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Peer Habib Ullah Vs. Khazir Hajam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. No. 152 of 1978
Judge
Reported inAIR1981J& K29
ActsJammu and Kashmir Agraian Reforms Act, 1976 - Section 19(3)
AppellantPeer Habib Ullah
RespondentKhazir Hajam and ors.
Appellant Advocate N.A. Hakak, Adv.
Respondent Advocate A.M. Bhat, Adv.
DispositionRevision allowed
Cases ReferredIn Mohinder Pal v. Mst. Kailash Devi
Excerpt:
- .....because there was a controversy about the nature of the land; one party asserting that it is land as defined in the act and the other pleading that it is not land as so defined. that question too falls within the exclusive jurisdiction of the collector (agrarian). for, the matter concerning settlement, which falls within the exclusive jurisdiction of collector (agrarian), carries with it the power to determine the incidental question whether the land in dispute is land as defined in the act or not, being a question upon the determination of which depends his power to make the settlement under the act. in the circumstances, i am not impressed by the argument of the learned counsel for the petitioner that the reference to the collector would be incompetent so long as the court did.....
Judgment:
ORDER

1. In Mohinder Pal v. Mst. Kailash Devi, 1980 Kash LJ 150, it has been held by this Court that Section 19 (3) (e) of the Agrarian Reforms Act (for short 'the Act') contemplates suits and proceedings between a recorded owner or intermediary on one hand and the party in possession on the other in which the right to possess is claimed or disputed and that such suits and proceedings would include suits and proceedings in which the party in possession has pleaded adverse possession as a ground of claim or defence. All cases falling in the category which are pending in Civil or Revenue Courts or before Revenue Officers are liable to be transferred for disposal to the Collector (Agrarian) concerned. In the present case, the dispute is about title and possession; each party claims to have both title and possession to the exclusion of the other. Clearly the conditions of Section 19 (3) (e) are not satisfied. The lower Court was not, therefore, justified in holding that the case was liable to be transferred for disposal to the Collector (Agrarian) concerned. That does not mean that the Court could proceed with the trial without anything else. The suit could collapse or continue depending upon whether the right claimed in the suit had collapsed or survived the Act. That question would, in its turn, depend upon the question whether, in consequence of coming into force the Act of 1976, the land in dispute has to be settled in the name of one party or the other or in the name of none of them. The power and jurisdiction to determine this question vests in Collector (Agrarian). Therefore the lower Court ought to have referred for determination to the Collector (Agrarian) the following question, namely :--

'Whether in consequence of coming into force of Agrarian Reforms Act, 1976, the land in dispute has to be settled in the name of one party or the other or in the name of none of them?'

and stay its hands in the matter till the finding was received.

2. The court was not prevented from making such reference simply because there was a controversy about the nature of the land; one party asserting that it is land as defined in the Act and the other pleading that it is not land as so defined. That question too falls within the exclusive jurisdiction of the Collector (Agrarian). For, the matter concerning settlement, which falls within the exclusive jurisdiction of Collector (Agrarian), carries with it the power to determine the incidental question whether the land in dispute is land as defined in the Act or not, being a question upon the determination of which depends his power to make the settlement under the Act. In the circumstances, I am not impressed by the argument of the learned counsel for the petitioner that the reference to the Collector would be incompetent so long as the Court did not determine whether the disputed land was land as defined in the Act or not.

3. For these reasons, I allow this revision petition and set aside the impugned order. The lower Court is directed to refer the question mentioned above for determination to the Collector (Agrarian) concerned and ask him to submit his finding within a period of 2 months and meanwhile stay its hands in the matter. There shall be no order as to costs. The parties are directed to appear in the Court below on 12-0-1080.


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