QADIR SHEIKH Vs. SALAM SHEIKH
LAWS(J&K)-1982-5-7
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 15,1982

Qadir Sheikh Appellant
VERSUS
Salam Sheikh Respondents

JUDGEMENT

- (1.) THIS revision arises out of a suit for declaration and partition of certain lands including Grahats situated in Harwan Tehsil, Srinagar. The defendant resisted the suit, inter -alia on the ground that the civil court had no jurisdiction to try the case. The defendants contention was two fold Firstly that he had pleaded adverse possession and as such the suit was liable to be transferred for disposal to the Collector under Section 19 (3) (e) of the Jammu and Kashmir Agrarian Reforms Act. (Shortly "the Act.") Secondly, that in any event the suit included the relief for partition which could not be granted by civil court as the land involved was agricultural land. The trial court repelled both these contentions holding, firstly, that the defendants contention that he had pleaded adverse possession in the written statement was wrong, and, secondly, that the principal relief claimed in the suit being the relief for declaration, the civil court had jurisdiction to try the suit and decide the question of title. Of these premises, the trail court decide the preliminary issues in favour of the plaintiffs and against the defendants - The learned Sub Judge ( Mr. M. Y. Qawoosa) has failed to apply his mind to the facts of the case and the law applicable thereto. In the plaint, the case of the plaintiffs was that the parties were the joint owners occupiers of the disputed property. In defence it was pleaded that the defendant is the sole owner of the property and continues to be in the exclusive possession thereof since the last settlement. In order to decide the question of jurisdiction, the important question that inevitably arose, was whether the disputed property fell within the ambit of the expression "land" as defined in the Act, and, further whether it had vested in one party or the other or in the State with effect from the appointed date. These questions fell for determination within the exclusive jurisdiction of the Collector (Agrarian) under Section 25 of the Act. Before deciding the question of jurisdiction, the court, therefore, ought to have appropriately referred these questions for determination to the Collector and stayed its hands to the matter till such determination became available. It has not done so. On the other hand, the court has mis -read the facts and law and carved out a logic of its own to come to the conclusion that the case was triable by a civil court. The order is completely mis -conceived and cannot be sustained in law. Allowing this revision, I set aside the order and direct that the trial court shall proceed in the matter and deal with the questions of jurisdiction keeping in view the observations made above. The party present is directed to appear before the court below on 5th of June, 1982. A copy of this order shall be forwarded to Mr. M. Y. Qawoosa for his information.;


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