Decided on May 24,1999

Ram Rattan Sharma Appellant
Station Commander Military Estates Officer, S H O Nagrota Respondents


ARUN KUMAR GOEL, J. - (1.) THIS appeal is directed against the judgment and decree dated 18 -08 -1994 passed by the learned IInd Additional District Judge, Jammu in civil file No. 30 of 1992. By means of impugned judgment and decree, lower appellate court below has held that appeal filed by the appellant is incompetent for want of filing of decree and consequently dismissed the same.
(2.) SHRI Thakur learned counsel for the appellant submitted that there is no need for certified copy of the decree as trial court has only rejected the plaint, therefore judgment/order passed by the trial court itself was decree under law. It was further urged by Shri Thakur that decision of preliminary issue framed by the trial court does not tantamount to dismissal of the suit which is infact in the rejection of plaint for all purposes. These pleas have been controverted by Shri Bhat as according to him appeal filed by the appellant before 1st Appellate Court was incompetent under rules of this court governing institution of appeals as well as in accordance with provision of Code of Civil Procedure.
(3.) WITH a view to appreciate the respective contentions urged by learned counsel for the parties, facts of the case giving rise to this appeal are to be noticed. Suit for declaration and injunction came to be filed by the appellant before trial court claiming that he is owner of the land measuring 14 marlas situate in village Nagrota, Jammu bearing Khasara No. 398 min and permanent prohibitory injunction restraining the respondents from interfering in any manner over the land in said Khasara No. Case of the plaintiff was that he is in possession of the land since 1953 and after coming into force, J&K Agrarian Reforms Act he became owner when mutation No.510 in that behalf was attested. Reliance was also placed by the appellant in support of his claim on girdawari from Rabi 1984. Since the respondent threatened to remove the structure on 02 -06 -1987 and then forcibly occupy the land, as such it gave cause of action to the appellant for filing the suit, wherein relief in terms aforesaid was prayed for. This suit was contested and resisted by the respondent. Amongst other things it was pleaded that section 10 of Public Premises (Eviction of unauthorised occupants) Act 1971 operates as bar, as order of eviction was passed against the appellant under sub section 5 of this Act. On matter having been taken in appeal before Distt. Judge, Jammu vide file No. 20/Appeal at the instance of the appellant, it came to be dismissed on 28 -05 -1987. So far action against the appellant is concerned it was initiated in accordance with law as well as powers vested under section 6 of the Act (supra). Thus it was prayed for dismissal of the suit.;

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