Babu Din v. Dharam Paul & Ors.

Judgment

1. The instant civil revision petition filed under Section 115 of the Code of Civil Procedure read with Article 227 of the Constitution of India is directed against the order dated 3rd of May, 2021 (for brevity ‘impugned order’) passed by Sub-Judge, CJM, Samba (for brevity ‘Trial Court’) in civil suit titled Dharampal & Others v. Babu Din, whereby the preliminary issue raised by the petitioner/defendant regarding jurisdiction of the Court stands rejected. 2. Briefly stated, the facts leading to the filing of this civil revision petition are that the respondents/plaintiffs have filed a Civil Suit titled Dharampal and others v. Babu Din for permanent prohibitory injunction in respect of land falling under Khasra No.456/1 measuring 38 Kanals 12 Marlas situated at Village Meen Sarkar Tehsil Bari Brahmana

District Samba. The petitioner/defendant filed his written statement denying the possession of respondents/plaintiffs over the said land on the ground that the petitioner/ defendant is in possession thereof for last more than 15 years and that the Trial court has no jurisdiction to try the suit as the question of 2 CM(M) 24/2022 possession of agriculture land is involved. Subsequently, coming to knowledge that the respondents/plaintiffs, who are locals, are not allottees of the land in question, the petitioner/defendant filed an application for amendment of his written statement. The petitioner/defendant filed his written statement along with the copy of report of Patwari dated 24.07.2017, authenticated by Naib Tehsildar on 27.07.2017, on the basis whereof possession of the petitioner/defendant over the land in question is stated to have been proved. 3. Mr. Qazi, arguing counsel for the petitioner, submits that Behari Lal, father of respondents/plaintiffs, had never applied for allotment of suit land bearing Khasra No. 683 (old) of Village Meen Sarkar, according to the provisions of Govt. Order No. LB-7/C of 1958, as the filing of application for allotment in prescribed proforma and affidavit before the Tehsildar/Deputy Commissioner was mandatory. It is stated that the suit land was continuously recorded in the name of Juma S/o Nashri Gujjar before and after the year 1947 up to the year 1971 as per record of Register Khasra Girdawari and Jamabandi for the year 1958, name of Behari Lal was entered in the Register Khasra Girdawari through Patwari for the first time in the year 1971. Barkat Bibi D/o Juma S/o Nashri Gujjar, who was occupant of Khasra no. 683 (old) of village Meen Sarkar filed a claim before Custodian Evacuee Property, Jammu, for restoration of the said land and, accordingly, the said land was declared and notified as Evacuee Property by the Custodian and was restored in favour of the Barkat Bibi vide order dated

02.02.1980, and possession was handed over to her. Thereafter, father of respondent, namely, Behari Lal, challenged the aforesaid possession order (supra) before the concerned authorities and finally the litigation concluded by the judgment of a Division Bench of this Court dated 8th February, 2005, rejecting the claim of Barkat Bibi on the ground that the said land was not an Evacuee Property, but a State Land. It was further held that petitioner/ defendant had no right to occupy the land as successor-in-interest of Juma after the mutation of inheritance attested in her favour and possession had to 3 CM(M) 24/2022 be restored back to the persons, from whom it was taken, viz. the predecessor-in-interest of private respondents.

4. It is contended that the respondents/plaintiffs and their father remained out of possession of suit land for a long period of 26 years because Behari Lal was not holding any title or ownership in suit land falling under Khasra No.683 (old), at the time when Barkat Bibi had got possession nor holding any legal allotment from competent Authority under Govt. Order No.LB-7/C of 1958, therefore, the mere entry in the Register Khasra Girdawari in the year 1971 or 1980 with respect to the suit land, does not confer ownership rights nor is any allotment inheritable right. The claim of allotment alleged by respondents/plaintiffs under Govt. order LB-7-C of 1958 is fake and baseless.

5. It is further contended that the respondents/plaintiffs and their father never produced any allotment order before the then Financial Commissioner or upon remand order before the Deputy Commissioner, Jammu, in the year 1983, thereafter before J&K Special Tribunal or before this Court except making oral claim of allotment.

6. The respondents/plaintiffs have filed a suit before the Trial court for permanent prohibitory injunction for restraining the petitioner/ defendant from interfering in, forcibly occupying or dispossessing them from land measuring 38 kanals 12 marlas falling under khasra No. 456/1 situated at Meen Sarkar Tehsil Bari Brahmana District Samba.

7. In the above said suit, Trial Court (CJM) Samba vide order dated 15.12.2018, framed the following issues for adjudication and determination:

1. Whether the plaintiffs are in physical possession of land measuring 38 kanal 12 marlas falling under khasra no.456/1 situated at Meen Sarkar Tehsil Bari Brahman District Samba? (OPP) 2. If issue No. 3 is proved in affirmative whether the defendant is interfering the peaceful possession of the above said land of the plaintiff? (OPP) 3. Whether this court has no jurisdiction to try the present suit or not? (OPD) 4 CM(M) 24/2022

8. The petitioner/defendant moved an application for treating issue no.3 as the preliminary issue which was allowed by the Trial court and after hearing learned counsel for both sides, passed order impugned order dated 3rd May, 2021.

