HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU RFA No. 45/ 2024 CM No. 5943/2024 CAV No. 1431/2024 Naryana Dass age 70 years S/o Bulla Ram R/o Village Keran, Tehsil and District Jammu. …..Appellant(s)/Petitioner(s) Through: Mr. Pawan Kumar Kundal, Advocate vs 1. Radha Soami Santsanag Beas Trust Board Jammu through Its Secretary, Keran Bantalab Jammu. 2. Vipan Dubey S/o Sh Nek Ram R/o 61-C,C/D Gandhi Nagar Jammu. 3 Pawan Kotwal, JKAS presently Posted in the office of Financial Commissioner (Revenue) Near Ambedkar Chowk, Bahu Plaza Jammu. .…. Respondent(s) Through: Mr. Aseem Sawhney, Advocate for R-1 Mr. Sachin Dogra, Advocate for R-2. None for R-3. Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE JUDGMENT 01.01.2025 ORAL 1. In the instant appeal filed by the appellant herein has challenged order dated 23.07.2024 passed by the 1st Additional District Judge, Jammu (for short the trial court) in case, titled as “Narayan Dass V/s Radha Soami Santsang Beas and Ors”. Serial No. 8 2 RFA No. 45/ 2024 2. Facts giving rise to the filing of the instant appeal would reveal that the appellant herein had filed a suit for declaration and injunction seeking cancellation of gift deed claimed to have been executed by his father in favour of defendant, respondent 1 herein in respect of land measuring 24 Kanal and 17 Marlas situated at village Keran District Jammu and also land measuring 8 Kanal 02 Marlas covered under survey No 301, land measuring 8 Kanals 02 Marlas covered under survey No. 301 Min, land measuring 04 Kanals 06 Marlas covered under survey No. 302 and land measuring 04 Kanals 07 Marlas covered under survey No. 302 Min, land measuring 09 kanal 03 marlas covered under survey No. 296 min land measuring 18 Kanals 16 Marlas covered under survey No. 296 and 10 Marlas covered under survey No. 297, besides seeking a decree of injunction for restraining the defendants in the suit, respondents herein from raising any sought of construction over the suit land or changing its nature. 3. The aforesaid suit came to be filed on the premise that father of the plaintiff appellant herein was a displaced person and came to be allotted Evacuee Land measuring 43 Kanals and 13 Marlas for cultivation in terms of Section 3-A of the J&K Agrarian Reform Act, 1976 and that the father of plaintiff appellant herein being follower of defendant 1 respondent 1 herein a religious organization, upon being exploited executed a gift in favour of defendant 1 respondent 1 herein on 01.07.1991 qua the land measuring 24 Kanals 17 Marlas out of the aforesaid land with the object that the gifted land would be utilized for the benefit of the Satsang, which land, however, came to be converted into commercial by the defendant 1 respondent 1 herein and that 3 RFA No. 45/ 2024 beside the said gift deed, the father of the plaintiff appellant herein also executed a will deed on 30.11.1992 in favour of defendant 1 respondent 1 herein qua the land measuring 18 Kanals and 16 Marlas out of the aforesaid land covered under survey No. 296, 296 Min and 297 Min (supra) in violation of the provisions of the Agrarian Reforms Act, 1976 as also the provisions of J&K Alienation of Land Act, 1995 including J&K Tenancy Act Svt. 1980. 4. 1980. 4. The plaintiff, appellant herein had also stated in the suit (supra) that prior to its filing, the plaintiff had also challenged in earlier suits, the gift deed as also the will deed, in which suit by misrepresentation a compromise was forced upon the plaintiff-appellant herein by the defendant 1-respondent 1 herein and signatures thereon the said compromise were also obtained and consequently a compromise decree came to be passed on 31.12.2013, however, the same came to be challenged by the plaintiff, appellant herein in a revision petition before this Court being Civil Revision No. 08/2014, which revision petition, however, came to be dismissed on 03.01.2015, whereupon the plaintiff appellant herein filed an application Order 23 Rule 3, read with Section 151 CPC before the Court which passed the said compromise decree, for setting aside the same after the plaintiff appellant herein had preferred a review petition against the order of this Court passed in revision petition supra and the said application as well came to be dismissed on 14.05.2019, aggrieved whereof the plaintiff appellant herein filed revision petition before this Court being revision petition No. 40/2019, which revision petition was dismissed as infructuous in absence of the counsel for the plaintiff, appellant herein upon the statement of counsel for the defendant 1-respondent 1 herein who had 4 RFA No. 45/ 2024 stated that the decree stands executed and that nothing survives for adjudication in the revision petition and that the revision petition is rendered infructuous, against which dismissal of review petition came to be filed by the plaintiff-appellant herein being Review Petition No. 138/2021 pending before this Court. 5. 