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Civil Appeal No. 37 of 1985, decided on 23rd August, 1987.
(On appeal from the judgment and decree of the High Court dated 29‑3‑1984 in Civil Appeal No.32 of 1983)
‑‑‑ S. 9‑‑Jurisdiction of Civil Court‑‑While determining jurisdiction of a Civil Court to entertain and decide upon a cause of action, nature of claim put forward by the plaintiff as his cause of action is to be looked into and the matter involved does not depend upon what the defendant may assert or asserts by' way of defence‑‑It would not matter if it turns out at the trial that the subject of contest between the plaintiff and defendant is not properly represented by the forum which the plaintiff has chose n‑‑ Occurrence of such contingency may only render the plaintiff's suit liable to be dismissed as not proved but would not affect the jurisdiction under which the suit as brought by the plaintiff fell. ‑‑[Jurisdiction].
Labhua Sao v. Chetan and another A I R 1924 Nag. 275; S. Samu Asari v. Anchi Ammal A I R 1926 Mad. 37; Baru and others v. Naider and others A I R 1942 Lah. 217; Niranjan Lal v. Siria A I R 1953 Papsu 107; Ludur v. Ram Raj and others A I R 1954 All. 171 and Mrs. E.Williams and anothers v. Vallabhadass A I R 1962 Andhra Pradesh 447 ref.
‑‑‑ Civil Court‑‑Nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of averments in the plaint and not on the basis of any defence that may be taken up.
Mst. Zainab and others v. Fazal Dad and others P L D 1966 Lah. 1050 ref.
‑‑‑ Civil Court‑‑Question whether suit lies in the Civil Court or its jurisdiction is ousted, ordinarily depends upon the construction of the plaint only‑‑What the defence of the defendant in his written statement will be or what attitude the defendant assumes with regard to the demand made by the plaintiff is really an irrelevant consideration in the determination of such question‑‑When the plaintiff, however, hides or conceals a fact which is unearthed by the defendant in his written statement, it may form a valid ground to determine the jurisdiction because in that event concealed matter may be considered as to have formed a part of the plaint‑‑Nature of a suit for purposes of determining the jurisdiction, therefore, has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up, barring any abovesaid eventuality.
Labhua Sao v. Chetan and anothers A I R 1924 Nag. 275; S. Samu Asari v. Anchi Ammal A I R 1926 Mad. 37; Baru and others v. Naidar and others A I R 1942 Lah. 217; Niranjan Lal v. Siria A I R 1953 Papsu 107; Ludar v. Ram Raj and others A I R 1954 All. 171; Mrs. E. Williams and anothers v. Vallabhadass A I R 1962 Andhra Pradesh 447 and Mst. Zainab and others v. Fazal Dad and others PLD 1966 Lah. 1050 ref.
‑‑‑S. 25‑A‑‑‑Shamilat Deh‑‑New owner will be entitled to Shamilat Deh land only to the exfent to which he, under the provisions of the Act acquired ownership in the village‑‑Rights of the old owners in Shamilat Deh land which they possessed prior to the enforcement of the Act would remain unaffected even under any of the provisions of the Act‑‑Factors having importance while determining share of the old and new owners in Shamilat Deh detailed.
Under section 25‑A, of the Azad Jammu and Kashmir Land Reforms Act, 1960 the new owner will be entitled to the 'Shamilat Deh' land only to the extent to which he, under the provisions of Land Reforms Act, acquired ownership in the village. The explanation to section 25‑A conveys clear sense that the rights of the old owners in the 'Shamilat Deh' land which they possessed prior to the enforcement of the Land Reforms Act, would remain unaffected even under any of the provisions of the Land Reforms Act. It would, therefore, follow that while determining the entitlement of the new owners in the 'Shamilat Deh' land firstly one has to ascertain that they held the land in 'Shamilat Deh' according to their share in the village and secondly it would also require consideration that the rights of the old owners in the 'Shamilat Deh' land are not affected. In fact a scheme has been laid down in section 25‑A of the Land Reforms Act and for accomplishment of the scheme certain particulars are to be looked into. Amongst them the vital points to be determined are:‑---
(a) Whether the old tenant is having the possession since 1971
(b) Whether the possession is proportionate to the extent to which he has got the right of ownership
(c) Whether the land of the old tenant including 'Shamilat Deh' land will be lesser than one hundred kanals
(d) Whether the rights regarding 'Shamilat Deh' land, already accrued to the old owners, will or will not be affected
All the above facts have importance while determining the share of the old and new owners in the 'Shamilat Deh'.
