PLJ 2010
AJ&K 149
Present:
Rafiullah Sultani, J.
FAQIR
MUHAMMAD & 3 others--Appellants
versus
AZAD
GOVERNMENT OF THE STATE OF JAMMU & KASHMIR through its Chief Secretary and
4 others--Respondents
C.A. No. 18
of 2005, decided on 30.1.2010.
AJ&K
Grant of
----R.
3--Entitlement to grant of suit land--Nautur Kuanad and proprietary rights were
granted by collector--Proprietary rights mutation was attested--Validity--Only
those persons were entitled to obtain the grant of khalsa land who were holding
Nauter kunaindah on 15.6.1985 and continuous possession of the Nautor and
recorded as such in the revenue record--Held: It is function of revenue
authorities to decide the grant of proprietary rights under AJK Khalsa Land
Rules, 1985 and the authorities had jurisdiction to decide rightly as well as
wrongly--Appeal was dismissed. [Pp.
153 & 154] A & C
Civil
Procedure Code, 1908 (V of 1908)--
----S.
9--Specific Relief Act, 1877, S. 42--Grant of proprietary rights could not be
granted due to absence of entry in revenue record--Ejectment from suit land--No
legal right of suit land and failed to establish u/S. 42 of Specific Relief
Act--Validity--Civil Court has power to entertain a suit to decide civil rights
vested in Civil Courts u/S. 9 of CPC but where rights created under a special
Act and special authority also created for deciding the same--Jurisdiction of
Civil Court in barred--Such rights can be decided by authority which is created
for such purpose unless it does not travel beyond the jurisdiction--Held: Civil
Court has not vested jurisdiction to entertain the suit and appellants have no
cause of action. [P. 154] B & D
Resjudicata
in Civil Court--
----Ground
of dismissal of appeal--Judgment of a Court of special jurisdiction (
Malik
Muhammad Zariat, Advocate for Appellants.
M/s. Liaqat
Ali
Date of
hearing: 30.1.2010.
Order
This appeal
is directed against the judgment of District Judge Kotli dated 20.12.2004,
whereby the judgment of Civil Judge Kotli dated 31.12.2003 was maintained.
Brief facts
giving rise to the instant appeal are that appellants filed a declaratory suit
against the respondents in respect of land comprising number Khasra 677
measuring 03 Kanal out of 29 Kanal & 19 Marlas situated at Kotla Sarsawa in
the Court of Civil Judge Kotli on 28.10.2002. It is alleged that appellants are
local destitute and in possession of suit land, which is kind of Khalsa Sarkar
since long as Nautur Kuanad and proprietary rights were granted in favour of
them by Collector under AJ&K Grant of Khalsa land Rules
The learned
counsel for the appellants contended that impugned judgments of Courts below
are not in accordance with law and facts. It is contended that suit land is in
possession of appellants since Dogra regime and they made Nautor over the suit
land. The propriety rights were rightly granted in favour of the appellants by
Collector on 18.09.1998 on the basis of investigation conducted by Assistant
Collector and the said grant has wrongly been cancelled by Additional
Commissioner. It is next contended that appellants are entitled to grant of
suit land under Section-3 of Azad Jammu & Kashmir of Khalsa land Rule 1985.
It is further contended that
While
controverting the arguments of the learned counsel for the appellant, the
learned counsel for Respondent No. 5 contended the Courts below have rightly
rejected the suit of the appellants for want of cause of action as well as want
of jurisdiction. It is contended that appellants have no legal right with
regard to suit land and Additional Commissioner has rightly cancelled the grant
in favour of the appellants. It is next contended that appellants have made no
Nautor over the suit land and in revenue record, no
entry has been recorded with regard to this matter in favour of them. It is
further contended that appellants were ejected from suit land in first round of
litigation in 1983 and they filed the suit to protect their illegal possession
over the suit land. In support of his version; he cited following case law:-- [1992 SCR-87] and copy of Act 6 of 1989 dated
28.02.1989.
The learned
Additional Advocate General owned the arguments of the learned counsel for
Respondent No. 5.
