MUMMA MALLA Vs. MOHAMAD PADROO

JUDGEMENT

(1.) The dispute in this case relates to land measuring one Kanal under survey No. 461 in village Heff Tehsil Shopian. The plaintiff has claimed himself to be the exclusive owner of this land and prayed for a decree of permanent injunction commanding the defendants to remove the house which they have constructed over it without the plaintiff's permission. In defence, it has been pleaded that defendant No. 1 is in possession of the disputed land adversely to the plaintiff for the last more than 25 years, in consequence whereof he has acquired ownership rights over the land. Before the trial Court, the defendant raised a preliminary objection to the effect that the Civil Court had no jurisdiction to try this suit. The objection was founded on the provisions of Jammu and Kashmir Agrarian Reforms Act, (hereinafter called the "Act"), and the contention was that the suit was triable by the Collector (Agrarian). The trial Court has repelled this contention and held that the suit is triable by the Civil Court. Hence this revision,

(2.) Section 19 (3) of the Act provides as under :

(3.) The argument of the learned counsel for the respondent, however, is that the disputed land is not "land" as defined in the Act, and, as such the question of making any reference to the Collector (Agrarian) did not arise. Dwelling on this point, he urged that the disputed land is a building site which is expressly excluded from the definition of the "land" as given in the Act. I am not inclined to agree with this argument. The reason is that the question whether the disputed land is "land" as defined in the Act, falls within the exclusive jurisdiction of the Collector (Agrarian), and it is for him to decide as to what is the character of the land, and whether it falls within the purview of the definition of the "land" given in the Act. I say so because the matter concerning settlement which falls within the exclusive jurisdiction of the Collector (Agrarian) carries with it the power to determine the jurisdictional question whether the land in dispute is "land" as defined in the Act, being a question upon the determination of which depends his power to make the settlement under the Act.