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IN THE HIGH COURT OF JAMMU AND KASHMIR
Kanwar Sain,B.R. Sawhny,Syed Hussain, JJ.
Ramzan & Ors. - Appellant
Versus
Karim Dar - Respondent
Civil Appeal No. 260/1985 (Svt.)
Decided On : 24th Chet Of 1985 (Svt.)
The suit was beyond the jurisdiction of the Civil Courts vide Sections 41 and 161 of the Land Revenue Regulation. This is another instance of how the Civil Courts are ignoring law and taking cognizance of suits triable by Revenue Courts only.
Fact of the Case:
Razaq (2) died sonless, while Khaliq (1) his father was alive. Ordinarily the Revenue officers framed a mutation No. 173/18 in 1965 in order to make the necessary Dakhil Kharij i.e., replacing the name of the deceased by that of his heir. The report on this mutation shows clearly that it was Khaliq (1) himself who presented Karim (6) defendant-respondent his youngest son as heir and adopted (Parwardah) son of Razaq (2) and desired that the holding be entered in the name of Karim (6). All the Zamindars of the village testified to Karim having been adopted by Razaq. When the said mutation was put upto a Naib-Tahsildar for decision on 13th Poh 1966, he preferred to enter the name of Razaqs widow Mussammat Rahmi without giving any reason. The Naib-Tahsildar was not within his bounds to do so when Karim (6) was admitted by the village gathering including Khaliq (1) himself to have been adopted by Razaq. In doing so he seems to have been actuated by the thought that Mussammat Rahmi would receive better care and better treatment. He ordered the holding to be entered in her name for her life time only and at the same time entered Karim (6) as her Sarbarah and adopted son. This arbitrary action of the Naib entailed another transfer as subsequently Mussammat Rahmi did apply for mutating the said holding to Karim and a File No. 101/139 was compiled and submitted to His Highness through proper channel of Revenue officers from Tehsildar up to the Revenue Minister. On the recommendation of the said officers His Highness was pleased to grant the petition and sanction the mutation of the land in the name of Karim the adopted son vide mutation No. 65, dated 23rd Katik 1970. It should be noted here that the said file is reported to have been destroyed in the record-room.
Finding of the Court:
The suit was evidently beyond the jurisdiction of the Civil Courts vide Sections 41 and 161 of the Land Revenue Regulation. This is another instance of how the Civil Courts are ignoring law and taking cognizance of suits triable by Revenue Courts only.
Issues: Whether the suit was within the jurisdiction of the Civil Courts.
Ratio Decidendi: The suit was primarily for the possession of 33 Kanals 4 Marlas of land and the right and title asserted by the plaintiffs for the claim was that they were the heirs at law of Razaq Dar deceased and that the defendant was only entitled to no more than l/4th share of the inheritance. The defendant on the other hand asserted his right and title to the whole of the inheritance and he based his defence on his alleged adoption. Supposing then the plaintiffs had claimed only relief marked (alaf) in paragraph 10 and not the reliefs (dal) and (jim) of paragraph 10 of their plaint, and omitted the last line of the heading in the plaint viz:-Tansikh Intikal number 60 mavarkha 23 Katik 1980 then could it be argued that the case was exclusively cognizable by a Revenue Court or could any Court except a Civil Court entertain it? I am quite sure it would not be contended that such a suit would have been cognizable by a Revenue Court. For such a suit for possession on the footing of inheritance or in which the plea of adoption is to be decided, is nowhere mentioned as exclusively cognizable by Revenue Courts either in Section 161 of the Land Revenue or Section 77 of the Tenancy Regulation. And Section 9 of the Civil Procedure Code makes such suits cognizable by Civil Courts.
Final Decision: The suit was beyond the jurisdiction of the Civil Courts vide Sections 41 and 161 of the Land Revenue Regulation. This is another instance of how the Civil Courts are ignoring law and taking cognizance of suits triable by Revenue Courts only.
Khaliq Dar (l)
Razaq (2) Qadus (3) Ismail (4) Qadir (5) Karim (6)
Karim (6)
adopted. Ramzan (7) Akram (8)
The brief story of the case is that Razaq (2) died sonless, while Khaliq (1) his father was alive. Ordinarily the Revenue officers framed a mutation No. 173/18 in 1965 in order to make the necessary Dakhil Kharij i.e., replacing the name of the deceased by that of his heir. The report on this mutation shows clearly that it was Khaliq (1) himself who presented Karim (6) defendant-respondent his youngest son as heir and adopted (Parwardah) son of Razaq (2) and desired that the holding be entered in the name of Karim (6). All the Zamindars of the village testified to Karim having been adopted by Razaq. When the said mutation was put upto a Naib-Tahsildar for decision on 13th Poh 1966, he preferred to enter the name of Razaqs widow Mussammat Rahmi without giving any reason.
The Naib-Tahsildar was not within his bounds to do so when Karim (6) was admitted by the village gathering including Khaliq (1) himself to have been adopted by Razaq. In doing so he seems to have been actuated by the thought that Mussammat Rahmi would receive better care and better treatment. He ordered the holding to be entered in her name for her life time only and at the same time entered Karim (6) as her Sarbarah and adopted son. This arbitrary action of the Naib entailed another transfer as subsequently Mussammat Rahmi did apply for mutating the said holding to Karim and a File No. 101/139 was compiled and submitted to His Highness through proper channel of Revenue officers from Tehsildar up to the Revenue Minister. On the recommendation of the said officers His Highness was pleased to grant the petition and sanction the mutation of the land in the name of Karim the adopted son vide mutation No. 65, dated 23rd Katik 1970. It should be noted here that the said file is reported to have been destroyed in the record-room.
Against the above two mutations of the years 1966 and 1970, the appellants (4, 5, 7 and 8 in the table above) i.e., the brothers and the nephews of Razaq (2) never objected. Thereafter when Khaliq (1) the father of all who was also a Lambardar died and a file was ordinarily compiled to fill up the post of Lambardar. The whole village unanimously (vide the statement of Zamindars dated 3rd Poh 1975), testified in clear words that Karim was the Parwardah (adopted son) of Razaq (2) the eldest son of the deceased Lambardar. I attach greater weight to and place greater reliance on statements made in the congregation of villagers on a village site where the deponent is exposed to the contradiction by the congregation. The Wazir appointed him as Lambardar holding him the adopted son of Razaq admittedly and beyond all doubt. An appeal was preferred to the Governor who upheld the order of the Wazir and likewise held Karim as adopted son of Razaq. On second appeal the Revenue Minister too, as has been quoted by the learned District Judge in his judgment of 26th Phagan 1984 upheld the appointment of Karim on the ground of his being an adopted son.
In all these proceedings of the appointment of Lambardari and the mutations of land referred to above, the plaintiff-appellants never contested the adoption, but all they pleaded was that Karim as an adopted son was not a rightful claimant for the post of Lambardari in preference to elder brothers. Thus it will be seen that the plaintiff-appellants did not challenge the first mutation of land of 1966 and the second mutation of 1970 but remained silent up to Sawan 1982.
In Sawan 1982 the appellants seem to have fallen in the hands of some petition-writer and legal practitioner and been encouraged by them to bring a suit for possession and cancellation of records mixing two reliefs of different limitations and claiming 3/4 of the holding for themselves and allowing the defendant Karim (adopted son 1/4 only as a 4th
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