9. The impugned order dated 3rd May, 2021, passed by the Trial court is being challenged by the petitioner/defendant on the following grounds:

1. The impugned order is against facts, law, perverse, based on surmises, misinterpretation of facts and law;

2. The trial court has erred in holding, that the J&K Agrarian Reform Act, 1976 is not applicable to the suit land;

3. The Trial court has erred in returning finding that suit is triable by the civil court as this finding include interpretation of section 19 (3) (e) and section 25 of Agrarian Reform Act, 1976;

4. That because the Trial court erred in returning the finding that "herein the plaintiff is claiming his possession on the basis of allotment order in his favour in 1958 and in support showing the revenue entries which already stood the test of trial up to Apex court. Though the entries in Revenue Record did not confer any title, but they will prove the possession of the person whose name entered in Revenue records. The entries in Revenue record and land revenue receipts are public documents, as such, unless the contrary is proved, they will be treated as genuine;

10. Heard learned counsel for the parties and perused the material on record.

11. Perusal of the record tends to show that the respondents/ defendants filed an application under Section XXXIX Rule 1 and 2 CPC, before the Trial court and the said application came to be disposed of vide order dated 07.05.2018, whereby the petitioner/defendant was restrained interfering in, forcibly occupying or dispossessing respondents/plaintiffs from land bearing khasra No. 456/1 measuring 38 5 CM(M) 24/2022 kanals 12 Marlas situated at Village Meen Sarkar, Tehsil Bari Brahmana. Thereafter, an application was filed by the petitioner/defendant for hearing and deciding the preliminary issue No.3 in respect of jurisdiction of the Trial court to deal with the suit. On 25.03.2021, the application was allowed by the Trial court and both the counsel were directed to advance their arguments on this preliminary issue, whether the Trial Court has the jurisdiction to try the suit or not.

12. The Trial court after hearing learned counsel for the parties and while considering the written arguments filed by the petitioner/defendant, vide impugned order dated 03.05.2021, decided the preliminary issue of jurisdiction by observing as under:- “The first and foremost requirement to seek injunction is that the existence of a right in the applicant, corresponding obligation on the part of the opposite party and infringement or threat. The word obligation was defined in clause (a) of section 2 of Specific Relief Act as under (a) obligation" includes every duty enforceable by law; so its wide enough to embrace all sorts of legal duties. In order to entitle the plaintiff to obtain an injunction, there must be an invasion or threatened invasion of the plaintiffs right to or enjoyment of property Herein the plaintiff is claiming his possession on the basis of allotment order in his favour in 1958 and in support showing the revenue entries which already stood the test of trial up to Apex Court. Though the entries in revenue records did not confer any title, but they will prove the possession of the person, whose name entered in revenue records. The entries in revenue record and land revenue receipts are public documents, as such, unless the contrary is proved, they will be treated as genuine. The defendant is denying the said possession of plaintiff by way of claiming actual possession over some part of suit land somewhere after the Year 2000. Therefore, the defendant has raised the defence of adverse possession over some, part of suit land. Hence, controversy between parties as well as determination of relief is clearly well within domain of Civil Court. Therefore, in light of detailed discussion made supra the preliminary issue raised by defendant that this Court lacks the Jurisdiction to deal with present suit stands not proved by defendant. Main suit be run for evidence of plaintiff as per earlier directions passed by this Court subject to decision on application filed by defendant for amendment in written statement with respect to factual stand taken by them in earlier written statement”. 6 CM(M) 24/2022

13. The point of jurisdiction was raised by petitioner/defendant before the Trial court on the ground that the ‘Suit Land’ falls within the definition of ‘Land’ under Subsection 9 of Section 2 of Agrarian Reforms Act, 1976, and parties are at issue with respect to ‘Possession’ of Suit Land, thus treating explicit bar on Civil Court as Civil Court has no jurisdiction to determine the possession in such a like cases and it is the domain of revenue authorities, therefore, the suit is liable to be transferred to appropriate forum prescribed under Agrarian Reforms Act, 1976, to deal with such like cases.

14. The Trial court while referring to the judgment of this Court in Taramani Badial vs. Thakur Dass and others, decided on 10th August, 1973, said that the fundamental object of this Act was to abolish the system of the absentee landlordism, to make the tillers the owners and to set a ceiling on land holding. The Trial Court further said that while applying the Golden Rule of interpretation, Section 19 of the Agrarian Reforms Act, 1976, which defines the disputes to be dealt by Collector Agrarian Reforms and creates Bar on jurisdiction of civil court, pertains only to the dispute which arises out of any act done while implementing the Land Reforms Act; reliance was placed on Full Bench judgment of this Court passed in Jagru and others vs. Badsri and others, decided on 30th March, 1979. So, the Trial Court has taken care of all aspects of the matter as were required of it while passing impugned order.

