeking declaration that he has become owner on account of being in adverse possession against the defendant falls within the jurisdiction Revenue Offices under Section 19 and is to be disposed of by a Collector. 22. Section 25 of the J&K Agrarian Reforms, Act creates bar with regard to the jurisdiction of the civil court to deal with the matters which are covered by section 19 of the Agrarian Reforms, Act. 23. 22. Section 25 of the J&K Agrarian Reforms, Act creates bar with regard to the jurisdiction of the civil court to deal with the matters which are covered by section 19 of the Agrarian Reforms, Act. 23. Section 25 of the Agrarian Reforms, Act reads as under:- 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. 24. Section 25 of the Agrarian Reforms Act, clearly ousts the jurisdiction of the civil court with regard to all those matters in respect of which powers are with the Revenue Officers under Section 19 of the Act and as per Section 19 (3) (e) “all other cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediary”, are to be disposed of by the Collector, thus the dispute being within the jurisdiction of the Collector as such, jurisdiction of the civil court is ousted. In this case the plaintiff had claimed adverse possession against the recorded owner, defendant (his brother) which dispute falls within the jurisdiction of the Collector who is the authority to decide such disputes. The order passed in the appeal has been challenged on the ground that the appellate court has wrongly held that the jurisdiction of the civil court was barred. However, the finding recorded by the appellate court that the dispute in question was covered under Section 19 (3) (e) and jurisdiction was barred under Section 25 is well reasoned and in accordance with the provisions of law. There is no doubt or dispute with regard to the interpretation and applicability of the provisions of Section 19 and 25 of the Agrarian Reforms, Act. 25. High Court can entertain an appeal where it is satisfied that the case involves “a substantial question of law” and the term “involves” suggests that such question must arise in a case and it is necessary to decide it. The term involves “implies a consideration element of necessity”. 26. 25. High Court can entertain an appeal where it is satisfied that the case involves “a substantial question of law” and the term “involves” suggests that such question must arise in a case and it is necessary to decide it. The term involves “implies a consideration element of necessity”. 26. In view of Section 100 CPC the expression substantial question of law is sign qua non, as it mandates the High Court to formulate a substantial question of law before allowing the civil second appeal. 27. The proper test for determining whether a question of law raised in the case is substantial would be whether such question is of general public importance or whether it directly and substantially affects the right of the parties or is not free from difficulty or calls for discussion of alternative views. 28. When the question is settled by the highest court or the general principles to be applied in determining the question well settled and there is a mere question on applying on these question or that the plea probably absurd the question would not be a substantial question of law. The question raised in this appeal with regard to the applicability of Section 19 (3) (e) and Section 25 of Agrarian Reforms Act which as per the appellant has been wrongly applied in this case when it was not applicable. 29. Admittedly, the appellant-plaintiff has filed a suit claiming adverse possession against the recorded owner who are his real brothers. Such claims as per the provisions of Section 19 (3) (e) of the Agrarian Reforms, Act are to be decided by the Collector and it is also clear that the jurisdiction of the civil court to deal with such matters is barred under Section 25 of the Agrarian Reforms, Act. There is no dispute or doubt regarding the applicability of these provisions of the Agrarian Reforms, Act. 30. Having regard what has been stated above, it is held that there is no substantial question of law involved in this case. The Appellate Court has rightly held that the trial court had passed the decree in the suit in violation of the provisions of Section 25 of the Agrarian Reforms, Act and the decree has been passed by the trial court without jurisdiction. The Appellate Court has rightly held that the trial court had passed the decree in the suit in violation of the provisions of Section 25 of the Agrarian Reforms, Act and the decree has been passed by the trial court without jurisdiction. The jurisdiction of the civil court was barred in view of the provisions contained under Section 25 of the Agrarian Reforms, Act. 31. Since, there is no substantial question of law involved in this case, as such, appeal is dismissed.