NEK RAM Vs. PARKASH CHAND AND OTHERS

JUDGEMENT

(1.) This revision petition is directed against the order dated 11.02.2015 passed by Learned Munsiff, Billawar whereby the preliminary issue raised in the suit has been decided in favour of respondent No.1 and against the petitioner.

(2.) Briefly stated, the facts leading to the filing of this revision petition are; respondent has filed a suit for mandatory injunction for directing the petitioner herein and proforma respondent to remove the blockade or obstruction from the pathway measuring 11 feet in width existing on the land comprised in Khasra No.429 of village Dewal. In the suit, respondent No.1 has claimed that he along with the petitioner and the proforma respondent are joint owners in possession of the land bearing Khasra Nos.429 & 432 of village Dewal, Tehsil Billawar since the time of their forefathers and that there is in existence a common pathway which was left by their forefathers for connecting their houses to a Bandobasti Gali situated in the western side of their residential house. It is also alleged in the plaint that the petitioner and the proforma respondent are encroaching upon the aforesaid pathway by damaging it and its fencing. It is also claimed by respondent No.1 in the plaint that he had approached Tehsildar, Billawar with his grievance but learned Tehsildar refused to provide him any relief on the plea that the obstructed portion of the pathway was existing on the proprietary land of the parties.

(3.) On being put on notice in the suit, the petitioner and the proforma respondent filed their written statement and, inter alia, raised a preliminary objection with regard to the maintainability of the suit in view of the provisions of Jammu and Kashmir Common Lands (Regulation) Act, 1956 (herein after called "the Act" for short). On the basis of pleadings of the parties, the trial Court framed the following preliminary issue for adjudication in the first instance, "whether the controversy raised by the plaintiff falls under Common Lands (Regulation) Act, 1956 and thereby this Court lacks jurisdiction to hear and try this suit."