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Ghulam Ahmad and anr. Vs. Habiba - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberLetters Patent Appeal (Civil) No. 9 of 1972
Judge
Reported inAIR1986J& K28
ActsJammu and Kashmir Agrarian Reforms Act, 1976 - Section 19 and 19(3); ;Jammu and Kashmir Agrarian Reforms (Amendment) Act, 1981; ;Code of Civil Procedure (CPC) , 1908 - Section 9
AppellantGhulam Ahmad and anr.
RespondentHabiba
Appellant Advocate S.P. Gupta and; A.S. Bali, Advs.
Respondent Advocate T.S. Thakur, Adv.
DispositionAppeal dismissed
Cases Referred(Mst. B. Fatma v. A. Ahmad
Excerpt:
- .....1/4th share of the land in dispute to the plaintiff. subsequently the defendant/ respondent in the present appeal brought a suit for cancellation of the compromise decree on the basis of fraud and non-compliance of the provisions of order 32, civil p. c. this suit was dismissed by the trial court on 13-6-1960. but on appeal by the defendant it was decreed by the district judge on june 28, 1963. thereafter a further appeal was taken to the high court, which upheld the decree passed by the district judge. the decree passed by the district judge was upheld by high court and consequentially the compromise decree stood set aside and the parties were relegated to the position they occupied at the time the compromise decree was passed and the previous suit brought by the present plaintiffs for.....
Judgment:

Shah, J.

1. The present Letters Patent Appeal arises against the judgment and decree passed by Hon'ble Mr. Justice S. M. F. Ali, (Chief Justice) on November 28, 1972, (reported in 1973 J & K LR 70) as he then was passed in Civil Second Appeal No. 88 of 1971 confirming the judgment and decree passed by District Judge, Bhaderwah, on October, 19, 1971.

2. Although the facts of the case are not very much disputed before us even then in order to elucidate the matter in controversy, we feel it necessary to narrate the brief facts out of which the present Letters Patent Appeal arises. The facts in brief are that one Habib Sheikh son of Subhan Sheikh of Tehsil Kishtwar earlier filed a suit for declaration to the effect that plaintiff was entitled to half of the land mentioned in the plaint as co-owner with the defendant-respondent Ahmadop Alias Gul Mohd, who claimed the land through the common ancestor Lassa, who purchased the land in dispute, which is admittedly an agricultural land. The suit for declaration was initially registered on August 28, 1955, which was later on compromised on September 19, 1957 and a compromise decree was drawn up giving 1/4th share of the land in dispute to the plaintiff. Subsequently the defendant/ respondent in the present appeal brought a suit for cancellation of the compromise decree on the basis of fraud and non-compliance of the provisions of Order 32, Civil P. C. This suit was dismissed by the trial Court on 13-6-1960. but on appeal by the defendant it was decreed by the District Judge on June 28, 1963. Thereafter a further appeal was taken to the High Court, which upheld the decree passed by the District Judge. The decree passed by the District Judge was upheld by High court and consequentially the compromise decree stood set aside and the parties were relegated to the position they occupied at the time the compromise decree was passed and the previous suit brought by the present plaintiffs for declaration stood revived. During the pendency of the subsequent suit, the plaintiff applied for permission to amend the plaint to include prayer for possession of part of the suit land, which was granted by the order of the Court on July 4, 1968. Thus the amended plaint included the prayer including that of declaration of title about possession also. Thereafter, the trial Court decreed the suit of the plaintiff holding that plaintiff is entitled to half of the suit land and, therefore, entitled to a decree accordingly. On appeal to the learned District Judge, the District Judge, Bhadarwah, upheld the decree passed by the learned trial Court and upheld the finding that the said property was the joint acquisition of the brother and the respondent was entitled to half of the share. Consequentially the appeal was dismissed.

3. Against the decree confirmed by the learned District Judge as stated above, the present appellant Ghulam Ahmad alias Gul Mohd. and another filed the Civil Second Appeal before the learned single Judge, which came up for hearing and on hearing the respective counsel for the parties, the learned single Judge Hon'ble the Chief Justice, as he then was, upheld the finding of fact arrived at by the two courts below in a detailed judgment discussing the law on the point and the controversy raised on fact before his Lordship and consequentially dismissed the Civil Second Appeal on November 28, 1972. Thereafter, by the order passed on December 22, 1972, his Lordship granted leave to appeal under the Letters Patent Appeal and thus the present Letters Patent Appeal.

