MOHINDER PAL Vs. KAILASH DEVI

JUDGEMENT

(1.) THE question to be considered in this case is as to what is the effect of the Jammu and Kashmir Agrarians Reforms Act, 1976 on the pending cases in civil and Revenue Courts. The same question fell for answer by a Full Bench of this Court in Rahim and ofs Versus Amma Dar and ors (AIR 1975 J&K 33) in relation to the Jammu and Kashmir Agrarian Reforms Act, 1972. The said Act has since been repealed and replaced by the present Act called Ëœthe Jammu and Kashmir Agrarian Reforms Act, 1976â„¢. The provisions of the present Act are in pari -materia with the provisions of the repealed Act. The only material change is the addition of Section 19 in the present Act, which specifically provides that the cases involving disputes of the nature covered thereby shall be transferred for disposal to the Collector (Agrarian). Dealing with the effect that the Act of 1972 had on the pending actions, the Full Bench observed as under: - In the new Act and the rules thereunder applying to the pending actions, the resultant effect is that a pending actions will continue or collapse according as it survives or not the new Act and the rules made thereunder. That will generally depend on the facts and circumstances of each case, the relief claimed therein, and the particular provision of the new Act and the rules thereunder having bearing on it, Broadly speaking a pending action will survive if by or under the New Act, the right be not acquired, and, even if not so acquired ; it be not lost or destroyed either ; and the remedy too be not barred or changed. It will not survive if, in consequence of the new Act the right be acquired, lost or destroyed and even if not so acquired, lost or destroyed the remedy be barred or changed.

(2.) THE principle will equally apply under the present Act. On this principle, a pending action will collapse if, in consequence of the present Act the right claimed has been acquired, lost or destroyed and even if not so acquired, lost or destroyed, the remedy is barred or changed. Section 42(2) provides as under: - (2) All applications, suits and proceedings pending before any Revenue Officer, Civil or Revenue Court, any authority acting under the Jammu and Kashmir consolidation of Holdings Act, 1962 or the Government on the date of the commencement of this Act under any of the provision; of the Acts mentioned in sub -section (1) shall, so far as these are inconsistent with the provisions of this Act, abate.

(3.) HERE are instances of the cases where the remedy has been taken away. Section 19 provides instances of changes in the remedy. Section 19 so far as relevant provisions as under: - 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 inter -median, 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.