Krishan Lal and Another vs Dhani Ram and Others

O.P. Sharma, J.—This civil revision is against the order dated 13.11.97 passed by the 2nd Civil Subordinate Judge, Jammu. In the suit,

plaintiffs-respondents challenged the agreement executed between the defendants and one Mst. Ananti Devi on March 13, 1992, in respect of

agricultural land comprising Kh. No.494 measuring 5 kanals situated in village ambaran Tehsil Akhnoor which was authenticated by the Tehsildar

Akhnoor. In terms of this agreement Mst. Ananti Devi admitted that the defendants-petitioners herein were in occupation of the suit land

comprising Kh.No. 481 measuring 7 kanals 19 marlas and kh. No.494 measuring 5 kanals as tenants in khariff, 1971. on the basis of agreement

Tehsildar passed an order that parties have entered into agreement in terms of which no levy was payable to Mst. Ananti Devi, owner of the suit

land. This agreement is purported to have been executed and authenticated in presence of plaitiffs-respondent who is said to have affixed his thumb

impression.

The agreement was challenged in the suit on the ground that it has been executed without his knowledge and only to deprive him of his rights

over the land measuring 5 canals comprising in Kh.No. 494 measuring 5 canals which he purchased form Mangal Singh its owner vide sale deed

registered by Sub Registrar, Akhnoor on 26.07.61. This land according to him, had been continued to be in his possession. The petitioners

challenged the maintainability of the suit on the ground that the suit land had been in their possession since 1957-58 and it has already vested in the

state u/s 4 of the Agrararian Reforms Act. The agreement impugned, it is further pleaded was only with respect to payment of levy as the same is

permissible u/s 12 of the Agrararian Reforms Act. The suit was, therefore, barred u/s 25 of the Agrararian Reforms Act. The trial court framed

four issues while framing the issues the learned court passed the following order on 16.07.1996:-

Whether the suit is not maintainable as it is barred by section 12 and 25 of Agrarian Reforms Act ? OPD.

Whether the cause of action has accrued to the plaintiff against the defendant ? OPP

Whether the suit is not properly verified and if so, what is the effect? OPD.

Whether the suit is not properly valued? OPD

Relief.

Issues mentioned above have been noted down by the counsel for the parties. Issue No. l has been treated as prelimnary issue and as such

required to be decided first. Parties are directed to deposit the diet expenses of the witnesses alongwith the list of witnesses if they want to seek

the assistance of the court in summoning the witnesses within 15 days. File shall come up for arguments on issue No. l on 06.08.96.

It appears presiding officer who framed the issues has either no occasion to read 0.14 and if he has ever read the provision, he never

understood its mandate. What is painful is that he does not seem to have elementary knowledge about the pleadings and framing of issues. It needs

hardly to be reiterated that issues arise when material preposition of fact or law is affirmed by one party and denied by the other. A bare persual of

0.14 would have put him on the right track that issues are of two kinds (a) issues of fact ( b ) issues of law. Moreover, all the issues framed by the

court are issues of law which had to be decided on the basis of averments made in the plaint. Yet only issue No. l was directed to be tried as

prelimnary as if others could be decided only on the basis of evidence. Not only this, even on issue No. l, Presiding Officer gave parties time to

deposit diet expenses of the witnesses when issue is purely of law requires no evidence. How the issues are to be decided is provided in Rule-2 of

the Order 14 which reads as under :-

Court to pronounce judgement on all issues. -

(1) Notwithstanding that a case may be disposed off on a prelimnary issue, the court shall, subject to the provisions of Sub-rule(2), pronounce

judgement on all issues.

(2) where issues both of law and of fact arise in the same suit, and the court is of opinion that that the case or any part thereof may be disposed of

on an issue of law only, it may try that issue first if that issue relates to.-

(a) the jurisdiction of the court, or

(b) a bar to the suit, created by any law for the time being in force,

and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after the issue has been determined and may deal with the

suit in accordance with the decision on that issue.

A little effort to take out bare act from the shelf and read it before passing the impugned order would have put him on the right track, but that

perhaps is the irony that some some officers donot like to be informed of the legal position at the time of the settlement of issues which is a very

important event towards the further progress of the suit. But what followed after the order dated 13.01.97 was passed by Hon'ble Mr. Justice

D.C. Sagotra is still worse because after holding that the suit is maintainable he directed the plaintiff to lead evidence on the remaining issues which

are all issues of law. This is nothing but total non-application of mind and lack of understanding of the elementary principles of law. It is that casual

approach by such officers which results in avoidable delay of cases which can be decided at the threshold under 0.7 R-11 of the code of civil

procedure. This failure to a large extent contributes to the delay in resolution of civil cases In some cases failure to frame proper issues vitiates the

decision and in such a situation de-novo would alone to be answer. This is how the delay takes place in the resolution of disputed. A Sub-Judge is

fairly senior officer and as such indifferent approach or lack of understanding of law cannot be expected from him. He has to give better account of

himself than what is noticed in this case. This is with regard to the settlement of issues. So far so good. But what is surprising is that the learned Sub

Judge who decided the case (Hon'ble Mr. Justice D.C. Sagotra) has failed to understand the controversy and his reference to the full Bench

decision of this court in Jagtoo v. Badri 1979 KLJ 172 and Full Bench decision of this court in 1986 KLJ 170 bear testimony to the effect that he

has not understood the law laid down and the ratio of the decision. He appears to be of the view that little of the plaintiff has first to be established

in this case and thereafter the matter refferred to collector to decide the factum of possession what he failed to understand is that the agreement

was with regard to the payment of levy. Such an agreement could be executed between ex-owner and the prospective owner by an agreement

duly registered under the J&K Registration Act or authenticated by the Revenue Officer. Section 12 of the Agrarian Reforms Act reads as under:-

Private agreement. Where an ex-owner of land, or, if such ex-owner had an intermediary under him prior to the first day of May 1973, such

ex-owner and such ex-intermediary jointly, and the prospective owner of such land by an agreement in writing, duly registered under the J&K

Registration Act, 1977 or authenticated by a Revenue Officer of a class not lower than a Tehsildar: -

(a) respectively acknowledge receipt and payment of an agreed amount; and/or

(b) admit having apportioned such land as between themselves in an agreed manner and having entered into possession of their respective shares in

accordance therewith;

Such payment or such apportionment of land or both, as the case may be, shall reieve the state of its liability to make payment to such person and

also relieve the prospective owner of his liability to pay levy to the state:

Provided that in case of apportionment of land the ex-landlord shall not have in his share more land than could be resumed by him under clause (f)

of sub-section (2) of section 7, if he were otherwise eligible to resume land.

A plain reading of the photostate copy of the impugned agreement shows that it is covered by section 12 of the Act because it has been

authenticate such agreement. In case this agreement is in contravention of section 12, remedy available to the plaintiff was u/s 21 of the Act and not

a civil suit. It is not the case of the plaintiff that the Tehsildar had no authority to authenticate the agreement. Such a suit is expressly barred u/s 25

of the Act which reads as under: -

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.

The plaintiff in fact, challenged the order passed by the Tehsildar u/s 12 authenticating the agreement which cannot be challenged in view of

clause (b) of section 25. Therefore, order of trial court is set-aside as a consequence of which plaintiffs suit shall stand dismissed. lt is open to the

plaintiff to challenge the agreement u/s 21 before the Agrarian Reforms Commissioner, if so advised. A copy of this judgement shall be sent to the

officer who passed the final order and their comments obtained. These shall be placed before the court at the time of recording their confidential

re- ports. Copies be also circulated to all the Munsiffs and the Sub Judges.