RAM RATTAN SHARMA Vs. STATION COMMANDER MILITARY ESTATES OFFICER, S H O NAGROTA
HIGH COURT OF JAMMU AND KASHMIR
Ram Rattan Sharma
Station Commander Military Estates Officer, S H O Nagrota
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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
(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
(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
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