KRISHAN LAL Vs. DHANI RAM
HIGH COURT OF JAMMU AND KASHMIR
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(1.) THIS civil revision is against the order dated 13.11.97 passed by the
(2.) ND Civil Subordinate Judge, Jammu. In the suit, plaintiffs respondents challenged the agreement executed between the defendants and one Mst.
Ananti Devi on March 13, 1992 in respect of agricultural land
comprimising Kh, No. 494 measuring 5 kanals situated in village Ambaran
Tehsil Akhnoor which was authenticated by the Tehsildar Akhnoor. In terms
of this agreement Mst. Ananti Devi admitted that the
defendants -petitioner herein were in occupation of the suit land
comprising Kh. No. 481 measuring 7 kanals 19 marlas and Kh. No. 494
measuring 5 kanals as tenants in Khariff, 1971. On the basis of agreement
Tehsildar passed an order that parties have entered into agreement in
terms of which no levy was payable to Mst. Ananti Devi, owner of the suit
land. This agreement is purported to have been executed and authenticated
in presence of plaintiff -respondents, who is said to have affixed his
2. The agreement was challenged in the suit on the ground that it has been executed without his knowledge and only to
deprive him of his rights over the land measuring 5 kanals comprising in
Kh. No. 494 measuring 5 kanals which he purchased from Mangal Singh its
owner vide sale deed registered by Sub -Registrar, Akhnoor on 26.7.61.
This land according to him, had been continued to be in his possession.
The petitioners challenged the maintainability of the suit on the ground
that the suit land has been in their possession since 1957 -58 and it has
already vested in the State u/s of the Agrarian Reforms Act. The
agreement impugned, it is further pleaded was only with respect to
payment of levy as the same is permissible u/s 12 of the Agrarian Reforms
Act. The suit was, therefore, barred u/s 25 of the Agrarian Reforms Act.
The trial court framed four issues. While framing the issues the learned
court passed the following order on 16.7.1996.
"1. Whether the suit is not maintainable as it is barred by Section 12 and 25 of Agrarian Reforms Act? OPD. 2. Whether the cause of action has accrued to the plaintiff against the defendant? OPD 3. Whether the suit is nor properly verified and if so, what is its effect? OPD 4. Whether the suit is not properly valued? OPD. 5. Relief.
Issues mentioned above have been noted by the counsel for the
parties. Issue No. 1 has been treated as preliminary issue and as such
required to be decided first. Parties are directed to deposit the diet
expenses of the witnesses alongwith the list of witnesses if they want to
seek the assistance of the court in summoning the witnesses within 15
days. File shall come up for arguments on issue no. 1 on 6.8.96".
(3.) IT appears Presiding Officers who framed the issues has either no occasion to read O. 14 and if he has ever read the provision, he never
understood its mandate. What is painful is that he does not seem to have
elementary knowledge about the pleadings and framing of issues. It needs
hardly to be reiterated that issues arise when material preposition of
fact or law is affirmed by one party and denied by the other. A bare
perusal of O. 14 would have put him on the right track that issues are of
two kinds (a) issues of fact (b) issues of law. Moreover, all the issues
framed by the court are issues of law which had to be decided on the
basis of averments made in the plaint. Yet only issue no. 1 was directed
to be tried as preliminary as if others could be decided only on the
basis of evidence. Not only this, even on issue no. 1 Presiding Officer
gave parties time to deposit diet expenses of the witnesses when the
issue is purely of law requires no evidence. How the issues are to be
decided is provided in Ruie -2 of 0.14 which reads as under: -
"2. Court to pronounce judgment on all issues - 1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall subject to the provisions of sub -rule (2) pronounce judgment on all issues. 2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to - a) the jurisdiction of the Court or b) a bar to the suit, created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue".
A little effort to take out bare Act from the shelf and read it before passing the impugned order would have put him on the right track,
but that perhaps is the irony that some officers do not like to be
informed of the legal position at the time of settlement of issues which
is a very important event towards the further progress of the suit. But
what followed after the order -dated 13.1.97 was passed by Shri. D.C.
Sagotra is still worse because after holding that the suit is
maintainable he directed the plaintiff to lead evidence on the remaining
issues which are all issues of law. This is nothing but total
non -application of mind and lack of understanding of the elementary
principles of law. It is this casual approach by such officers which
results in avoidable delay of cases which can be decided at the threshold
under CTR -11 of the Code of Civil Procedure. This failure, to a large
extent contributes to the delay in resolution of civil cases. In some
cases failure to frame proper issues vitiates the decision and in such a
situation de -nove trial would alone be the answer. This is how the delay
takes place in the resolution of dispute. A Sub -Judge is fairly senior
officer and as such indifferent approach or lack of understanding of law
cannot be expected from him. He has to give better account of himself
that what is noticed in this case. This is with regard to the settlement
of issues. So far so good. But what is surprising is that the learned
Sub -Judge who decided the case (Sh. D.C. Sagotra) has failed to
understand the controversy and his reference to the Full Bench decision
of this court in Jagtee vs. Badri (1979 KLJ 172) and Full Bench decision
of this court in 1986 KLJ 170 bear testimony to the effect that he has
not understood the law laid down and the ratio of the decision. He
appears to be of the view that title of the plaintiff has first to be
established in this case and thereafter the matter referred to Collector
to decided the factum of possession, what he failed to understand is that
the agreement was with regard to the payment of levy. Such an agreement
could be executed between ex -owner and the prospective owner by an
agreement duly registered under the J&K Registration Act or authenticated
by the Revenue Officer. Section 12 of Agrarian Reforms the Act reads as
"12. Private agreement - Where an ex -owner of land, or if such ex -owner had an intermediary under him prior to the first day of May 1973, such ex -owner and such ex -intermediary jointly, and the prospective owner of such land by an agreement in writing, duly registered under the J&K Registration Act. 1977 or authenticated by a Revenue Officer of a class not lower than a Tehsildar. a) respectively acknowledge receipt and payment of an agreed amount, and/ or b) admit having appointed such land as between themselves in an agreed manner and having entered into possession of their respective shares in accordance there with: Such payment or such appointment of land or both, as the case may be shall be given due effect and shall relieve the state of its liability to make payment to such person and also relieve the prospective owner of his liability to pay levy to the State. Provided that in case of appointment of land the ex -own landlord shall not have in his share more land than could be resumed by him under clause (f) of sub -section (2) of Section 7, if he were otherwise eligible to resale land,
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