I have heard
the learned counsel for the parties and gone through the available record of
the case carefully.
Before
parting with the points raised by learned counsel for the appellants, here I
would like to reproduce the 'Section-2 of Amended Act 1989, which reads as
under:--
2. Amendment
of Section 3, Ordinance VI of 1974:--
In the Azad
Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance,
1974 (Ordinance VI of 1974), for Section 3 the following shall be
substituted:--
"3.
Regularization of existing Nautors.--(1) A person to whom right in respect of
Khalsa land had accrued under Council Orders No. 38/C, 40/C of Dogra Regime or
any order of Poonch State or Government Order No. 282/57, and the right could
not be granted due to absence of entry in the revenue record as required under
Government Order No. 282/57, shall be entitled to the grant of proprietary
rights:
Provided it
is proved before the Collector of the District, after such enquiry as may be
prescribed, that such person has been, in continuous possession of Khalsa land
and recorded as such in the revenue record before Rabi
Provided
further that Nautors which do not fulfill the condition laid down in Government
Order No. 149/60 dated 11.3.1960 shall not be regularized.
(2) Proprietary rights for Nautors made out of
Khalsa land after Rabi
(a) whose entire
holdings including Nautor not exceed eight Kanals without payment; or
(b) whose entire
holdings including Nautor exceed eight Kanals but do not exceed thirty Kanals,
on payment of market price or at the rate of Rs.2000/- per kanal whichever is
less.
(3) Proprietary rights under sub-section (2), shall be granted only when it is proved before the
Collector of the District concerned that the Nautor Kunindah has been in
continuous possession of the Nautor and recorded as such in the revenue record:
Provided that for this purpose where
revenue record does not exist the Collector shall satisfy himself
through an enquiry to be conducted by a revenue officer not below the rank of
Thesildar.
(4) All sanctions of Nautor shall be incorporated
in the revenue record through mutation to be attested by revenue officer not
below the rank of Assistant Collector 2nd grade:
Provided that the
nautor which is likely to be required for any Government purpose or common
village purpose shall not be regularized.
(5) A land owner in possession of Nautor
exceeding thirty kanals including his own holdings,
shall be liable to summary ejectment by an officer not below the Rank of Naib
Tehsildar.
(6) The provision of this Section shall not
apply to the areas falling within the limits of Town Committees and Municipal
Committees.
(7) The holding of Nautor Kunindah for the
purpose of this Section shall be the holding as it stood on 15.6.1985 and any
transfer made by him after this date shall be reckoned in his holding.
(8) No Nauttor exceeding 30 kanals including
the holding of a Nautor Kunindah shall be regularized in any case and the said
Nautor Kunindah shall be summarily ejected by a revenue officer not below the
rank of Naib Tehsildar.
It is
crystal clear from bare reading of the above-quoted provision of law that only
those persons are entitled to obtain the grant of Khalsa land who are holding Nautor Kunindah on 15.06.1985 and continuous
possession of the Nautor and recorded as such in the revenue record.
Coming to
the instant case, the appellants have been ejected from number Khasra 677
measuring 29 Kanal & 19 Marlas vide the judgment of Collector District
Kotli dated 12.12.1995 and the said ejectment is recorded in Khasra Gardawari
pertaining to year Rabi 1983, which reads as under:--
Appellants
have not been recorded as Nautor Kuninda in revenue record and the grant of
proprietary rights could not be granted due to absence of entry in revenue
record and after ejectment from suit land, the condition of continuous
possession is disappeared and not existing in favour of the appellants.
Appellants have been ejected from the suit land in earlier round of litigation
up to Member Board of Revenue. After that they initiated fresh proceeding for
grant of proprietary rights to the extent of 03 kanals out of 29 kanals &
19 marlas and when they failed before revenue
authorities to prove their claim, then they filed civil suit to protect their
illegal possession over the suit land. Appellants have no legal right in respect
of suit land and failed to establish the same under Section 42 of Specific
Relief Act. It is correct that
In view of
reasons listed above, the appeal being devoid of force is hereby dismissed.
(R.A.) Appeal
dismissed.