‑‑‑Ss. 4 (vi), 25‑A(ii) & 32‑‑Civil Procedure Code (V of 1908), S.9‑‑Any question with regard to the Shamilat Deh land within meaning of S. 25‑A (ii) can only be determined by the Commission and Civil Courts jurisdiction is barred, apart from provisions of section 32 of the Act.
Subsection (vi) of section 4 of the Azad Jammu and Kashmir Land Reforms Act clearly provides that in case a dispute arises in carrying into effect the provisions of the Land Reforms Act, such dispute shall be referred to the Commission for its resolution whose decision shall be final. To hold possession of land from 'Shamilat', is a question which relates to the implementation of section 25‑A (ii) of the Land Reforms Act and such question can only be competently resolved by the Commission established under section 4 of the Land Reforms Act. In fact any question with regard to the 'Shamilat Deh' land within the meaning of section 25‑A (ii) of the Land Reforms Act can only be determined by the Commission and the Civil Court's jurisdiction is barred apart from the express provisions of section 32 of the Land Reforms Act. Where a right is created by statute and a method of enforcing the right or of redressing grievance caused in the exercise of enforcement of the right, is pointed out by the statute creating such right, then the general remedy of suit will be impliedly barred.
When one closely studies section 32 alongwith sections 25‑A and 4 of the Land Reforms Act it becomes abundantly clear that the resolution of a dispute with regard to the 'Shamilat Deh' land and particularly when it relates to the extent of ownership of the old or the new owners in the land is exclusively the function of the Commission established under section 4 of the Land Reforms Act and the jurisdiction of the Civil Court stands completely ousted to decide such an issue.
Under section 32(2) of the Land Reforms Act no Court or authority is competent to grant injunction or make an order in relation to anything done or intended to be done at the instance of the Commission or such officer. This provision clearly bars the jurisdiction of the Civil Court to make an order or grant injunction in any matter which can competently be gone into by the Commission. If Civil Court is allowed to hear such matters, it would amount to creating inroad in the functions of the Commission which is not permissible under law.
For the determination of jurisdiction the normal rule prescribed by section 9 of the Code of Civil Procedure is that the Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting the suits of which their cognizance is either expressly or impliedly barred.
The normal rule prescribed by section 9 of the Code of Civil Procedure, is that the Courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The question about the exclusion of the jurisdiction of Civil Courts either expressly or by necessary implication must be considered in every case in the light of the words used in the statutory provisions on which the plea is rested, the scheme of the relevant provisions, their object and their purpose.
Section 9 of the Code of Civil Procedure is of a general character but the powers so conferred by section 9 of the Code on Civil Courts are subject to such exceptions as may be made by the special statutes. Hence, the provisions of the Land Reforms Act (section 32) exclude the jurisdiction of the Civil Court to deal with the matters which are triable by the forum established under the Act. The Law has also set up a forum which can allow to retain the possession of the land, the proprietorship of which one has acquired under the Land Reforms Act.
Gulab Khan v . Government of Azad J & K P L D 1970 Azad J & K 35; Kamala Mills v. Bombay State A I R 1965 S C 1942; Bata Shoes Co. v. City of Jabalpur Corporation A I R 1977 S C 955 and Delhi Cloth and General Mills Co. Ltd. v. The Municipal Council Kota A I R 1978 Raj. 177 ref.
‑‑‑Civil Court‑‑Plea raised before Civil Court that its jurisdiction was excluded either expressly or by necessary implication to entertain claims of Civil nature‑‑Considerations to be kept in view by Civil Court stated.
Whenever a plea is raised before a Civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of civil nature the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by special statute is sufficient or adequate. Where the exclusion of a Civil Court jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and adequacy or the sufficiency of the remedies provided for by it may be relevant, it cannot, however, be decisive. But when exclusion is pleaded as a matter of necessary implication, such consideration would be very important and, in conceivable circumstances might even become decisive. If a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by Tribunals specially constituted in that behalf and it further lays down that all questions about the said right and liability shall be determined by the Tribunal so constituted, it would be pertinent to inquire whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
Kamala Mills Ltd. .v. Bombay State A I R 1965 S C 1942 ref.
