P L D 2010 High Court (AJ&K) 7 (PLP)

RAFIULLAH SULTANI, J.

This appeal is directed against the judgment of District Judge Kotli dated 20-12-2004, whereby the judgment of Civil Judge Kotli dated 31-12-2003 was maintained. Brief facts giving rise to the instant appeal are that appellants filed a declaratory suit against the respondents in respect of land comprising number Khasra 677 measuring 3 kanal out of 29 kanal & 19 Marlas situated at Kotla Sarsawa in the Court of Civil Judge Kotli on 28-10-2002. It is alleged that appellants are local destitute and in possession of suit land, which is kind of Khalsa Sarkar since long as Nautur Kunad and proprietary rights were granted in favour of them by Collector under AJ&K Grant of Khalsa Land Rules 1985. In pursuance of the said proprietary rights a mutation number 335 was attested in favour of appellants. It is further alleged that judgment of Collector District Kotli dated 12-12-1995, judgment of Commissioner Mirpur Divison dated 30-4-1997, judgment of Member Board of Revenue dated 4-2-1998, judgment of Additional Commissioner Division Mirpur dated 16-5-2000 and 6-6-2002 are against the law and justice, which are not maintainable and liable to be set aside. The suit was resisted by only respondent No.5 and ex parte proceeding was proceeded against rest of respondents. Respondent No.5 submitted written statement in which he denied the allegations made in the plaint. After framing the issues, the learned trial Court heard the argument on legal issues Nos.2 & 3 and rejected the suit under Order VII, Rule 11 of C.F.C. on 31-12-2003. Appellants feeling aggrieved by the said B judgment and decree filed an appeal before District Judge kotli who dismissed on 20-12-2004, hence this appeal. The learned counsel for the appellants contended that impugned judgments of Courts below are not in accordance with law and facts. It is contended that suit land is in possession of appellants since Dogra regime and they made Nautor over the suit land. The proprietary rights were rightly granted in favour of the appellants by Collector on 18-9-1998 on the basis of investigation conducted by Assistant Collector and the said grant has wrongly been cancelled by Additional Commissioner. It is next contended that appellants are entitled to grant of suit land under section-3 of Azad Jammu and Kashmir of Khalsa Land Rule 1985. It is further contended that Civil Court has jurisdiction to entertain the suit when it is found that order of Revenue authority is illegal. In support of his version, he cited following case law:-2002 CLC 1634 & 993 CLC 244-245-2445(sic). While controverting the arguments of the learned counsel for the appellant, the learned counsel for respondent No.5 contended the Courts below have rightly rejected the suit of the appellants for want of cause of action as well as want of jurisdiction. It is contended that appellants have no legal right with regard to suit land and Additional Commissioner has rightly cancelled the grant in favour of the appellants. It is next contended that appellants have made no Nautor over the suit land and in revenue record, no entry has been recorded with regard to this matter in favour of them. It is further contended that appellants were ejected from suit land in first round of litigation in 1983 and they filed the suit to protect their illegal possession over the suit land. In support of this version, he cited following case law:-[1992 SCR-87) and copy of Act 6 of 1989 dated 28-2-1989. The learned Additional Advocate General owned the arguments of the learned counsel for respondent No.5. I have heard the learned counsel for the parties and gone through the available record of the case carefully. Before parting with the points raised by learned counsel for the appellants, here I would like to reproduce section-2 of amended Act 1989, which reads as under:--

2. Amendment of Section 3, Ordinance VI of 1974.

In the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974 (Ordinance VI of 1974), for section 3 the following shall be substituted:-