15. It is pertinent to mention here that writ under Article 227 of the Constitution of India is not an ordinary writ and the power, as such, has not to be and cannot be exercised in a routine manner. Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court formed under a law related to armed forces). The High Court can, thus, under Article 227 – a) Call for returns from such courts, b) Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts. 7 CM(M) 24/2022 c) Prescribe forms in which books, entries and accounts be kept by the officers of any such courts. d) Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts. e) Scope, Powers and Difference between Article 226 and Article 227.

16. The Hon’ble Supreme Court in the case of Surya Devi Rai vs. Ram Chander Rai, 2003 (6) SCC 675, relied on several judgments; one of which was Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and anr, (1986) Supp. SCC 401, which laid down the scope, power and differences between Article 226 and Article 227.

17. The first and foremost difference between the Article 226 and 227 is that the proceedings under Article 226 are in exercise of the original jurisdiction of the High Court whereas the proceedings under Article 227 are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is similar to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors.

18. The Supreme Court further observed that the power under Article 227 shall be exercised only in cases occasioning grave injustice or failure of justice such as when: i. The court or tribunal has assumed a jurisdiction which it does not have; ii. The court or tribunal has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and iii. The jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction. 8 CM(M) 24/2022

19. The Supreme Court in the case of Surya Devi Rai (supra)has further observed that there is lack of knowledge of the distinction between the understanding of Article 226 and 227 and hence it is a common custom with the lawyers labeling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncements.

20. After discussion of the chain of decisions, the Supreme Court in Surya Devi Rai (supra) has laid down the following differences: “i. Firstly, the writ of certiorari is an exercise of its original jurisdiction (Article 226) by the High Court; exercise of supervisory jurisdiction (Article 227) is not an original jurisdiction and in this regard, it is akin to appellate revisional or corrective jurisdiction. ii. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more (Art 226). In exercise of supervisory jurisdiction (Art 227) the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute the impugned decision with a decision of its own, as the inferior court or tribunal should have made. iii. The jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved aggrieved but the power conferred under Article 227 viz the supervisory jurisdiction is capable of being exercised suo moto as well.”

21. The Supreme Court concluded that under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted: i. without jurisdiction, by assuming jurisdiction where there exists none, or ii. in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or iii. acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural 9 CM(M) 24/2022 justice where there is no procedure specified, and thereby occasioning failure of justice.

22. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have, or has failed to exercise a jurisdiction which it does have, or the jurisdiction though available is being exercised by the court in a manner not permitted by law, and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

23. Perusal of the record reveals that respondents/plaintiffs are not claiming their possession on the basis of Agrarian Reforms Act, 1976, nor is petitioner/defendant claiming the possession over the suit land on the basis of the said Act. The respondents/plaintiffs have won the one-round of litigation up to the Apex Court and they want to save their possession over the suit land from the petitioner/defendant and in this regard the respondents/ plaintiffs have filed a suit before the Trial court for permanent prohibitory injunction restraining the petitioner/defendant from interfering, forcibly occupying or dispossessing them from land measuring 38 kanal 12 marlas falling under khasra No. 456/1 situated at Meen Sarkar Tehsil Bari Brahamana District Samba.

24. While deciding the preliminary issue No.3, with regard to jurisdiction of the civil court the Trial court in the impugned order has mentioned that the respondents/plaintiff are claiming their possession on the basis of allotment order in their favour in 1958 and in support showing the revenue record which already stood the test of trial up to Apex Court. Though the entries in revenue records did not confer any title, but they will prove the possession of the person, whose name entered in revenue records. The entries in revenue record and land revenue receipts are public documents, therefore, unless the contrary is proved, they will be treated as genuine. It was further observed that the petitioner/defendant is denying the said possession of the respondents/plaintiffs by way of claiming actual 10 CM(M) 24/2022 possession over some part of suit land somewhere after the year 2000, he has raised the defence of adverse possession over some part of suit land. The Trial court after hearing learned counsel for the parties, considering the written statement filed by the petitioner/defendant and after going through the material on record has opined that the controversy between the parties as well as determination of relief is clearly well within the domain of Civil Court and the preliminary issue raised by the petitioner/defendant that the Court lacks jurisdiction to deal with the suit in question stands not proved by the petitioner/defendant.

25. In view of the well-settled legal position, discussed above, I do not find any illegality committed by the Trial court. The order is well reasoned and needs no interference. The party approaching the court with a suit, appeal or any other proceeding does not automatically get clothed with a right to necessarily get a relief in its favour, but there are certain parameters envisaged by law that are to be satisfied before any such direction is passed. It cannot be granted on mere asking of the party. The satisfaction of the court vis-a-vis prima facie case having been made out is of utmost importance and cannot just be brushed aside.

26. For the aforementioned reasons and circumstances, there is no scope for interference with the order impugned passed by the Trial court dated 03.05.2021. Thus, the writ petition being devoid of merit is dismissed along with connected MPs. (VINOD CHATTERJI KOUL) JUDGE Jammu 13.04.2022 Bir Whether the order is reportable: Yes/No