‑‑‑Civil Court‑‑Exclusive of jurisdiction of a Civil Court to entertain civil cause will not be assumed unless relevant statute contains express provisions to that effect or leads to necessary inevitable implication of that nature‑‑Mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of Civil Court to deal with a case brought before it in respect of some of the matters covered by such Statute.
Firm of Iluri Subbayya Chetty and Sons v. State of Andhra Pradesh A I R 1964 S C 322; Secy of State v . Mask and Co. A I R 1940 P C 105; Raleigh Investment Co. Ltd. v. Governor‑General in Council A I R 1947 P C 78; Gusain Singh and others v. Puran Singh and others A I R 1939 All 301; Shyam Lal Yadev and others v. Smt. Kusaum Dhawan and others A I R 1979 S C 1247 and Ramibal and another v. Harchand and others A I R 1980 Madhya Pradesh 75 ref.
‑‑Civil Court‑‑Jurisdiction of Civil Court can be barred by creating Special Tribunal or forum for determining all peculiar claims or rights or obligations arising out of a Special Act‑‑Ouster of jurisdiction of Civil Court will be complete if the authority empowered to determine the matter has been constituted as required by the Special Act or Statute.
Zafar‑ul‑Hasan v. Republic of Pakistan P L D 1960 S C 113 ref.
‑‑‑Ss. 4 & 6‑‑Azad Jammu and Kashmir Land Reforms Rules, Rr. 3, 4, 5 & 7‑‑Land Commission‑‑Proceedings before Land Commission are not administrative proceedings but are in form of almost a trial of Civil suit.
Proceedings before the Commission are not to be treated just like administrative proceedings as generally understood; the proceedings are to take form of almost a trial of civil suit and can well be said to be a full‑fledged trial before a Civil Court where a person can produce and summon both documentary as well as oral evidence in support of his claim. The Commission, therefore, can decide all those questions which a Civil Court is competent to decide while disposing of a suit. Thus, it does not give any disadvantage to any person to pursue his remedy before a forum which has been specifically created for disposing of the lis of the nature which is presently being decided by the Court.
Ch. Muhammad Riaz Akhtar for Appellants.
Muhammad Yunus Surakhvi for Respondents.
.‑---‑For the reasons to be stated, we have decided to allow this appeal which has come up by leave. Firstly narration of facts is necessary to appreciate as to why the appeal is being allowed.
2. A declaratory suit coupled with the prayer for perpetual injunction to restrain the defendants (appellants herein) not to interfere in their possession of the suit land, which measures 125 Kanals 1 Marla and is situated in the area of village Gulbahar, Tehsil Bhimber, was filed by the respondents (plaintiffs) in the Court of Sub‑Judge Bhimber on 18‑12‑1977. It was averred in the plaint that the plaintiffs retained continuous possession of the suit land from time immemorial and after acquiring its proprietary rights, under the provisions of the Azad Jammu and Kashmir Land Reforms Act, 1960, (hereinafter to be referred as Land Reforms Act) they now hold its possession as proprietors alongwith others. It was prayed that since the appellants (defendants) threaten to invade their settled possession, a declaratory decree to the effect that they are entitled to hold the Possession of the suit land as co‑sharers‑proprietors coupled with an order Of perpetual injunction restraining the appellants (defendants) not to disturb their Possession may be passed in their favour.
3. The maintainability of the suit was questioned by the appellants (defendants) in their written statement on various grounds. One of the grounds Putforth was that since the plaintiffs are occupancy tenants under them, section 32 of the Land Reforms Act ousts the jurisdiction Of the Civil courts to hear the suit.
4. The above question prevailed and the learned Sub‑Judge, vide order dated 29‑4‑1982, dismissed the suit on the ground that Civil Court has no jurisdiction to look into the controversy. The appeal taken by the plaintiffs to the District Judge, Mirpur, also failed vide order dated 6‑7‑1983. The second appeal moved by the respondents in the High Court, however, succeeded and the findings of both the Courts below were set aside by the High Court vide order dated 29‑3‑1984.