5. It had also been stated in the suit (supra) by the plaintiff appellant herein that mutation attested in respect of land in question in favour of the defendant 1 respondent 1 herein being mutation No. 1625/Jeem dated 10.02.2014 have had been attested pursuant to compromise decree (supra), which however, came to be set-a aside by the appellate authority upon filing of an appeal by the plaintiff appellant herein, which order of setting aside came to be challenged by the defendant 1 respondent 1 herein before the Financial Commissioner (Revenue) in a revision petition, which revision petition came to be dismissed on 10.12.2020, wherein it came to be held that there is no provision for transfer of land under Section 3-A of the Agrarian Reforms Act 1976 by virtue of a Will Deed and that Standing Order 23-A provides instructions for attestation of a mutation and the mutations which are not recognized by law are void. 6. It had also been averred in the suit (supra) by the plaintiff-appellant herein that subsequently, the defendant 1 respondent 1 herein filed an application before the SDM North, Jammu for restoration of mutation No. 1625, which has been set-aside and the SDM without issuing any notice therein the said application, restored the said mutation and in turn received a parcel of land out of the land in question, measuring 2 Kanals from the defendant 1 respondent 1 herein, 5 RFA No. 45/ 2024 wherein the said SDM North Jammu, being defendant 3 in the suit- respondent 3 herein, constructed a double story residential building and that the order of the SDM North, respondent 3 herein with regard to restoration of mutation, stands challenged by the plaintiff appellant herein before the Divisional Commissioner, Jammu in a revision petition which is pending. 7. During the pendency of the suit supra before the trial court, the defendant 1 respondent 1 herein entered appearance pursuant to summon issued thereof and filed written statement before the trial Court, besides an application under Order 7 Rule 11 CPC for rejection of the plaint on the premise that the suit is hit by Order 23 Rule 3, and 3-A of CPC being not maintainable as also being barred by limitation having been filed after a period of more than 32 years from the execution of gift deed and will deed under challenge and that the suit as well is not maintainable in presence of Section 19 and 25 of the Agrarian Provision Act as the land in question is agrarian land and that the suit is also not maintainable on the basis of principle of res-judicata, inasmuch as, that the suit for possession cannot be maintained unless the person is in possession of the suit property. 8. The application filed by the defendant 1, respondent 1 herein was opposed by filing objections thereto by the plaintiff appellant herein, whereupon the trial Court in terms of impugned order dated 23.07.2024 allowed the application and rejected the suit filed by the plaintiff appellant herein. 9. The plaintiff appellant herein has challenged the impugned order on the following grounds:- 6 RFA No. 45/ 2024 i) That the Gift deed executed by the father of the plaintiff was the conditional gift deed with the condition that the property gifted to the defendant/respondent no.1 shall only be used for the purpose of construction of Satsang Ghar, better maintenance and improvement of the conditions of requirement of Sangat/followers, comfort and shall exclusively be used for betterment/comfort of the Sangat, construction/reconstruction/addition and filling of earth which deemed fit for the betterment of the Sangat. The defendant No.1 in order to make the commercial profit selling this land to property dealer who is converting it to the plots, making flats and showing the private people for the sale of this land to earn profit by defeating the object of the gift deed and Will Deed which is further admitted by the defendant No.1 in their written statement that they are selling the same through respondent No.2, which is against the purpose of Will Deed and Gift deed. The respondent No.1 can use the land only for the betterment of Satsang Ghar and for the comforts of the followers and cannot earn profit by selling the land to general public. So the appellant is aggrieved of the situation and appellant has fresh cause of action against the illegal acts of the respondent No.1. So the purpose of the gift is when defeated by the defendant No.1, then suit is maintainable and it has been voluntarily accepted by the respondent No.1 in the written statement that the defendant No.1 is selling the suit land and some portion of it has already been sold to the defendant No.2. So suit cannot be dismissed on this ground only that the purpose for which the suit property was gifted to the defendant that purpose has been defeated by the respondent No.1 and selling the suit property to gain commercial profit which was not the object of Gift deed and Will deed. So on this ground only suit is maintainable and cannot be dismissed by invoking the provisions of Order VII rule 11 of CPC. ii) That the land allotted to the displaced persons of 1947 and then right given to the allottees under section 3- A of Agrarian Reforms Act only by Sale, Gift and mortgage of the occupancy rights but those rights cannot be transferred by virtue of Will. So the Will deed executed in favour of defendant No.1 