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2024 Supreme(Online)(J&K) 1218
HIGH COURT OF JAMMU AND KASHMIR
HON’BLE MR. JUSTICE SANJAY DHAR, J
J&K Housing Board through its Managing Director – Appellant
Versus
Smt. Harbans Kour Wd/o Shri Karan Singh – Respondent
CSA No. 19/2010
For the Appellants/Petitioners: Mr. S. S. Nanda, Sr. AAG
For the Respondents:Mr. Anil Mahajan, Advocate
The jurisdiction of Civil Courts is barred under Section 44 of the J&K Housing Board Act in cases involving eviction or damages related to Board properties, with notices serving primarily to avert unnecessary lawsuits.
Headnote:(A) J&K Housing Board Act, Section 44 - Bar of jurisdiction of Civil Courts - The Civil Court's jurisdiction is barred over suits for eviction or damages in relation to Board premises. Notice under Section 57 is also mandatory, yet the primary aim of such notice is to avert litigation. Failure to serve notice does not automatically render the suit non-maintainable if substantial compliance is demonstrated. (Paras 11, 20, 22, 23)
(B) Maintainability - The appellate court found that the issues regarding notice and jurisdiction are mixed questions of fact and law, needing a full trial for resolution. (Paras 7, 8, 16)
Facts of the case:
Plaintiffs sought injunction against the Housing Board, claiming ownership of land purchased in 1988, while the Board alleged that this land was part of its acquired property. (Paras 2, 4)
Findings of Court:
The appellate court upheld its findings regarding the maintainability of the suit, emphasizing the necessity of considering mixed questions at trial. (Paras 8, 24)
Issues: Whether the suit was maintainable given the jurisdictional bars of the J&K Housing Board Act.
Ratio Decidendi: The trial court's dismissal for lack of notice was overturned; obligations under the Act aim primarily to facilitate conflict prevention and judicial economy. (Paras 22, 24)
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. jurisdictional bar of civil courts established under section 44. (Para 1 , 6 , 8 , 10) |
| 2. plaintiffs claim ownership while defendants allege encroachment. (Para 2 , 4 , 13) |
| 3. purpose of notice under the act for conflict prevention. (Para 20 , 22 , 24) |
JUDGMENT
1) This appeal is directed against judgment dated 03.05.2010 passed by the learned Additional District Judge, Jammu (hereinafter to be referred as “the 1st Appellate Court”), whereby an appeal filed by the respondents against order dated 20.02.2010 passed by the learned Sub Judge (CJM), Jammu (hereinafter to be referred as “the trial court”) has been allowed and the judgment passed by the trial court has been set aside.
2) The facts leading to the filing of the instant appeal are that respondents/plaintiffs had filed a civil suit against appellant/defendants before the trial court seeking permanent prohibitory injection restraining the defendants from interfering ino the land measuring 19 marlas, comprised under survey No. 314 min situated at Thangar Tehsil Jammu. It was pleaded by the plaintiffs that they have purchased the land in question by virtue of a sale deed dated 18.08.1988 and a mutation bearing No. 424 stands attested in favour of the plaintiff, Karam Singh. According to the plaintiffs, they have set up a Saw Mill on the land in question after obtaining licence from the competent authority. It was alleged in the plaint that the defendants, particularly defendant No. 3-J&K Housing Board is threatening to interfere in the possession of the plaintiffs over the suit property, which compelled the plaintiffs to file a suit for injunction against the defendants on 26.09.1997. The said suit was dismissed as withdrawn with liberty to the plaintiffs to file a fresh suit. Accordingly, the plaintiffs filed another suit, which is subject matter of the instant appeal seeking permanent prohibitory injunction against the defendants.
3) The defendants, appellant herein contested the suit by filing its written statement, in which it was claimed that the land in respect of which the plaintiffs claim their ownership is subject matter of award, where-under the appellant- Housing Board has acquired the said land in the year 1982. According to the defendants, the plaintiffs are the enc0roachers and they have encroached upon the land belonging to the Housing Board. It has been pleaded that out of the total land of 59 kanals and 9 marlas under khasra No. 314, the Housing Board has acquired 34 kanals and 5 marlas of land by virtue of award dated 30.11.1981. It has been pleaded that the area of land claimed by the plaintiffs falls on the western side of the National Highway Bye-pass, which is a part of the acquired land, whereas rest of land under khasra No. 314 has come under the National Highway Bye-pass and some portion of it is located on the northern side of the National Highway. It has been further submitted that land in question has been kept vacant by the respondent-Housing Board for developing it into a green belt parallel to the National Highway, but the same has been encroached upon by the plaintiffs.
4) Besides, filing reply on merits, the defendants in their written statement raised preliminary objections to the maintainability of the suit. It was submitted that the suit is not maintainable as no notice under Section 57 of the J&K Housing Board Act has been issued or served by the plaintiffs upon the appellant-Housing Board before filing the suit. It has also been contended that the suit is not maintainable as jurisdiction of civil Court is barred under Section 44 of the J&K Housing Board Act. Preliminary objection with regard to the maintainability on the ground of non-payment of proper court fee was also raised by the defendants.
5) Vide order dated 19.04.2007, the learned trial court framed the following issues:
Issue No. 1. Whether the notice issued by the plaintiff upon defendants is in accordance with provisions of Section 57 of J&K Housing Board Act
