Mst. Jana Begum vs Prithvi Nath Razdan and Another

J.P. Singh, J.—This civil second appeal is directed against judgment and decree of learned Additional District Judge, Ramban, in file No.

2/Appeal dated 2-8-2002, whereby while dismissing the appeal of the appellant, he upheld the decree of the Sub-Judge, Ramban, who had

decreed the suit for possession filed by the respondents.

The case of the plaintiffs/respondents . is that in the year 1968, the plaintiffs occupied two marlas of land in survey No. 383/ 100 and two

marlas of land in survey No. 383/101 at Maitra Govindpura Ramban. These two plots, the plaintiffs aver, are adjacent to each other. Plaintiff No.

1 and plaintiff No. 2 are husband and wife. They had sought permission of Chairman, Notified Area Committee, Ramban, to construct a house on

the aforementioned plots. Vide order No. 266 NAC dated 5-3-1969, the Notified Area Committee. Ramban, approved their plan and accorded

sanction to them to construct their house as per the site plan. The plaintiffs constructed their house comprising of five rooms and a verandah. Rest

of the land was used by the plaintiffs as compound. After the construction of the house, Tehsildar, Ramban, started eviction proceedings against

the plaintiffs and by his order dated 2-4-1971 directed the dispossession of the plaintiffs from the said land. Demolition of house too was ordered

by the Tehsildar. The plaintiffs took the matter to the Revenue Minister, who disposed of the matter vide his order dated 27-5-1976 and held the

possession of the plaintiffs over the suit land as bona fide and directed its regularization. Demolition of the house too was stopped by the Revenue

Minister. The plaintiffs claim to be the owners of the land and the house in terms of the Judgment of the Revenue Minister.

The plaintiffs submit that in the year 1985, due to domestic exigencies they left for Kashmir after having locked the house in question. It was in

the month of July, 1987, the plaintiffs learnt that the defendant had forcibly entered the house and started living there. The plaintiff requested the

defendant to vacate the house and hand over the possession to them but without any result. The plaintiffs, therefore, in the circumstances, filed a

suit before Sub-Judge, Ramban, who framed the following issues after perusing the written statement of the defendant and documents filed in the

case. The issues read, thus :

Whether the plaintiffs had constructed the house comprising of five rooms and a branda and a compound in a land comprised of four marlas

situated in khasra No. 383/ 100 and 383/101 situated at Govindpora Matra ? OPP

In case issue No. 1 is proved in affirmative whether defendant has forced their entry illegally in the suit land in between the year 1985 to 1987 ?

OPP

Whether the State is a necessary party ? OPP

Whether the questioned land and questioned house is situated in khasra No. 383 min comprising five marlas, if so what its effect on the suit ?

OPD

Relief.

Learned Sub-Judge, Ramban, vide his Judgment dated 31-10-2000 decreed the suit.

Aggrieved by the decree and judgment of learned Sub-Judge, Ramban, the appellant preferred an appeal, which was dismissed by learned

Additional District Judge, Ramban, vide his judgment dated 2-8-2002.

Aggrieved by the decree and judgment of learned Sub-Judge. Ramban, as confirmed by learned Additional District Judge, Ramban, the

appellant has preferred this civil second appeal.

On this appeal coming up for motion hearing, Sh. D. S. Thakur, learned Counsel appearing for appellant, has argued that State of Jammu &

Kashmir was a necessary party to the suit of the respondents and having omitted to array the State of J. & K. as party-defendant in the suit, the

plaintiffs cannot maintain suit for possession against the appellant. Learned Counsel relies on Section 45 of the Constitution of Jammu & Kashmir

to urge that in the absence of any order of the Government, expressed to be taken in the name of Governor or Government of J. & K. the order of

the Revenue Minister cannot be said to have vested ownership rights in the land in question in the plaintiffs.

Sh. P. N. Bhat, learned Counsel appearing for respondents, submits that the appellant is a trespasser having no right, title or interest of any type

whatsoever. According to learned Counsel for respondents, the appellant cannot dispute the right, which the Revenue Minister had vide his

judgment conferred on the plaintiffs/respondents. He has further submitted that the plea raised by the appellant is not available to her because no

such question was raised by the appellant either in the written statement or in the grounds of appeal before the learned First Appellate Court. He

further submits that the concurrent finding of facts recorded by two Courts in favour of the respondents cannot be interfered with in the civil second

appeal.

I have considered the submissions of learned Counsel appearing for the parties.

It is true that the appellant has not raised the plea sought to be projected by her at the time of consideration of this appeal for admission either

in her written statement before the trial Court or in the memo of appeal filed by her before the First Appellate Court, such a plea, in my opinion,

cannot be, thus, permitted to be urged at this belated stage and that too when the two Courts have held the appellant to be a stark trespasser,

Even otherwise, the plea raised by the appellant is untenable in view of the order of the highest authority i.e. the Revenue Minister, who has

permitted the plaintiffs to continue in possession of the land and enjoy the house constructed by them pursuant to the permission granted to them by

the Notified Area Committee, Ramban.

The possession of the plaintiffs /respondents being permissive, they cannot be deprived of its user and restoration and that too at the behest of

a trespasser.

That apart, I do not find any substantial question of law having been raised by the appellant in her memo of appeal. It is no longer res-integra

that an appeal u/s 100 of the CPC can be entertained only if the High Court is satisfied that the case involves a substantial question of law.

Satisfaction regarding any substantial question of law can be recorded only if the appellant urges such substantial question of law either in his memo

of appeal or in his submissions. The appellant has not urged any substantial question of law in the memo of appeal. Questions of law raised in the

memo of appeal, in my opinion, are not substantial question of law.

I, therefore, do not find any ground for admission of this appeal. The respondents have been deprived of possession over their property at the

behest of the appellant who has succeeded in dragging the litigation for over a period of sixteen years. This appeal is, therefore, dismissed along

with connected CMP(s) with costs quantified at Rs. 5.000/- (Rupees Five Thousand only).