3. Regularization of existing Nautors.--(1) A person to whom right in respect of Khalsa land had accrued under Council Orders Nos.38/C, 40/C of Dogra Regime or any order of Poonch State or Government Order No.282/57, and the right could not be granted due to absence of entry in the revenue record as required under Government Order No.282/57, shall be entitled to the grant of proprietary rights: Provided it is proved before the Collector of the District, after such enquiry as may be prescribed, that such person has been in continuous possession of khalsa land and recorded as such in the revenue record before Rabi 1957 A.D. Such grant may be made on payment of premium and subject to limitations as laid down in the aforesaid orders, as amended from time to time: Provided further that Nautors which do not fulfil the condition laid down in Government Order No.149/60 dated 11-3-1960 shall not be regularized. (2) Proprietary rights for Nautors made out of Khalsa land after Rabi 1957 A. D. and before 17th June, 1985 shall be granted by the Collector of the District in the name of Nautor Kunindha,- (a) whose entire holdings including Nautor not exceed eight Kanals without payment; or (b) whose entire holdings including Nautor exceed eight kanals but do not exceed thirty kanals, on payment of market price or at the rate of Rs.2000/- per kanal whichever is less. (3) proprietary rights under subsections (2), shall be granted only when it is proved before the Collector of the District concerned that the Nautor Kunindha has been in continuous possessions of the Nautor and recorded as such in the revenue record: Provided that for this purpose where revenue record does not exist the Collector shall satisfy himself through an enquiry to be conducted by a revenue officer not below the rank of Tehsildar. (4) All sanctions of Nautor shall be incorporated in the revenue record through mutation to be attested by revenue officer not below the rank of Assistant Collector 2nd grade: Provided that the Nautor which is likely to be required for any government purpose or common village purpose shall not be regularized. (5) A land owner in possession of Nautor exceeding thirty kanals including his own holdings, shall be liable to summary ejectment by an officer not below the Rank of Naib Tehsildar. (6) The provision of this Section shall not apply to the areas falling within the limits of Town Committees and Municipal Committees. (7i) The holding of Nautor kunindah for the purpose of this Section shall be the holding as it stood on 15-6-1985 and any transfer made by him after this date shall be reckoned in his holding. (8) No Nautor exceeding 30 kanals including the holding of a Nautor kunindah shall be regularized in any case and the said Nautor kunindah shall be summarily ejected by a revenue officer not below the rank of Naib Tehsildar. It is crystal clear from bare reading of the above-quoted provision of law that only those persons are entitled to obtain the grant of khalsa land who are holding Nautor kunaindah on 15-6-1985 and continuous possession of the Nautor and recorded as such in the revenue record. Coming to the instant case, the appellants have been ejected from number khasra 677 measring 29 kanal and 19 Marlas vide the judgment of Collector District Kotli dated 12-12-1995 and the said ejectment is recorded in Khasra Gardawari pertaining to year Rabi 1983, which reads as under:- Appellants have not been recorded as Nautor kunaindah in revenue record and the grant of proprietary rights could not be granted due to absence of entry in revenue record and after ejectment from suit land, the condition of continuous possession is disappeared and not existing in favour of the appellants. Appellants have been ejected from the suit land in earlier round of litigation up to Member Board of Revenue. After that they initiated fresh proceeding for grant of proprietary rights to the extent of 3 kanals out of 29 kanals and 19 marlas and when they failed before revenue authorities to prove their claim, then they filed civil suit to protect their illegal possession over the suit land. Appellants have no legal right in respect of suit land and failed to establish the same under section 42 of Specific Relief Act. It is correct that civil Court has power to entertain a suit to decide civil rights vested in civil Courts under section 9 of Civil Procedure Code but where rights created under a special Act and special authority also created for deciding the same, the jurisdiction of Civil Court is barred. Such rights can be decided by the authority which is created for this purpose unless it does not travel beyond the jurisdiction. Coming to the instant case, it is the function of Revenue Authorities to decide the grant of proprietary rights under AJK Khalsa Land Rules, 1985 and the said authorities have jurisdiction to decide rightly as well as wrongly. The contention of the learned counsel for the appellants to declare the impugned judgments of Revenue Authorities as illegal has no substance because they have vested jurisdiction to decide the matter and revenue authorities have not travelled beyond their jurisdiction. The Courts below have rightly declared that civil Court has not vested jurisdiction to entertain the suit and appellants have no cause of action. There is also another ground of dismissal of appeal in hand that judgment of a Court of special jurisdiction (Revenue Court) will be operated as res judicata in a Court of general jurisdiction (Civil Court) provided the judgment of the Court of special jurisdiction was within the jurisdiction of that Court. The judgments of Revenue Courts are binding on the civil Court if the same controversy/issue is raised again. The question of grant of proprietary rights of khalsa land was admittedly raised in the proceedings culminating in the impugned judgments of Revenue Courts and that very issue was raised again before the Civil Court in the present suit. It is admitted that the impugned judgments of Revenue Court remained unchallenged for all these years. Due to this reason a final judgment rendered by Revenue Court will be operated as res judicata in the civil Court. The Courts below have committed no illegality while passing the impugned judgments and decree. In view of reasons listed above, the appeal being devoid of force is hereby dismissed. H.B.T./2/AJ&K(HC) Appeal dismisse