by the father of the appellant/plaintiff does not convey title to the defendant No.1 in view of the bar created under Evacuee's (Administration of Property) Act and Section 28 (1) B of the Agrarian Reforms Act and Tenancy Act. There is only limitation provided under section 3 -A to the displaced person cultivating Evacuees Land personally 7 RFA No. 45/ 2024 and this is exception to the bar only for sale, mortgage or gift but not for Will and this exception is subject to alienation of Land Act meaning thereby the alienation can only be made in favour of living person. So the stand of the respondent that the land was allotted under section 3-A of Agrarian Reforms Act is effectually incorrect. The land was allotted under the allotment of land to displaced persons Rule 1952 and provision 3-A is inserted by Act -V of 1978. So it is not correct that land was allotted under section 3-A of Agrarian Reforms Act. iii) That in a gift deed which is of contingent nature and a condition is mentioned in it, the limitation will start from the date of happening of the contingent event. Article 59 of the Limitation Act of 1963 states that time limit for cancellation of gift deed is three years from the date of discovery of grounds for cancellation. So in this case, when the defendant No.1 started converting the land under gift deed into plots and started raising construction for commercial purpose and started construction of flats and defendant No.3 started raising construction of house on this land. Then only it came to the knowledge of the appellant that the defendants are bent upon to sell the land gifted to the defendant No.1 to gain profits of the land defeating the object for which gift is made in favour of the defendant No.1. The appellant specifically pleaded in the para No.10, 11 and 14 of the plaint that at the time of filing of the suit, the defendants were levelling the land through JCB by hiring property dealer, the defendant No.2. So this suit is filed. Meaning thereby that when defendant No.1 through defendant No.2 was changing the nature of suit land and making the plots of the land to sell the same and reply to these paras, the defendant admitted that they are selling the land and this gave rise to fresh cause of action and limitation will start from running from the date of knowledge of the appellant that the condition on which gift was made is being violated by the defendant No.1 and gives rise to fresh cause of action to file fresh suit to challenge the gift deed and suit is within limitation. So the order and decree passed by the Ld Ist Addl District Juage Jammu is bad in the eyes of law. If no specific date is mentioned, although it is specifically pleaded, in that situation it is a disputed question of facts which needs to be adjudicated by leading evidence. So the order impugned and decree passed by the court below is required to be set aside. 8 RFA No. 45/ 2024 iv) That it is clear case of the appellant that this land was allotted to the father of the appellant namely Bulla Ram on the basis of family strength being displaced persons of 1947 and the land is Evacuees land which was allotted. So land cannot be said to be an ancestral property/co-parcenary. If there is any mention in the plaint, it is due inadvertence and mistake and against the revenue record which specifically stated during arguments before the court below. The consent decree obtained from the court of Ld. Sub Registrar Jammu is obtained by playing fraud with the court and in those decrees the Ld. Sub Registrar has not adjudicated/ applied mind on the following points:- a) That the land for which mutation under section 3-A of the Agrarian Reforms Act is passed whether it could be disposed of by virtue of a Will when there is specific bar created under Agrarian Reforms Act, Evacuees Property Act and Tenancy Act. The Hon'ble High Court of Jammu and Kashmir at Jammu in S. Kirpal Singh Vs S. Suchet Singh and others in 2017 Vol -V JKLRJ ,page 96 = 2000 SLJ 225 in Division Bench held that as the original tenant is survived two sons, the question of appointing heirs succeeding to his Estate does not arise. The question arises who is appointed here assuming that an heir can be appointed by Will, but it must be with the consent of landlord. Not otherwise. Further as section 67 is followed by section 68, it means an heir can be appointed only when there is no one to succeed under section 67 of the Tenancy Act. Besides as per the mandate of Section 68, appointment of an heir or Chella by the occupancy tenant has to be with the consent of landlord who in this case is Custodian. Since section 3-A does not exempt application of section 68, the Will executed by Bella Singh has to be excluded while determining the occupancy right. Transfer of Occupancy right u/s 3-A of the Agrarian Reforms Act is only permissible by virtue of sale, mortgage and Gift and cannot be transferred by virtue of Will and as the will is not executed with the consent of the Landlord who is the custodian of the property as required under section 68 of the Tenancy Act. In view of the above we find that writ court erred in holding that transfer of