TH BHAJAN SINGH Vs. INHABITANTS OF VILLAGE, RAIPUR

JUDGEMENT

(1.) THIS civil second appeal in a representative suit under Order 1 Rule 8 of Civil P.C. has been filed against the judgment and decree passed by the first appellate court, where under the suit which was dismissed by the Trial Court vide judgment and decree dated 11 -1 -1990, passed in Civil suit No: 65/ Numbree, instituted on 1 -8 -1987 titled Residents of Village Raipur Domana through Th. Ganga Singh and others versus Thakur Bhajan Singh and others has been reversed.

(2.) THE first appellate court, while allowing the appeal and setting aside the judgment and decree, has remanded case back to the Trial Court for returning its finding afresh on issue Nos. 1 and 8 after giving parties proper time to lead evidence. This judgment and decree in the appeal has been passed on 19 -3 -1990 which is impugned in this civil second appeal.

(3.) IT is an admitted fact that the second appeal will lie only on questions of law as laid down under section 100 of Civil P.C. as amended till date, which reads: "100. Second Appeal: - (1) Save as other wise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed exparte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5} The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question; Provided that nothing in this sub -section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question." In the light of the above legal position and the statute, the legal questions formulated by the appellants in this appeal are: i/ Whether, for the enforcement of a right or liability under the Jammu and Kashmir Common Lands {Regulation} Act, 1956, which creates a right and provides remedy therefore, a suit can be maintained in a Civil Court? ii/ Whether the jurisdiction of the Civil Court, in the matter of enforcement of the aforesaid right and liability, is ousted even otherwise than a Section 16 of the said Act? iii/ Whether the order passed by Tehsildar under Section 4 of the said Act, on June 2, 1987, rejects the application with regard to Khasra No. 2540 of village Raipur Domana, if so, whether the relief claimed in the suit, in effect, seeks to challange the said order and the proceedings culminates there into, under the said Act by means of a Suit? iv/ Whether, once the jurisdiction of the authorities under the Jammu and Kashmir Common Lands (Regulation) Act is invoked, and the same is exercised one way or the other, and the relief asked for is not granted, the said relief can be claimed by means of a suit without attracting the bar contained in Section 16 of the said Act? v/ Whether the respondents, by means of the suit in question, seek to enforce any common right of the community. If so, whether the suit in the present form is maintainable? vi/ Whether, in view of the admitted fact that the appellants have been in exclusive possession, as owners, of the land, for decades together, since prior to 2002 BK, a suit for declaration and injunction is maintainable? vii/ Whether the respondents have locus standi to file the suit? viii/ Whether the suit discloses any cause of action?