5. The learned Judge in the High Court proceeded to upset the judgments of the subordinate Courts on the ground that allegations made in the plaint, irrespective of the plea of defence taken in the written statement, determine the jurisdiction and since in the present case the resolution of the points raised in the plaint do not attract any of the provisions of the Land Reforms Act, it is only the Civil Court which has the jurisdiction to determine the lis and the subordinate Courts were wrong to hold that Civil Court has no jurisdiction to hear the matter while considering the plea raised in the written statement. The learned High Court is of the view that since plaintiffs‑respondents rested their claim on the title simplicter the Civil Court has jurisdiction to resolve the controversy (refer to para 12 of the judgment). Consequently the case was sent back to the Trial Court for deciding it on merits.
6. It is this judgment of the High Court to challenge, the validity of which this appeal by leave is moved in this Court.
7. We have no quarrel with the proposition that generally while determining the jurisdiction of a Civil Court to entertain and decide upon a cause of action, the nature of the claim put forward by the plaintiff as his cause of action is to be looked into and the matter involved does not depend upon what the defendant may assert or asserts by way of defence and it would not matter if it turns out at the trial that the subject of contest between the plaintiff and defendant is not properly represented by the forum which the plaintiff has chosen. The occurrence of that contingency may only render the, plaintiff's suit liable to be dismissed as not proved. It would not, however, effect the jurisdiction under which the suit as brought by the plaintiff, fell. This view, expressly or by necessary implication, is owned in Labhua Sao v. Chetan and another A I R 1924 Nag. 275; S. Samu Asari v. Anchi Ammal A I R 1926 Mad. 37; Baru and others v. Naider and others A I R 1942 Lah. 217; Niranjan Lal v. Siria AIR 1953 Papsu 107; Ludur v. Ram Raj and others A I R 1954 All. 171 and Mrs. E. Williams and another v. Vallabhadass A I R 1962 Andbra Pradesh 447.
8. From Pakistan jurisdiction we find identical view in Mst. Zainab and others v. Fazal Dad and others P L D 1966 Lah. 1050. In his case Mr. Justice Sardar Muhammad Iqbql Khan, J. (as he then was) while dealing with the issue, observed:‑-------
"It is a well‑established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up."
9. The above statement of law admits of no exception so far as the jurisdiction of the Civil Court is concerned. We have also owned this view in so many reports and since we do not find anything to have a different view in the matter, we reiterate the same.
10. On the above premises of the reasoning we hold that the question whether the suit lies in the Civil Court or its jurisdiction is ousted, ordinarily depends upon the construction of the plaint only. What the defence of the defendant in his written statement will be or what attitude the defendant assumes with regard to the demand made by the plaintiff is really an irrelevant consideration in the determination of this question. If the plaintiff, however, hides or conceals a fact which is unearthed by the defendant in his written statement, it may form a valid ground to determine the jurisdiction because in that event the concealed matter may be considered as to have formed a part of the plaint. The nature of a suit for the purposes of determining the jurisdiction, therefore, has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up barring the eventuality hinted at earlier.
11. The learned counsel for the appellant, Mr. Riaz Akhtar, has also no serious criticism on the point that the averment in the plaint determines the jurisdiction of a Civil Court. His argument, however, is that in the instant case even the allegation in the plaint ousts the jurisdiction of the Civil Court. Since the respondents, according to the learned counsel, in this case, who originally were tenants‑at‑will under the appellants, later on under the provisions of the Land Reforms Act got the ownership in the 'Shamlat Dehl land by virtue of their acquiring proprietorship in the village, which they were holding hitherto as tenants, their claim that they have become owners in the 'Shamlat Dehl land alongwith the appellants (old owners), under the provisions of Land Reforms Act cannot be determined by the Civil Court in the face of the provisions of subsection (1) of section 3 read with sections 25 and 25‑A and section 4 of the Land Reforms Act. His plank of argument seems to be that under the provisions of Land Reforms Act referred to above, it exclusively rests with the Commission appointed under section 4 of the Land Reforms Act to look into the controversy as putforward by the respondents in the plaint and the jurisdiction of the Civil Court is totally ousted to examine the matter. No authority, he submits, has jurisdiction to determine, an issue which a Commission or the officer acting under the authority of the Commission is empowered to determine. The extent of ownership acquired by the respondents in the 'Shamlat Deh land under the provisions of Land Reforms Act and for retaining its possession are all, according to the learned counsel, questions that can only be resolved by the Commission to the total exclusion of the Civil Court.
