AHED & ORS. Vs. KAILASH RAM & ORS.

JUDGEMENT

(1.) The order of Mr. Justice Masud Hasan, dated 12th Sawan, 1997, referring the case to a larger Bench is as follows.-

(2.) This is defendants' second appeal arising out of the following circumstances:- On the 5th of Baisakh 1994 the respondents plaintiffs filed a suit in the court of Munsiff Sopore for possession of a piece of land numbering 239/2 and measuring 1 Kanal and 15 Marlas in area, in the village Hawalhama, Tehsil Uttarmachipora in the District of Baramulla. This plaint alleged that in the course of settlement operation in the year 1982 the plaintiffs' name was mutated on the plot in suit, the defendants' objection thereto having been disallowed both in the first instance and in the appellate stage. The plaint further alleged that the defendants had not been paying any Lagan for all these years and that they have been maintaining it in their possession without any legal title.

(3.) The defendants in their written statement, it appears, before the civil court took up a plea that because of the entries in the Revenue Papers the suit raised a question of relationship of landlord and tenant between the parties and that therefore the proper forum for its decision was the Revenue Court. On this the Munsiff passed an order to the effect that the plaint should be presented in the proper court. On the 24th of Assuj 1994 the same plaint was presented on the Revenue side in the court of Revenue Assistant 1st Class Baramulla. In the court of this Assistant Collector the defence taken on behalf of the defendants was (a) that the suit was barred by time, (b) the entries in the Revenue Papers were collusive and (c) that the defendants' possession was proprietary and started from 1979 and was all along adverse to the plaintiffs. On this, relevant issues were struck and there was an additional issue of compensation to be paid to the defendants in case of ejectment. This last obviously arose from the plea taken in the written statement that the land originally was lying fallow and that the defendants had to prepare it after bringing it into their possession.