Qadir Sheikh vs Sallam Sheikh & Ors.

This revision arises out of a suit for declaration and partition of certain lands including Grahats situated in Harwan Tehsil, Srinagar. The defendant

resisted the suit, interalia on the ground that the civil court had no jurisdiction to try the case. The defendant's contention was two ford: Firstly that

he had pleaded adverse possession and as such the suit was liable to be transferred for disposal to the Collector under Section 19 (3) (e) of the

Jammu and Kashmir Agrarian Reforms Act.(Shortly ""the Act."") Secondly, that in any event the suit included the relief for partition which could not

be granted by civil court as the land involved was agricultural land. The trial court repelled both these contentions holding, firstly, that the

defendant's contention that he had pleaded adverse possession in the written statement was wrong, and, secondly, that the principal relief claimed

in the suit being the relief for declaration, the civil court had jurisdiction to try the suit and decide the question of title. On these premises, the trail

court decide the preliminary issues in favour of the plaintiffs and against the defendants The learned Sub Judge ( Mr. M. Y. Qawoosa) has failed to

apply his mind to the facts of the case and the law applicable thereto. In the plaint, the case of the plaintiffs was that the parties were the joint

owners occupiers of the disputed property. In defence it was pleaded that the defendant is the sole owner of the property and continues to be in

the exclusive possession thereof since the last settlement. In order to decide the question of jurisdiction, the important question that inevitably

arose, was whether the disputed property fell within the ambit of the expression ""land"" as defined in the Act, and, further whether it had vested in

one party or the other or in the State with effect from the appointed date. These questions fell for determination within the exclusive jurisdiction of

the Collector (Agrarian) under Section 25 of the Act. Before deciding the question of jurisdiction, the court, therefore, ought to have appropriately

referred these questions for determination to the Collector and stayed its hands to the matter till such determination became available. It has not

done so. On the other hand, the court has misread the facts and law and carved out a logic of its own to come to the conclusion that the case was

triable by a civil court. The order is completely misconceived and cannot be sustained in law. Allowing this revision, I set aside the order and direct

that the trial court shall proceed in the matter and deal with the questions of jurisdiction keeping in view the observations made above. The party

present is directed to appear before the court below on 5th of June, 1982. A copy of this order shall be forwarded to Mr. M. Y. Qawoosa for his

information.