SAMAD DAR Vs. MOHAMED ISMAIL TANTRARY
HIGH COURT OF JAMMU AND KASHMIR
MOHAMED ISMAIL TANTRARY
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Mufti Baha-Ud-Din Farooqi, Actg. C.J. -
(1.) In a suit for declaration that the sale deed allegedly executed by the plaintiff on 20th Poh, 2009, in favour of the defendant and registered on 21st of Magh, 2009, is a fake document and consequently null and void and inoperative under law, the trial Court of sub-Judge, Judge Small Causes Court, Srinagar, raised the following two preliminary issues:- (1) Is not the suit maintainable in the present form without a prayer for decree for possession? OPD (2) Is the suit hit by the provisions of the Agrarian Reforms Act? O. P. D.
(2.) The trial Court found both the issues in favour of the plaintiff. The argument of the learned counsel for the defendant is that the judgment is erroneous. His first target was the finding of trial Court that a suit for declaration simpliciter would lie and further relief for possession need not be asked for. He submitted that Section 42 of the Specific Relief Act is a clear bar against a suit for declaration where consequential relief can also be asked for. He submitted that the possession is admittedly with the defendant and consequently no suit for declaration would lie unless the plaintiff had also asked for the relief of possession. In reply, it was contended on behalf of the plaintiff that Section 10 of the Agrarian Reforms Act, entitles a mortgagor to seek possession based upon the mortgage from the mortgagee from the appropriate authority nominated in the said Act. The fallacy of this argument lies in the fact that the learned counsel assumes that relationship of the mortgagor and mortgagee subsists between the parties ignoring that he himself has said that there is a sale deed which he wants to avoid on the ground that it was fake. The plaintiff cannot approbate and reprobate. He cannot on the one hand approach the civil court to avoid the sale deed and on the other assume that the sale deed does not exist and approach the Agrarian authorities for possession on the assumption that he is a simple mortgagor. In the circumstances, I am inclined to agree with the counsel for the defendant that the suit for declaration simpliciter was incompetent and that the plaintiff ought to have asked for the consequential relief of possession. The finding to the contrary of the trial Court is clearly erroneous. The trial Court had carved out its own logic to sustain its finding but that logic has neither merit nor substance in it. In view of this finding it is no longer necessary for me to go into the question whether the suit is hit by the provision of the Agrarian Reforms Act, I say so, because once the trial Court comes to the conclusion that the sale deed is null and void and inoperative in law, the question that will naturally arise for consideration would be, whether or not, it would be able to grant the relief for possession on the basis of such finding. It is at that stage that Section 10 would come up for consideration, and if the Court finds that the said section really creates a bar, it would naturally return the plaint to the plaintiff for presentation before the appropriate authority.
(3.) The result, therefore, is that the revision succeeds and is allowed. The judgment of the trial Court is set aside. The plaintiff is, however, allowed to amend the prayer clause in order to include the prayer for possession as also to carry out the incidental amendment in the body of the plaint and submit the amended plaint within three weeks on payment of Rs. 50/- (rupees fifty) as costs. The parties are directed to appear before the trial Court on 28th of May, 1982. A copy of this judgment shall be forwarded to Mr. M.Y. Kawoosa, for his information.;
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