occupancy right by sale, mortgage and gift includes transfer by Will or testamentary deposition also since the occupancy rights are statutory rights conferred by Tenancy Act and the Act also prescribed the 9 RFA No. 45/ 2024 mode of transfer and inheritance. The same cannot be enlarged by general law of inheritance or Hindu Succession Act. b) That the provisions of Section 67 of Tenancy Act are in Para-materia to section 59 of Punjab Tenancy Act and unless there is any other provision to the contrary, an occupancy tenant has no right to dispose of his interest by Will. Swaran Singh Vs Kartar Singh. c) That whether a Will and Gift deed can be executed in favour of non- living person which is barred by section -4 of the Land Alienation Act. v) That the defendant No.1 in some places shown itself as Trust and some places shown itself as society. The core question is whether on the date of execution of Gift Deed and Will Deed the respondent No.1 was a trust or a Society registered under the Jammu and Kashmir Society Registration Act. The defendant No.1 did not place on record the copy of the bye- laws of the respondent No.1 showing his position in 1991. Whereas in the compromise decree passed shows the defendant No.1 as Trust and if defendant No.1 is Trust then provisions of Society Registration Act are not applicable to Society. vi) That the provisions of section-6 of Society Registration Act are not properly interpreted. The appellant cited judgements in this regard which are re- produced by the Ld trial court in para-5 of the order but nowhere it is discussed in whole of this order how these judgements are not applicable in the present facts and circumstances of the case. vii) That the observation made by the Ld. Trial court that the suit for decree of Permanent Prohibitory Injunction restraining the defendant No.1 from raising construction in the suit property is not maintainable as per Central Law as injunction cannot be claimed by a person until and unless in possession of suit property. As per the revenue record, the consent decree passed by the Ld court, the answering defendant No.1 is in possession of suit property and a part of it already stand transferred to the defendant No.2 by way of sale deed and answering defendant No.1 and 2 are enjoying its usufructs without any demur and therefore, plaintiff is not entitled to seek a relief of permanent prohibitory injunction against the answering defendant. However, this observation of Hon'ble court is not correct as per the facts of the case. The proposition of law is simplicitor suit for injunction is not maintainable. Heard learned counsel for the parties and perused the record. 10 RFA No. 45/ 2024 10. It is settled law that the merits of the controversy of the amount of evidence cannot be examined while deciding an application for rejection of a plaint under Order 7 Rule 11 CPC. It is consistent view of the Apex Court that Order 7 Rule 11 CPC is a special remedy that allows a Court to summarily dismissed a suit without recording evidence or conducting a trial, and in fact the purpose of Order 7 Rule 11 CPC is to reject a plaint based on the grounds in Order 7 Rule 11, inter-alia, if there is no cause of action or the suit is barred by law. However, while deciding a case of rejection of plaint, the Court has to only consider the averments in the plaint and the documents attached to it and has not to consider the written statement or documents filed by the defendant. The Apex Court in case titled as, Srihari Hanumandas Totala Vs. Hemant Vithal Kamat, reported in AIR 2021 SC 3802 has held that an application under Order 7 Rule 11 CPC must be decided within the four corners of the plaint. 11. Keeping in mind the aforesaid position of law and reverting back to the case in hand, the trial Court while deciding the application for rejection of plaint has misdirected itself, qua the application of the cause of action, res-judicata, provisions of the Agrarian Reforms Act, inasmuch as the nomenclature of the defendant 1-respondent1 trust and has in the process grossly erred and essentially recorded findings on the merits of the case, as if it was deciding the case after trial. A meaningful reading of the impugned order suggests that the trial Court has been oblivious to the principles of law regulating and governing the rejection of a plaint enshrined under Order 7 Rule 11 CPC. The matter 11 RFA No. 45/ 2024 seemingly has not received appropriate consideration from the trial Court, thus, necessitating the remanding of the same back to the trial Court for its consideration. 12. Accordingly, the instant appeal is allowed and the impugned order dated 23.07.2024 is set aside with a direction to the trial Court to revisit and reconsider the application of the defendant 1-respondent 1 herein filed under Order 7 Rule 11 CPC for rejection of the plaint and pass appropriate orders in accordance with law. 13. Parties to appear before the trial Court on 30.01.2025. (JAVED IQBAL WANI) JUDGE Jammu 01.01.2025 Javid Iqbal Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Javid Iqbal 2025.01.07 16:07 I attest to the accuracy and integrity of this document