NOOR HASSAN Vs. STATE

JUDGEMENT

(1.) ONE Mehar Shamus died leaving behind two sons namely Mehar Fateh Mohammad and Abdullah who inherited his estate measuring 57 kanals and 9 marlas of Shamlat land in village Nand Marg Tehsil Kulgam situate under survey No. 445/441. Abdullah died issueless with the result that whole estate went to Mehar Fateh Mohammad who passed away leaving behind two sons namely Mehar Noor Jamal and Jamal - ud -din of whom Jamal -ud -din is alive and Mehar Noor Jamal has passed away leaving behind six sons, the petitioners and respondents 1 to 3, who are locked in litigation over inheritance rights regarding aforementioned land with petitioners and respondents 2 and 3 claiming shares out of the same.

(2.) THE litigation appears to have commenced on 14.6.2006 with presentation of plaint by petitioners herein before the court of Munsiff, Damhal -Hanjipore wherein respondents 2 and 3 filed their written statement agreeing with petitioners in so far as their claim to the extent of their respective share as descendants of deceased Noor Jamal is concerned while as first respondent instead of filing a written statement tiled an application on 8.7.2006 seeking rejection of plaint under Order VII Rule 11 CPC on the ground that it was barred under the provisions of Land Revenue Act and court had no jurisdiction to act in the matter. This application appears to have been objected to by petitioners herein but was, however, allowed by learned Munsiff after hearing the parties with an observation that the suit land being prohibited Shamilat, the court lacked jurisdiction to try or entertain the suit in terms of the bar under Section 139 (14) of Land Revenue Act (hereinafter to be called as 'the Act'). No decree was, however, drawn in accordance with the judgment.

(3.) I have heard learned Counsel and considered the matter. Before coming to merits, it would be appropriate to consider the objection taken by respondents counsel regarding maintainability of revision petition on the ground that in terms of Sub -section (2) of Section 115 CPC under revisional power this Court cannot modify or reverse an order against which appeal lies either to this or any other subordinate court and the order of rejection being a decree in terms of Section 2(2) CPC is appealable as under Order 41 CPC so the bar on maintainability of revision petition as created by Sub -section (2) of Section 115 CPC would come into play rendering the revision petition not maintainable. Sub -section (2) thereof which creates a bar on entertainment of revision petition against appealable orders/decrees has been grafted into the Code vide amendment of 1983 and incidentally till 1997 there has been a sort of divergence of opinion in this Court regarding maintainability of revision petitions even after the -aforesaid amendment which, however, appears to have been set at rest though a little loosely by a Division Bench of this Court in case 'State of J&K; v. Gh. Rasool' reported as wherein while addressing the question one of the Hon'ble Judges on Bench ((G.D.Sharma J.) has cautiously opined that the constitutional power of superintendence over subordinate civil Court vested in this Court under Section 104 of the State Constitution which in terms of the law declared by Supreme Court is a basic feature, encompass both the administrative as well as well as judicial side. The other Hon'ble Judge on the Bench (Nazki J.) has, however, expressly struck down. Sub -section (2) of Section i 15 CPC as being ultra vires the Constitution for the aforesaid reason. In view of the said judgment the controversy raised is not capably of being discussed further at this level. Accordingly the objection taken to maintainability of revision petition on both counts cannot sustain.