PRATIBHA KHULLAR Vs. KAMAL KUMAR AND ANR.

JUDGEMENT

(1.) This civil revision is directed against order dated 31.03.2010 passed by learned City Judge, Jammu, in a civil suit titled 'Kamal Kumar v. Parkash Megh and anr.' in File No.132/civil whereby preliminary issues regarding jurisdiction and maintainability of the suit, have been decided against the petitioner.

(2.) In the petition, it is stated that respondent-Kamal Kumar filed a civil suit against the petitioner for declaration declaring the plaintiff in authorized possession of land measuring 10 1/2 marlas under Khasra No.189 situated at Chak Changerwan, Jammu with consequential relief of permanent prohibitory injunction restraining the defendants from interfering in the peaceful possession and uninterrupted possession of the plaintiff over the suit land directly or indirectly and further restraining defendant No.2, in particular, from claiming the land in possession of the plaintiff which has been restored to her by the revenue agency. The petitioner was put to notice and filed the written statement in the suit and specific objections regarding jurisdiction of the Court and maintainability of the suit were raised. The Court below framed issues in the suit, which included the issue regarding jurisdiction and maintainability of the suit. That the issues of jurisdiction of civil court and maintainability of the suit were treated as preliminary issues but the Court below has while ignoring the law on subject, decided these issues erroneously. That the petitioner apprised and argued threadbare regarding the jurisdiction and maintainability of the suit but the Court below has failed to apply judicial mind to the facts and law on the case. The petitioner challenges the order impugned on the following grounds:-

(3.) I have considered the rival contentions. The brief facts of case is that in the suit filed by plaintiff/respondent No.1, it is stated that plaintiff came to know that the defendant No.1 owns land at Moza Chak Changerwan Jammu and as such approached him for a plot of land. That the defendant satisfied the plaintiff on the basis of Khasra Girdawrari and mutation No.998 dated 24.3.1989 that he was the owner of total land measuring 24 kanals and 16 marlas at the said place. That after complete satisfaction, the plaintiff asked the defendant No.1 for sale of plot which was seen by the plaintiff and defendant No.1 agreed to sell but at first instance the defendant No.1 agreed for execution of Agreement to Sell for handing over the possession on payment of full sale consideration, with a promise that the defendant No.1 will thereafter execute a sale deed in favour of the plaintiff. That the defendant No.1 executed Agreement to Sell with the plaintiff on the basis of payment of full sale consideration on 27th August, 1997 at Jammu through his power of attorney Sh. Raghubir. That after executing the agreement to sell, the physical possession of the plot of land was handed over to the plaintiff. That the plaintiff as such took over the possession of said plot of land and immediately thereafter constructed one room on the said plot and rest of the plot was bounded by a boundary wall of bricks with a gate thereon. The plaintiff continued in peaceful possession of the said room and land fenced with boundary wall of bricks. The plaintiff has also got electric connection in his name with installation No.171855. The plaintiff as such continues in authorized and legal possession of the suit land right from 27.08.1997. That the defendant No.1 as per his promise did execute the sale deed regarding the said suit property in favour of the plaintiff till date which he was bound to do, as a consequence the plaintiff did get legal transfer of the title of the land in his favour. The plaintiff approached defendant No.1 for executing the sale deed but he has again promised to execute a sale deed within some days after obtaining necessary Fard Intikhab Jamabandi from the revenue authorities. That few days back, defendant No.2 namely Mrs. Pratibha had come near the suit property and had claimed that the land viz. the suit property has been restored to her by some revenue authorities and had threatened that she is going to demolish the boundary wall etc. That the plaintiff on coming to know that the defendant No.2 had made a claim that the suit property has been restored under some revenue orders so that plaintiff immediately approached the defendant No.1 for clarification about the claim made by defendant No.2. The defendant No.1 on enquiry apprised the plaintiff that land under Khasra No.189 out of which 10 1/2 marlas was given to the plaintiff was under the active tenancy of him and finally under mutation No.998 dated 24.03.1989 the defendant No.1 was declared to be the owner of the entire land measuring 24 kanals 16 marlas. The said mutation was challenged and under Section 7 of the Agrarian Reforms Act a total vacant land of 2 kanals and 4 marlas as per revenue record was shown to have been restored to defendant No.2. The land possessed by plaintiff measuring 10 1/2 marlas which was an open land has absolutely no concern with that order as the said plot of land comes within the ownership of defendant No.1 even after passing of alleged order. That on the suit land there exists a room right from 1997 with a boundary wall and same is under the peaceful and uninterrupted possession of the plaintiff nothing to do with any order of restoration as the land exclusively falls within the original ownership of defendant No.1 in accordance with mutation No.998 dated 24.03.1989. That defendant No.2 on 18.12.2007 had sent some two unknown persons who tried to enter the premises of the suit property with mala fide intention of demolishing the boundary wall as such cause of action accrued in favor of the plaintiff on 18.12.2007 against the defendants.