12. The above argument is countered by Mr. Muhammad Yunus Surakhvi, the learned counsel for the respondents, in submitting that issue involved in the present case is to be determined by the Civil Court because the plaintiffs' main claim is only a declaratory one and injunction is only prayed as a consequential relief. Under section 42 of the Specific Relief Act the controversial issue, the learned counsel submits, can be determined by the Civil Court only. He further submits that the general power of a Civil Suit to determine the case of civil nature is always adhered to and the exclusion of the jurisdiction Cannot be readily accepted unless it is implicitly, expressly or impliedly barred. On the point he has referred us to Gulab Khan v. Government of Azad J & K P L D 1970 Azad J & K 35, wherein it has been said:‑--
"The general principle is that every right have a remedy. It is also a general principle that where two proceedings or two remedies are available under the law, one of them must not be taken as operating in derogation of the other. An infringement of an existing legal right is always actionable in a Civil Court unless its cognizance is expressly or impliedly barred. A suit is said to be 'expressly' barred when it is barred by an enactment for the time being in force. Where a right of action exists, a suit is maintainable to enforce that right independently of the special remedy provided by law."
13. Coming to the instant case, to attain clarity in the matter, it would be advantageous to know the points of agreement between the parties. The uncontroversial points are as under:‑--
(i) the respondents (plaintiffs) were tenants‑at‑will under the appellants who were owners (old owners);
(ii) the proprietorship of the 'Shamlat Deh land would vest in the respondents (new owners) in accordance to their entitlement in the village which they have acquired under the provisions of Land Reforms Act; and
(iii) the appellants (old owners) have also their share in the 'Shamlat Deh land proportionate to their entitlement in the village.
14. It is to be noticed that the respondents became proprietors of the 'Shamlat Deh land under section 25 of the Land Reforms Act. Under the provisions of subsection (ii) of section 25‑A of the Land Reforms (Amendment) Act, 1972, which reads:‑---
the new owners (respondents in the case herein) is entitled to retain its possession to the extent of his ownership in the village, which he acquired under the Land Reforms Act but the explanation to section which reads:‑---
clearly conveys the sense that the possession of the old owners would not be disturbed in determining the ownership of the new owners.
15. The first question which, thus, falls for determination is: who would determine the extent to which the new owner is entitled to hold possession in the 'Shamlat Deh' land Whether it will be the civil Court's competency to do so or the forum established under the Land Reforms Act is clothed with such powers The next question which would arise out of the first question is as to whether the Commission is empowered to resolve the issue If the answer is in affirmative the jurisdiction of the Civil Court stands ousted and it would only the Commission who is competent to resolve the dispute.
16. Under section 25‑A, the new owner will be entitled to the 'Shamlat Deh land only to the extent to which he, under the provisions of Land Reforms Act, acquired ownership in the village. Since the extent of the land which the respondents (new owners) have acquired in the village, has not been stated in the plaint, it would need to be ascertained. Besides, the explanation to section 25‑A referred to above, conveys clear sense that the rights of the old owners in the: "Shamlat Deh" land which they possessed prior to the enforcement Of the Land Reforms Act, would remain unaffected even under any of the previsions of the Land Reforms Act. It would, therefore, follow that while determining the entitlement of the new owners in the 'Shamlat Deh land firstly we have to ascertain that they held the land in Shamlat Deh according to their share in the village and secondly it would also require consideration that the rights of the old owners in the 'Shamlat Deh land are not affected. In fact a scheme has been laid down in section 25‑A of the Land Reforms Act and for accomplishment of the scheme certain particulars are to be looked into. Amongst them the vital points to be determined are:‑----
(a) Whether the old tenant is having the possession since 1971
(b) Whether the possession is proportionate to the extent to which he has got the right of ownership
(c) Whether the land of the old tenant including 'Shamlat Deh land will be lesser than one hundred kanals
(d) Whether the rights regarding 'Shamlat Deh land, already accused to the old owners, will or will not be affected
All the above factors have importance while determining the share of the old and new owners in the 'Shamlat Deh .
17. We may here, with advantage, reproduce sections 4, 25‑A and 32 of the Land Reforms Act. Section 4 reads as under:‑---
4. Constitution of Land Commission and its Powers.
(i) For carrying out the purposes of this Act, a Commission, to be called the Azad Jammu and Kashmir Land Commission, shall be constituted, consisting of the Additional Financial Commissioner, Azad Jammu and Kashmir Government, who shall ex‑officio be its Chairman and not more than three members to be appointed by him.