4. On hearing the learned counsel for the parties at length, it has been pointed out by the learned counsel for the appellants very strenuously that in the facts and circumstances of the present case despite the fact the findings of fact are concluded by the decree in the Second Appeal, the case in hand cannot proceed before the Civil Court on account of the subsequent legislation and coming into force of the Jammu and Kashmir Agrarian Reforms Act, which clearly bars the jurisdiction of the Civil Court to adjudicate upon the matter relating to the land in dispute, which is admittedly an agricultural land. Long drawn arguments are advanced in support of the said contention by the learned counsel for the appellants relying on two Full Bench Authorities of this Court as well as single Bench authorities of this Court discussing the effect of the various provisions of the Jammu and Kashmir Agrarian Reforms Act, 1976 (hereinafter called the Act). The two Full Bench authorities cited at the Bar are : (1) AIR 1975 J & K 33, (Rahim v. Amma Bar) a decision on J & K Agrarian Reforms Act, 1972 (26 of 1972); and (2) 1979 Srinagar LJ 6 : (AIR 1980 J & K 1), (Jagatu v. Badri) a case on Jammu and Kashmir Agrarian Reforms Act, 1976, and similarly following the above two decisions, 1980 Kash LJ 150, (Mohinder Paul v. Mst. Kailash Devi) and 1983 Kash LJ 323 : (AIR 1984 J & K 28). (Mumma Malla v. Mohd. Padroo). Discussing the provisions of Section 19(3)(e) and Section 25 of the Act, as it stood at that relevant time prior to the amendment effected in Section 19 Sub-section (3). Clause (e) by the Jammu and Kashmir Agrarian Reforms (Amendment) Act, 1981 (Act No. VIII of 1981) and amendment in Clause (b) of Section 25 of the principal Act (sic). The preponderance of the above-said decisions specifically laid down by their Lordships that the cases arising out of the dispute referred to in Section 19(3), Clause (e) of the Act, by the force of Section 25 of the said Act shall be transmitted to the Collector (Agrarian) and it is for him to decide the character of the land, whether it falls within the purview of the definition of land given in the Act, being a question upon the determination of which depends his power to make the settlement under the Act. Thus the argument of the learned counsel for the appellant is that in view of the abovesaid decisions, the matter shall be referred and remitted to the Collector (Agrarian) for his findings and the Civil Court shall stay its hand from deciding the present matter in controversy unless the finding about the position relating to the land in question is given back by the Collector (Agrarian).

5. Learned counsel for the respondent in reply submitted that on the one hand this being a Letters Patent Appeal against the concluded findings of fact of the case, which was initiated at the time, when the Agrarian Reforms Act was not in force as well as looking to the facts and circumstances of the present case, the provision of the Agrarian Reforms Act either Section 19(3), Clause (e) or Section 25 are not attracted in the present case and especially after the amending Act of 1981 referred to above (Act No. VIII of 1981) the Legislature having amended the provisions of Section 19, Sub-clause (3), Clause (e), the decree passed in the present case being not under the Act, the ratio of the abovecited Full Bench decision due to the change in law will not apply and in fact it was in order to settle at rest the controversy relating to the jurisdiction of the civil Court vis-a-vis Collector (Agrarian) that the Legislature in its widsom substituted the provisions of Section 19, Sub-section (3), Clause (e) as it stood in 1976 Act by providing an amendment to the said provision by the amending Act of 1981 taken away the jurisdiction which was wide enough under the previous clause, which is now made limited and, therefore, the case as it stands is not covered by the provisions of Section 19, Sub-section (3), Clause (e) of the amending Act, 1981, and hence Section 25 of the Act does not take away the jurisdiction of the civil Court to adjudicate upon the matter and the reference to the Collector (Agrarian) is not called for.

6. In order to resolve the abovesaid controversy, it will be convenient to discuss the provisions of Section 19 as they stood in the 1976 Act and substituted thereafter by the amending Act of 1981.

