NEK RAM Vs. BHARAT BHUSHAN

JUDGEMENT

(1.) Petitioners are the contesting Defendants and the Respondents are the Plaintiffs in the original civil suit (For short to be referred to as Plaintiffs and Defendants). A civil suit for permanent prohibitory injunction was filed by the Plaintiffs before learned Munsiff Billawar stating therein that they were owners in cultivating possession of some chunk of land (twenty-four kanals and two marlas) situated in Halqa Dher Tehsil Billawar. Since Ram Chand one of the co-sharers in the suit land had died hence some of the Plaintiffs being successors were also in possession of the said suit land alongwith their co-sharers. The case further set up by the Plaintiffs was that the Defendants were forcibly encroaching upon the land and therefore, they should be restrained. A preliminary objection was raised by the Defendants that the suit was not maintainable in the present form as the matter comes within the jurisdiction of J and K Agrarian Reforms Act (Validation) Act, 1997 (For short the Act) and therefore the jurisdiction of the Civil Court was ousted to take cognizance under the provisions of Section 19(3)(e) of the said Act. Based on the pleadings of the parties, five issues were taken for settlement, out of which, issue No. 1 with regard to the jurisdiction was treated as preliminary issue which was decided by the learned Trial Court in the start, holding that the dispute between the parties in the suit was to be decided by the authority appointed under the Act only and therefore, referred the matter to SDM (Collector) Basohli. Aggrieved of the said order, the Plaintiffs filed a revision petition bearing C. Rev. No. 37/2001 in this Court which was allowed on 25th of November 2004 setting aside the order of the learned Trial Court and directed the trial court to proceed with the case in accordance with law.

(2.) During the proceedings before the learned Trial Court, Defendants, in year 2009 moved an application for recasting issue No. 1 on the ground that in the light of certain judgments rendered after the decision of aforesaid civil revision are in their favour on the point of jurisdiction, as such the issue already decided was required to be reconsidered. The said application was opposed by the Plaintiffs and ultimately the learned Trial Court dismissed the same vide impugned order dated 06-11-09 observing that it was hit by principle of res judicata as the issue involved already stood decided by this Court in the Civil revision petition (37/2001) which had attained finality. Aggrieved of the said order, Defendants are before this Court through the instant revision petition praying for setting aside the order of learned Trial court or in the alternative seeking review of the order dated 25-11-2004 passed by this Court in the aforesaid revision petition (No. 37/2001) on the strength of the decisions of this Court. Further prayer is that the instant petition be treated as petition under Article 227 of Constitution of India read with Section 103 of Constitution of Jammu and Kashmir seeking direction to the Trial Court to transfer the main suit for adjudication before appropriate authority under the Act.

(3.) I have heard learned Counsel for both the sides and perused the available record.