(ii) The Commission shall have all the powers necessary for the implementation of this Act.
(iii) The Commission may nominate one of its members to be the Land Commissioner who, subject to such directions as may from time to time be given by the Commission, shall be responsible for the implementation of this Act.
(iv) The Commission may set up organization and appoint officer, authorities and persons, and confer powers on and assign duties to them.
(v) Where any matter is not provided for in this Act or any difficulty arises in giving effect to the purposes of this Act, the Commission may by order notified in the official gazette, make such provision in respect thereof as it thinks fit, and such order shall be deemed to form part of this Act and have effect accordingly.
(vi) Where any dispute arises in carrying into effect the provisions of this Act, such dispute shall be referred to the Commission whose decision thereon shall be final."
Section 25‑A reads as. follows‑---‑
Section 32 reads:‑--
" (1) No provision of this Act or of any rules or orders made thereunder shall be called in question in any Court including the High Court or before any authority other than an authority appointed under this Act, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission or any officer acting under the authority of the Commission is empowered to determine.
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Act or the rules or orders thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer."
18. It would be seen that subsection (vi) of section 4 clearly provides that in case a dispute arises in carrying into effect the provisions of the Land Reforms Act, such dispute shall be referred to the Commission for its resolution whose decision shall be final. To hold possession of land from 'Shamlat', we are convinced, is a question which relates to the implementation of section 25‑A(ii) of the Land Reforms Act and such question can only be competently resolved by the Commission established under section 4 of the Land Reforms Act. In fact any question with regard to the 'Shamlat Deh land within the meaning of section 25‑A (ii) of the Land Reforms Act can only be determined by the Commission and the Civil Court's jurisdiction is barred, apart from the express provisions of section 32 of the Land Reforms Act referred to above. It is settled law that where a right is created by statute and a method of enforcing the right or of redressing grievance caused in the exercise of enforcement of the right, is pointed out by the statute creating such right, then the general remedy of suit will be impliedly barred.
19. In the case before us the respondents seek enforcement of section 25‑A of the Land Reforms Act with the purpose to protect their possession over the 'Shamlat Deh land. Naturally the resolution F of this question amounts to implementation of the provisions of section 25‑A of the Land Reforms Act. This question, we believe, is to be referred to the Commission and the Civil Court has no jurisdiction to look into it.
20. As said elsewhere the new owner's extent of ownership in the 'Shamlat Deh land cannot effect the share of the old owners in the 'Shamlat'. Similarly, the new owners can retain the possession of the 'Shamlat Deh land to the extent of their proprietorship in the village which they acquired under the Land Reforms Act.
The above questions are to be examined by the Commission so that the interests of the new as well as the old owners are protected in accordance with the provisions of the Land Reforms Act. Since the examination to know the extent of interest of the old as well as new owners in the 'Shamlat Deh land can only be gone into by the Commission, the jurisdiction of the Civil Court stands ousted.
21. When we closely study section 32 alongwith sections 25‑A anal 4 of the Land Reforms Act it becomes abundantly clear that the resolution of a dispute with regard to the 'Shamlat Deh, land and particularly when it relates to the extent of ownership of the old or the new owners in the land is exclusively the function of the Commission established under section 4 of the Land Reforms Act and the jurisdiction of the Civil Court stands completely ousted to decide such an issue.
22. Let us adjudge the issue from another angle Section 32(2) reads: ‑-----
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Act or the rules or orders thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer.
It would appear that no Court or authority is competent to injunction or pass other order in relation to anything done or into to be done by or at the instance of the Commission or such officer. This provision also bars the jurisdiction of the Civil Court to pass any order or grant injunction in the matter.
23. Under section 32(2) of the Land Reforms Act no Court, or authority is competent to grant injunction or make are order in relation to anything done or intended to be done at the instance of the Commission or such officer. This provision clearly bars the jurisdiction of the Civil Court to make an order or grant injunction in any matter which can competently be gone into by the Commission. If we allow the Civil Court to hear such matters it would amount to create inroad in the functions of the Commission which is not permissible under law.
24. Here we deem it proper to make a reference to section 9 of the Code of Civil Procedure, which is very much relevant to the controversial issue.
