ABDUL RASHID RATHER Vs. GHULAM AHMAD GANAI

JUDGEMENT

(1.) The petitioner, through medium of instant revision petition calls in question order of Learned Sub-Judge Bijbehara, whereby Learned Trial Judge under Order 7 Rule 11(d) CPC rejected the petitioner's plaint. The revision petition has been filed against the following back drop.

(2.) The petitioner on 22nd November 2005 laid a suit for grant of declaratory decree declaring the petitidner owner in possession of a plot of land measuring 2 Kanal 10 Marlas comprising Survey 607/B situated at Frisal Tehsil Kulgam, (herein referred to as suit land). The petitioner also prayed for a permanent injunction decree perpetually restraining the respondents 1 to 4 from interfering with the possession of the suit land and a mandatory injunction decree commanding defendants 5 and 6 i.e. Tehsildar (Territorial) Kulgam and Additional Deputy Commissioner Anantnag to restore the entries in the revenue record in respect of the suit land in accordance with levy under No. 18135 and mutation orders 845 and 848 under Sections 4 and 8 Jammu and Kashmir Agrarian Reforms Act, 1976 to the position as existed prior to alleged interpolations/insertions in the revenue record. The petitioner's case was that the suit land having been in cultivating possession of the petitioner, mutation under Section 4 of Jammu and Kashmir Agrarian Reforms Act, 1976 was attested under mutation order No. 849 in favour of the State and thereafter when the petitioner deposited levy under No. TR 18135 in Treasury, Kulgam, the mutation under Section 8 of the Act vide mutation order No. 848 was attested in favour of the petitioner, clothing the petitioner with ownership rights over the suit land. It was pleaded that petitioner after the mutations were attested planted fruit bearing trees, converted it into an orchard and has been ever-since in the possession of suit land. The petitioner complained that the defendant No. 1 working as Girdawar in Revenue Department, made an attempt to persuade the petitioner to exchange the suit land with proprietary land of the respondent No. 1 and when the petitioner spurned the offer, the respondent No. 1, in connivance with local Patwari made interpolations/insertions in the revenue record and got his name recorded as owner of the suit property; and that the respondent No. 1 encouraged by his manipulations was with the assistance of Respondents 2 to 4, keen to interfere with petitioner's possession over the suit land and that the official respondents despite request ignored to restore the entires in the revenue record pertaining to suit land to the position as existed before the alleged interpolations/insertions.

(3.) That respondent Nos. 1 to 4 without filing written statement in the suit made an application under Order 7 Rule 11 CPC pleading therein that as Trial Court lacked jurisdiction to deal with the controversy raised by the petitioner and try the suit, the plaint was liable to be rejected under Order 7 Rule 11 (d) CPC. The respondent's, case was that the dispute raised in the suit fell within the ambit of Jammu and Kashmir Agrarian Reforms Act, 1976 and jurisdiction of Civil Court was expressly barred in terms of Section 25 of the Act. The Respondents 1 to 4 further pleaded that the petitioner had no cause of action inasmuch as the petitioner had ignored to issue notice to Respondents 5 and 6 prior to institution of suit and thus failed to comply with requirements of Section 80 CPC. The application was resisted on the grounds that as the petitioner's suit was for declaration of his title over the suit land and for permanent jurisdiction decree, Civil Court had jurisdiction to try the suit.