2020 PLP 28 (YLRN)

RAZA ALI KHAN, J.

This appeal has been filed against judgment and decree dated 04.12.2007 passed by learned Additional District Judge, Muzaffarabad, whereby, appeal filed by appellants, herein, has been dismissed. Precise facts of the case are that Raja Muhammad Rizwan Khan and others, respondents, herein, filed a suit for declaration and perpetual injunction against Revenue Department in the Court of Senior Civil Judge, Muzaffarabad on 29.09.2004 regarding land comprising Khasra Nos. 363, 381, 387, 406/1, 426, 426/1, 437, 438, 438/1, 440 and 453 measuring 214 kanal 8 marla situated in village Batmang Tehsil Muzaffarabad. The suit was decreed by the trial Court vide judgment and decree dated 11.10.2004 on the basis of admission of respondents. Feeling aggrieved, appellants herein, filed appeal before Additional District Judge, Muzaffarabad which was dismissed through the impugned judgment and decree dated 04.12.2007. The learned counsel for the parties have filed written arguments which are made part of the filed, hence, need not to be reiterated. I have considered the written arguments filed by the learned counsel for the parties and gone through the record of the case. A perusal of the record reveals that plaintiffs/respondents, herein, filed a suit for declaration and perpetual injunction before Civil Judge Court No.I Muzaffarabad which was decreed by the trial Court on 11.10.2004. In the said suit, the plaintiffs/respondents herein, entered Revenue Department Azad Jammu and Kashmir through Collector Muzaffarabad as defendant. A perusal of the revenue record appended with the file of trial Court, reveals that the suit land was entered as Khalsa land in possession of the State through Forest Department. The plaintiffs neither impleaded Azad Government of the State of Jammu and Kashmir through Chief Secretary nor Secretary Revenue Department and Secretary Forest Department in line of the respondents who were necessary party to be impleaded in line of the respondents because the suit land the entered as Khalsa land in the revenue record, thus, judgment and decree recorded by the trial Court in absence of necessary parties is a nullity in the eye of law. In Civil Appeal No.125/17 titled Azad Government and another v. Mir Mushtaq and others decided on 25.10.2017, the Hon'ble Supreme Court of Azad Jammu and Kashmir in the similar circumstances accepted the appeal by declaring the judgment and decree recorded by the trial Court in absence of necessary party as nullity in the eye of law, consequently remanded the case for fresh decision after impleading necessary parties in line of the respondents in accordance with section 39 of Civil Procedure Code. The relevant observations recorded in para 5 of the judgment are reproduced as under:- "

5. We have heard the learned Advocates representing the parties and have gone through the record of the case. It may be stated that a suit for declaration of perpetual injunction was filed by the predecessor-in-interest of the respondents before the learned Civil Judge/Traffic Magistrate, Muzaffarabad on 22.9.2004. After necessary proceedings, this suit was decreed on 8.10.2004. It reveals from the record that the suit was filed against the Revenue Department through Collector. Neither the Azad Government of the State of Jammu and Kashmir was impleaded through Chief Secretary nor the Board of Revenue, Secretary Revenue Department and the Secretary Forests Department were impleaded in the line of the respondents who were the necessary parties because the land comprising khasra No.441, measuring 8 Kanals 16 marla, admittedly was a Khalsa land and was entered as such in the revenue record, hence, the judgment and decree of the trial Court in absence of the necessary party was a nullity in the eye of law as has been opined in case reported as Muhammad Ashraf and 8 others v. Azad Government of The State of Jammu and Kashmir and 13 others [PLD 1985 SC (AJ&K) 102]. At page 108 of the report, it was concluded as under:-- "10. ....It is settled principle of law that the necessary parties should be impleaded by the person seeking the redress within the period of limitation and such parties cannot be brought on the record after the expiry of such period specially so when party seeking impleadment is guilty of negligence. However, where a party is remotely interested the fate of the petition and as such is only a proper party, its non-impleadment would not be fatal to the proceedings .." In the said judgment, by relying upon [PLD 1986 (AJ&K) 228] and [PLD 1984 (AJ&K) 166] it was further observed by the Hon'ble Supreme Court of Azad Jammu and Kashmir that when an illegality on the face of record is noticed then this Court is duty bound to rectify the same notwithstanding competency of appeal. The relevant observations recorded at page 10 of the judgment are reproduced as under:-- "By now law is well settled that when an illegality or an error on the surface of the record is noticed then the learned High Court is duty bound to rectify the same notwithstanding competency of appeal." Keeping in view the rule of law laid down by the Hon'ble Supreme Court of Azad Jammu and Kashmir in supra cases, by exercising supervisionary and revisional jurisdiction conferred under section 46 of the Azad Jammu and Kashmir Interim Constitution, 1974, read with section 115 Code of Civil Procedure the impugned judgments and decrees recorded by both the Courts below are hereby set-aside. The case is remanded to the trial Court for fresh decision after impleading Azad Govt. through Chief Secretary, Secretary Board of Revenue, Secretary Revenue Department, Forest Department through its Secretary, Secretary Forest Department in line of the respondents. ZC/60/HC(AJ&K) Case remanded.