Section 19, Sub-section (3), reads as under :--

'(3) The following applications, suits and proceedings shall be disposed of by a Collector : --

a) Proceedings under Section 56, Jammu and Kashmir Tenancy Act, Samvat 1980;

b) Proceedings under Sub-section (2) of Section 68-A Jammu and Kashmir Tenancy Act, Samvat 1980;

c) Proceedings under Section 24, Jammu and Kashmir Big Landed Estates Abolition Act, Samvat 2007;

d) Application by an owner of an intermediary that the person, who claims to be cultivating the land as tenant is not a tenant but a trespasser;

e) All other cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediary.'

By amending Act of 1981 (Act No. VIII of 1981) in place of Clause (e) of Sub-section (3) of Section 19, the following clause is substituted :

'(e) any other dispute relating to or arising out of the provisions of this Act.'

7. As a result of the above substitution in Clause (e), Sub-section (3) of Section 19, the position of law in our opinion stands distinguished from the position as it stood before the Amendment Act of 1981 and the powers conferred on the Collector (Agrarian) by earlier provisions in 1975 Act are narrowed down and thus we are of the view that looking to the controversy in the present case, wherein the decree for joint ownership coupled with the declaration of joint possession is granted the decree passed by the civil Court needs no reference to the Collector (Agrarian) under the provisions of Section 19, Sub-section (3), Clause (e). It is an established law that the courts are fully competent to take into consideration the subsequent legislation and it is only on this proposition that appellant wanted to persuade us that in view of the enforcement of the Agrarian Reforms Act during the pendency of the appeal at various stages, the matter required adjudication with respect to the land by the Collector (Agrarian) and this Court should stay its hand from disposing of the matter in controversy before this court.

8. The learned single Judge while discussing the evidence and the presumption of jointness with respect to the property in the hands of a Mohammadan has found that although the presumption of jointness was foreign to the concept of Mohammadan law, yet in view of the circumstances proved in the case Lassa's position was that of a trustee and any purchases made by him from the joint family funds would enure for the benefit of the joint family. Therefore, the land in dispute was declared to be joint and plaintiff/respondent was held entitled to half of the share of the land purchased by Lassa and common ancestor and therefore, they are declared in joint possession by the decree under appeal. It needs no further elaboration in view of the decision of the Patna High Court on the point reported in AIR 1963 Pat 128, (Mst. B. Fatma v. A. Ahmad) relying on a decision of the Calcutta High Court reported in AIR 1932 Cal 538 discussed by the learned single Judge that in the present case the property in dispute was purchased in the Benami name of Lassa meant for the entire family. Lassa was, therefore, a benamidar to the extent of half share, which was acquired . by Habiba, the respondent in the present case and, therefore, they are found as joint owners having joint possession. We are fully in agreement with the findings arrived at by the learned single Judge and do not find any ground to disturb the said finding. This is pertinent to note that none of the courts below while passing the decree under appeal directing the separation of the land in dispute and for possession except declaration to the effect that the appellants and respondent are declared holding the joint possession and the plaintiff/respondent has a half share in the property. The effect of the above decree in our opinion has in no way covered by the provisions of the Agrarian Reforms Act and in view of the amended provision of Section 19, Sub-sections (3), Clause (e) by amending Act of 1981, the present dispute does not fall within the ambit of any other dispute relating to or arising out of the provisions of the Act and, therefore, the cases cited above of the Full Bench and the Single Bench in our opinion are distinguishable on account of the change in law. As the disputes enunciated in Sub-section (3) including Clause (e) are to be read as ejusdem generis and cannot be separated with the preceding clause, the provision of Clause (e) as it stood before amendment in 1976 Act does not hold the field in the present case, by the amendment of Clause (e) of amending Act of 1981.

9. For the reasons stated above, we find that in view of the amending Act of 1981 by substituting Clause (e) of Sub-section (3) of Section 19 of the Act, the Legislature narrowed down the controversy and the ratio of the Full Bench decisions cited above are not applicable to the present case and clearly distinguishable in view of our findings. Thus there is no substance in the arguments advanced by the learned counsel for the appellants that the case be referred to the Collector (Agrarian) for determination relating to the land in dispute in the present case. The appeal is, therefore, dismissed and the judgment and decree passed by the learned single Judge impugned in this Letters Patent Appeal are confirmed. However, in the circumstances of the present case, we direct the parties to bear their own costs.


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