Section 9 of the Code of Civil Procedure deals with the jurisdiction and 'reads as under:--
"The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation.‑‑A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies."
25. The normal rule prescribed by section 9 of the Code of Civil Procedure, it would appear is that the Courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of, a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The question about the exclusion of the jurisdiction of Civil Courts either expressly or by necessary implication must be considered in every case in the light of the words used in the statutory provisions on which the plea is rested, the scheme of the relevant provisions, their object and their purpose.
26. Whenever a plea is raised before a Civil Court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of civil nature (as the case is before us) the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by special statute is sufficient or adequate. Where the exclusion of a civil Court jurisdiction is expressly provided for, the consideration as to the scheme of he statute in question and adequacy or the sufficiency of the remedies provided for by it may be relevant, it cannot, however, be decisive. But when exclusion is pleaded as a matter of necessary implication,' such consideration would be very important and, in conceivable circumstances might even become decisive. If a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by Tribunals specially constituted in that behalf and it further lays down that all questions about the said right and liability shall be determined by the Tribunal so constituted, it would be pertinent to inquire whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not'. The law, as we understand, is to be construed in view of the above observations. This view was accepted in Kamala Mills v. Bombay State A I R 1965 S C 1942.
27. It may be appreciated that section 9 of the Code of Civil Procedure is of a general character but the powers so conferred by section 9 of the Code in Civil Courts are subject to such exceptions as may be made by the special statutes. Hence, the provisions of the Land Reforms Act (section 32) exclude the jurisdiction of the Civil Court to deal with the matters which are triable by the forum established under the Act. The law has also set up a forum whereby the respondents can be allowed to retain the possession of the land the proprietorship of which they have acquired under the Land Reforms Act.
28. Thus, dealing with the question of jurisdiction it is necessary to remember that the normal rule prescribed by section 9 of the Code of Civil Procedure is that the Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting the suits of which their cognizance is either express or impliedly barred, as the Privy Council has observed in the case of Mask & Co. A I R 1940 P. C. 105. In the instant case the determination of the question as to whether section 32 bars the present suit must rest on the terms of section 32 and other relevant provisions referred to above. M/s. Kamala Mills Ltd. v. State of Bombay A I R 1965 S C 1942 owns identical statement of law.
29. It should be remembered that the exclusion of the jurisdiction of a Civil Court to entertain the civil causes will not be assumed unless the relevant statute contains express provisions to that effect or leads to necessary inevitable implication of that nature. Mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the Civil Court to deal with a case brought before it in respect of some of the matters covered by the said statute. We have identical statement of law in Firm of Iluri Subbayya Chetty and Sons v. State of Andhra Pradesh A I R 19641 SC 322, Secy. of State v. Mask & Co. A I R 1940 P C 105 Raleigh Investment Co. Ltd. v. Governor‑General in Council A I R 1947 P C 78. But in the instant case the ouster expressly and by necessary implication is clear for the reasons stated above.
This view prevailed in Gusain Singh and others v. Puran Singh and ' others A I R 1939 All. 301, Shyam Lal Yadev and others v. Smt. Kusaum Dhawan and others A I R 1979 S C 1247 and Ramibal and another V. Harchand and others A I R 1980 Madhya Pradesh 75.
In Gusain Singh and others v. Puran Singh and others A I R 1939 All. 301 it has been observed:‑---
"The clause in R. 14 that no Court other than such Revenue Court shall take cognizance of any dispute or matter in respect of which any such suit or application might be brought or made, is of much wider scope and covers any case in which there may be a dispute or matter in respect of which a suit or application might be brought or made in the Revenue Court."
In Ramibail and another v. Harchand and others A I R 1980 Madhya Pradesh 75 it was held:
"The words 'no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government the board or any Revenue Officer is, by this Code empowered to determine clearly lay down that where it is provided in this code that a particular question should be determined by a revenue tribunal, the Civil Court cannot entertain a suit with regard to the same matter except if it is specifically provided for S.131 clearly confers a right on a party to obtain an order pertaining to right of way on the basis as contemplated in S. 131 and this could be granted by the Tehsildar who is a Revenue Officer. There is no provision either in S. 131 or in any other section in this Code which makes the ‑decision of the Revenue Officer under S. 131 subject to the decision of a Civil Court."
The other reports have identical view and need not be referred.
