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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mufti Baha-ud-Din Farooqi, J.
Mohinder Pal - Appellant
Versus
Kailash Devi - Respondent
Civil Revision No. 81/1978
Decided On : 19 March, 1980
JAMMU AND KASHMIR AGRARIAN REFORMS ACT, 1976 - SECTION 19, 42(2) - EFFECT ON PENDING CASES - CHANGE OF REMEDY - TRANSFER OF CASES TO COLLECTOR (AGRARIAN) - DISPUTES RELATING TO RIGHT TO POSSESS LAND - ADVERSE POSSESSION - JURISDICTION OF CIVIL COURTS.
Fact of the Case:
The case involved the question of the effect of the Jammu and Kashmir Agrarian Reforms Act, 1976 on pending cases in civil and revenue courts, particularly in relation to disputes involving the right to possess land.
Finding of the Court:
The court held that Section 19 of the Act, which provides for the transfer of certain cases to the Collector (Agrarian), applies to disputes between a recorded owner or intermediary and the party in possession, where the right to possess is claimed or disputed, including cases where adverse possession is pleaded. The court also held that where the dispute does not relate entirely to the right to possess, the civil court should refer the question of whether the disputed land has devolved upon one party or the other or upon the State to the Collector (Agrarian) for adjudication.
Issues: 1. Whether Section 19 of the Jammu and Kashmir Agrarian Reforms Act, 1976 applies to disputes involving the right to possess land, including cases where adverse possession is pleaded? 2. Whether the civil court should first determine other disputes before referring the dispute concerning the right to possess to the Collector (Agrarian)?
Ratio Decidendi: 1. Section 19(3)(e) of the Act contemplates suits and proceedings between a recorded owner or intermediary, on one hand, and the party in possession, on the other, in which the right to possess is claimed or disputed, and that such suits and proceedings would include suits and proceedings in which the party in possession has pleaded adverse possession as a ground of claim or defence. 2. The power and jurisdiction to determine whether the disputed land has vested in one party or the other or in the State with effect from the appointed date belongs to the Collector (Agrarian).
Final Decision: The court allowed the revision petition, set aside the impugned order, and directed the lower court to make a fresh order in accordance with law, keeping in view the observations made in the judgment.
In the new Act and the rules thereunder applying to the pending actions, the resultant effect is that a pending actions will continue or collapse according as it survives or not the new Act and the rules made thereunder. That will generally depend on the facts and circumstances of each case, the relief claimed therein, and the particular provision of the new Act and the rules thereunder having bearing on it, Broadly speaking a pending action will survive if by or under the New Act, the right be not acquired, and, even if not so acquired ; it be not lost or destroyed either ; and the remedy too be not barred or changed. It will not survive if, in consequence of the new Act the right be acquired, lost or destroyed and even if not so acquired, lost or destroyed the remedy be barred or changed.
2. The principle will equally apply under the present Act. On this principle, a pending action will collapse if, in consequence of the present Act the right claimed has been acquired, lost or destroyed and even if not so acquired, lost or destroyed, the remedy is barred or changed. Section 42(2) provides as under: -
(2) All applications, suits and proceedings pending before any Revenue Officer, Civil or Revenue Court, any authority acting under the Jammu and Kashmir consolidation of Holdings Act, 1962 or the Government on the date of the commencement of this Act under any of the provision; of the Acts mentioned in sub-section (1) shall, so far as these are inconsistent with the provisions of this Act, abate.
3. Here are instances of the cases where the remedy has been taken away. Section 19 provides instances of changes in the remedy. Section 19 so far as relevant provisions as under: -
3) The following applications, suits and proceedings shall be disposed of by a Collector: -
(a) proceedings under section 56 of the Jammu and Kashmir Tenancy Act, Samvat, 1980 ;
(b) proceedings under sub-section (2) of section 68-A of the Jammu and Kashmir Tenancy Act, Samvat 1980 ;
(c) proceedings under section 24 of the Jammu and Kashmir Big Landed Estates Abolition Act,. Samvat 2007 ;
(d) application by an owner or an inter-median, that the person, who claims to be cultivating the land as a tenant is not a tenant but a trespasser ;
(e) all other cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediary.
(4) Any application, suit or proceeding of the kind mentioned in sub-section (3)- pending at the commencement of this Act before a Revenue Officer subordinate to a Collector or any Civil or Revenue Court, shall be transferred to the Collector having jurisdiction in the place in which the land in dispute is situate.
4. I am concerned in this case with clause (e) of sub-section 3 only. That clause fell for consideration before a Full Bench in Jagtu Versus Badri and ors. (JKLR 1979 Supplement part page 1). The Bench observed :
The words other cases of dispute are of wise amplitude and must cover all cases in which right to possess the land is claimed or disputed. These words must receive
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