MOHD SHAFI BHAT Vs. MOHD IQBAL MIR

JUDGEMENT

(1.) THE petitioner Mohamad Shafi Bhat instituted a suit for declaration and injunction against the respondent No. 2 Mst Raja in the Court of Sub -Judge Anantnag seeking there by restrainment against her from interfering into his possession over the land measuring one kanal and seven marlas compromising in survey No. 484 and Shamilat land attached there to measuring fifteen marlas covered by survey No. 92 situated at Aul -bagh Nowgam Anantnag, which according to the plaintiff he had purchased by oral sale from the defendant and had obtained the possession thereof which was being interfered by the defendant. The suit was compromised and pursuant there to compromise decree came to be passed in favour of the plaintiff on 19.8.1997 by the Ld. Sub -Judge Anantnag.

(2.) AGAINST the said compromise decree the respondent No. 1 Mohamad Iqbal Mir sought to file an appeal before the court of Ld. District Judge Anantnag. For filing appeal he also filed an application seeking leave of the court for filing the said appeal against the said compromise decree as he was not a party in the original suit in which the compromise decree sought to be appealed against had been passed. As the appeal was time barred, he also moved an application seeking condonation of delay Ld. District Judge by his order dated 20th of October 2000 without any notice to the respondents granted the leave to the respondent No. 1 for filing the appeal and consequently appeal filed by the respondent No. 1 was admitted for hearing. By the same order Ld. District Judge on the application of the appellant directed the parties to maintain status quo with respect to the subject -matter of the decree subject however to notice to the other side and till the filing of the objections the operation of the decree dated 19th August 1997 was also stayed.

(3.) IT is significant to note that application of the appellant seeking condonation of delay had not been decided before entertaining the appeal of the appellant by the Ld. District Judge. The petitioner who was respondent in the appeal at the outset raised a preliminary objection about the maintainability of the appeal. He submitted before the Ld. District Judge that without deciding the application of the appellants seeking condonation of delay the appeal could not be entertained under law and, therefore, firstly application for condonation of delay should be decided and till then the appeal should lie over. Ld. District Judge allowed the submission of the petitioner and by his order dated 5th April 2000 recalled the order dated 20th October 2000 and decided to take up the application of the appellant for condonation of delay for disposal before admission of the appeal to hearing. Consequently the appellant was directed to lead evidence in support of his application. The parties led evidence for and against the condonation of delay. Ld. District Judge then took up the application for hearing and after hearing the parties came to the conclusion that filing of the application for condonation of delay by the appellant was not at all required and even if the same had been filed it was unnecessary and as such the Ld. District Judge consigned the application to record without returning any finding as to whether the delay deserved to be condoned or not and thereafter admitted the appeal for regular hearing. For holding so Ld. District Judge advanced the following reasoning: I have given due consideration to the argument advanced by the LC for the appellant. In para 1 of the plaintiff is emphatically averred that he was the owner of the suit land because his adverse possession ripened into title and even in the compromise deed dt 19.8.97 similar recital has been made. LC for the contesting respondent No. 1 was not able to give any convincing reasoning to repeal the argument advanced by the opposite party. Since the appeal is yet to be heard on merits, it may not be proper for the court to dwelve on this point at length lest the appeal may get prejudged. But for the purposes of the instant application prima facie there appears to be substance in the submission of LC for the appellant. Section 19(3) of the Agrarian Reforms Act unambiguously provides that cases involving question of adverse possession shall be determined exclusively by the collector, and further sub -clause (5) of the said provision read with Section 25 of the said Act clearly excludes the jurisdiction of the civil court in matters enumerated in sub -clause (3) which also includes disputes involving question of adverse possession. In a recent decision of our own High Court reported as 1999 Srinagar Law Journal 524. It has been reported that Section 25 creates a bar jurisdiction to Civil Courts in respect of disputes including where a party pleads adverse possession against the recorded owner.