Mohammad Younis Bhat And Ors vs Mohammad Ibrahim Bhat And Ors
2021 Latest Caselaw 368 j&K/2

                 HIGH COURT OF JAMMU AND KASHMIR
                           AT SRINAGAR

                                                                    CR No. 33/2017

Mohammad Younis Bhat and Ors.                                .....Petitioner(s)

                        Through: Mr. Mutahir Ahmad, Advocate
     V/s
Mohammad Ibrahim Bhat and Ors.                             ..... Respondent(s)

                        Through: Mr. Rizwan-ul-Zaman, Advocate


CORAM:
           HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                    ORDER

31.03.2021

1. In this revision petition, challenge is thrown to the order dated 27.07.2017,

passed by learned Munsiff, Qazigund, (for short "Trial Court") in Civil Suit

titled Mohammad Ibrahim Bhat and Ors. v. Mohammad Younis Bhat and Ors.,

whereby Trial Court after rejecting the objections of the defendants regarding

the maintainability of the suit, held that the Court has jurisdiction to try the

same and directed the case to be listed for evidence of the plaintiffs.

2. The main plea of the defendants before the Trial Court was that the suit of the

plaintiffs was barred under Section 25 of Agrarian Reforms Act, which

objection was rejected by the Trial Court.

3. To consider the grounds taken up by the petitioners in this revision petition, it

is necessary to give brief facts of the case.

4. A suit was filed by Mohammad Amin Bhat against Gani Bhat, seeking decree

for declaration and injunction in respect of land measuring 2 Kanals

comprising Khasra no. 394/150, situated at Khrewan Lassipora, Tehsil

Kulgam. The said suit was decreed in terms of the compromise arrived at

CR No. 33/2017

between the parties as is evident from the copy of decree sheet dated

06.05.2003, and plaintiff therein was declared as owner, and defendant was

restrained from interfering in the said property. The decree passed by the Civil

Court on the basis of said compromise came to be challenged by the sons of

Abdul Gani Bhat.

5. The Trial Court, in the suit, passed order impugned by observing that the

decree was obtained by practicing fraud. The record on the file would also

reveal that after filing the suit, defendants/petitioners herein appeared before

the Court and made an application under Order VII Rule 11 (d) of the Code

of Civil Procedure, for rejection of plaint. The Trial Court vide order dated

26.08.2010, rejected the application and asked the defendants to file written

statement. They filed written statement, in which they raised preliminary

objection with regard to maintainability of the suit. The preliminary issues

were raised and framed along with other factual issues by the Trial Court.

While dealing with the maintainability and jurisdiction of Civil Court, the

Trial Court rejected the preliminary objection raised by the defendant, holding

that the suit was maintainable and directed the plaintiffs to adduce evidence.

It is this order of the Trial Court, whereby preliminary objection raised

regarding maintainability and jurisdiction was rejected, is under challenge in

this revision petition.

6. Learned appearing counsel for the petitioners submits that the order impugned

is bad as the matter in controversy was triable by the authority under Agrarian

Reforms Act and the jurisdiction of Civil Court was, thus, barred.

7. In the above backdrop, a question arises as to whether an Authority under the

Agrarian Reforms Act, can declare null and void a decree passed by the Civil

Court on the basis of compromise on the ground of being obtained

CR No. 33/2017

fraudulently. On going through the provisions of the Act, such power does not

lie with the authority under Agrarian Reforms Act. The Authority under

Agrarian Reforms Act will deal with and decide the issues which arise under

the provisions of the said Act. Here in this case, a decree has been passed by

the Civil Court on the basis of compromise between the parties. The plaintiffs/

respondents challenged the decree on the ground that the same was obtained

fraudulently. Such a suit cannot be tried and decided by Revenue authority,

but is to be and can be exclusively tried by Civil Court where suit has been

filed. Trial of such matters do not fall within the purview of bar as has been

created under the provisions of Section 25 of the Agrarian Reforms Act.

8. In support of averments made in petition, the learned appearing counsel for

petitioners has referred to judgments rendered in the cases of Subash Chander

Sharma and Ors. v. Shilpi Mahajan and Ors, reported in 2016 (1) JKJ 208,

Mumma Malla v. Mohamad Padroo, reported in 1984 AIR (J&K) 28, Randhir

Sing v. Gian Chand and Anr, reported in 2008 (3) JKJ 512, and Mohammad

Akbar Shah and Ors. v. State and Ors., reported in 2017 (1) JKJ 96, are not

applicable and are distinguishable from the facts and circumstances of the

present and, therefore, would not render any assistance to petitioners.

9. It is also pertinent to mention here that revisional powers under Section 115

of the Code of Civil Procedure can be exercised by the High Court when it

appears to it that the Court subordinate to it had exercised jurisdiction not

vested in it by law or failed to exercise jurisdiction so vested or to have acted

in the exercise of its jurisdiction illegally or with material irregularity or to

have caused failure of justice in a case which has been decided. The grounds

taken in this revision do not fall within the purview of said Section. Thus, the

CR No. 33/2017

revision petition on hand is liable to be dismissed and impugned order does

not warrant for any interference.

10.For the reasons discussed herein above, I do not find any merit in the instant

revision petition and the same is, accordingly, dismissed along with

connected CM(s).

11.Record be sent down.

12.The parties shall appear before the Trial Court on 22.04.2021 and the Trial

Court shall proceed with the matter expeditiously.

(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 31.03.2021 "Manzoor"

CR No. 33/2017 MANZOOR UL HASSAN DAR 2021.04.06 12:45