30. On the above premises of reasoning a claim of civil nature is ordinarily triable by the ordinary Courts of competent jurisdiction as provided by section 9; but the jurisdiction of the Civil Court to try suits of a civil nature can be excluded either expressly or impliedly and, as said earlier, the jurisdiction of the Civil Court is ousted under the provisions of Land Reforms Act.
31. Apart from other laws ousting expressly or impliedly the jurisdiction of the Civil Courts the Code itself absolutely bars the jurisdiction of the Civil Courts to entertain the suit, for instance, sections 11, 47 and 144 and rule 2 of Order 11, rule 9 of Order X1, rule 9 of Order XXII, rule 1 of Order XXIII, 'etc. Likewise as‑said earlier, the jurisdiction of the Civil Courts can be barred by creating special Tribunal or forum for determining all peculiar claims or rights or obligations arising out of a special Act, as the case is before us. Ouster of jurisdiction of the Civil Courts will be complete if the authority empowered to determine the matter has been constituted as required by the special Act or statute. In Zafar‑ul‑Hasan v. Republic of Pakistan P L D 1960 S C 113 while considering ouster clause in clause 5 of Article 6 of the Laws (Continuance in Force) Order, 1958, which expressly said that the order of the authority mentioned in clause 3 of the Order "shall not be called in question in any Court", Munir C.J. observed "if the statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority".
32. There is yet another aspect of the matter. In exercise of the powers conferred by section 6 of the Azad Jammu and Kashmir Land Reforms Act, the Azad Jammu and Kashmir Land Commission was pleased to make, of course with previous sanction of the Government, the rules called the Azad Jammu and Kashmir Land Reforms Rules for carrying out the purposes of the Act. Sub‑rule (2) of Rule 3 provides that the control and superintendence of the officers and the staff entrusted with the duty of the implementing the provisions of the Act would vest in the Land Commission appointed under section 4 of the Land Reforms Act. Under Rule 5, Sub‑rule (1) every officer al9gointed under the Act shall, for the purposes of making an inquiry or hearing an appeal under the rules has been given practically the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, as adopted in Azad Jammu and Kashmir Territory when trying a cause or matter in respect of certain matters. Similarly under Rule 7, it is made imperative for a person drawing an application or written statement to verify in the manner provided for verification of written statements in the Code of Civil Procedure, 1908, in respect of Civil suits. Under Rule 14 an order made under the provisions of the Land Reforms Act or the Rules made thereunder is final and cannot be called into question in any Court. 'It would, thus, appear that the proceedings before the Commission are not, to be treated just like administrative proceedings as generally understood; the proceedings are to take the form of almost a trial of Civil suit and can well be said to be a full‑fledged trial before a Civil Court where a person can produce and summon both documentary as well as oral evidence in support of his claim. The Commission, therefore, we believe, can decide all those questions which a Civil Court is competent to decide while disposing of a suit. Thus, it does not give any disadvantage to the respondents to pursue their remedy before a, forum which has been specifically created for disposing of the lis of the nature before us.
33. Besides, since the objection regarding the jurisdiction of the Civil Court to try the suit of the nature has been specifically raised and in view of the ratio decidendi laid down by the Supreme Court of India in Kamala Mills v. Bombay State A I R 1965 S C 1942 and Bata Shoes Co. v. City of Jabalpur Corporation A I R 1977 S C 955, there can be absolutely no doubt in holding that a civil suit of the present nature is expressly barred by the provisions of section 32 read with sections 25‑A and 4 of the Land Reforms Act. We think T that Mr. Muhammad Yunus Surakhvi cannot successfully advance his case before us that his case is triable by the Civil Court.
34. In view of the above, having given our most anxious consideration to the arguments advanced by the learned counsel for the parties we have no hesitation in holding that the jurisdiction of the Civil Court is barred and the present suit filed by the plaintiffs‑respondents is totally misconceived. This view also prevailed in the Delhi Cloth and General Mills Co. Ltd. v. The Municipal, Council Kota A I R 1978 Rajasthan 177.
For the above stated reasons we would allow this appeal and while reversing the impugned judgment of the High Court dated 29‑3‑1984 restore the judgment of the District Judge dated 6‑7‑1983. No order as to costs.
The Deputy Registrar, Branch Registry, Mirpur, shall announce the judgment in presence of the learned counsel for the parties.
M.B.A./199/A S.C. Appeal allowed.
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