ADMINISTRATION SRINAGAR MUNICIPALITY Vs. ZAMINDARAN VILLAGE LASJAN

JUDGEMENT

(1.) ZAMINDARAN village Lasjan through named respondents have filed suit for declaration and permanent injunction in the court of District Judge Budgam against the revision petitioners, the office bearers of Srinagar Municipality, on the pleaded averment that the villagers of Lasjan have purchased land measuring 912.4 kanals with standing trees under survey Nos. 1080, 1125, 1421 and 1088 situated at Village Lasjan vide sale deed dt. 22.1.1970 registered on 10th of April 1970 with inter se shares specified in this deed. The land is in possession of the plaintiffs who have been usurping benefits as users in possession -cum -title holders of the land. Adjacent to this land, another chunk of land measuring 231.15 kanals under Survey No. 1088 is as well in possession and cultivation of the villagers of Lasjan who are appropriating the usufruct of the land. The Srinagar Municipality is raising claim to part of the land is threatening the villagers with dis -possession and is interfering with the plaintiffs possession. The plaintiffs have sought declaration of their title to land. On an application for injunction the trial court of District Judge Budgam granted an ad -interim injunction on 16.2.95 to plaintiffs/petitioners and restrained the defendants office bearers of Municipality from interfering with and depriving the plaintiffs of enjoyment of the possession and use of the land and trees standing thereon. Plaintiffs moved another application before District Judge Budgam seeking implementation of this court direction with assistance of police. The District Judge allowed the application on 14.12.1996, pending objections from other side with direction to Sub divisional Police Officer (SDPO)/Station House Officer (SHO) to ensure compliance of the court order dt.16.2.95 referred above. It is this order of Ld. District Judge Budgam which is under challenge. In this order of 14.12.1996 impugned on the ground that the Municipality is in the possession of land measuring 409.4 Marlas under various Khasra Nos. at Lasjan after the land stood mutated in the name of the department. The land is in possession of Srinagar Municipality. Though, the plaintiff have filed suit in representative capacity, yet the provisions of CPC Order 1 rule 8 have not been complied with. The plaintiffs have not given details of the land. The specifications and other required details qua demarcation of the suit land not been given. The survey numbers referred in the plaint cover much more land than given in the plaint. The land to which restraint order applies is not at all identifiable and ear -marked apart. That the order of interim injunction restraining the petitioners is passed at the back of the defendants, despite the fact that the defendants were not properly served. As the suit property was not adequately specified and identified by plaintiffs, therefore, the interim injunction dt.17.2.95 was not capable of implementation and that too in absence of actual spot demarcation. In order to over come this difficulty, the respondents filed an application on 21.08.96 seeking direction to Tehsildar Chadoora for demarcation of the land. The revision petitioners respondents are yet to file objections therein. The Trial court of District Judge Budgam without waiting for demarcation of the land, issued a direction to S.D.P.O/SHO Police station Sadder for implementation of order dt.16 -2 -96. This direction was issued on 14.12.1996. The direction suffers from improper exercise of jurisdiction. Without waiting for the revenue authority to demarcate the parties land separately, the direction of the District Judge Budgam to the police to render aid and assistance for implementing the order has caused miscarriage of justice for the appellant have been deprived of planting, thereby causing loss and injury to the Municipality. The impugned order is in violation of mandatory provisions of law. The S.D.P.O/ S.H.O. police station sadder has been arrayed as non -applicant though, not a party to the proceedings. Infact the order has not been passed in accordance with provisions of law and suffers from grave error and is vitiated by infirmity apparent on record. It has resulted in miscarriage of justice. The order suffers from lack of jurisdiction. Record of the trial court is available.

(2.) I have heard the parties, examined the record and considered the matter.

(3.) ADMITTEDLY , the suit is filed in the name of Zamindaran Village Lasjan through the named five persons against Administrator, Secretary and Estate Officer of Srinagar Municipality. On examination of the plaint, it is found that the suit is in representative capacity and the persons who have filed the suit are under a legal duty to file the suit with permission of court, on behalf of and for the benefit of all villagers interested. Neither any permission nor a direction under 01 R8 of CPC is on record. In absence of compliance with provisions of 01 R8 CPC, the suit is itself not competent. However, the counsel for the defendant is free to raise the ground and plea before the trail, court and the trail court after notice to otherside shall decide the matter in accordance with provisions of law.