' To seek the annulment of the judgment and decree of the learned District Judge Kotli, dated February 28, 1990 whereby the appeal of the appellants was dismissed by the learned District Judge, the present appeal has been filed.
2. The present appeal arises out of the suit filed by the appellants (plaintiffs). The plaintiffs/appellants filed a suit for permanent injunction in the Court of Additional Sub-Judge Kotli on April 30, 1979. It was alleged by the plaintiffs that the land measuring 53 Kanals and 7 Marlas bearing Survey No, 761/1 and land measuring 7 Kanals and 5 Marlas bearing survey No,771, situaLed in village Plahil Kalian Tehsil Kotli is under the possession of the plaintiffs, since their ancestoRs, Now the defendants want to trespass into this land. They sought a decree for permanent injunction, that the defendants should restrain from interfering in their possession.
3. The suit was contested by the defendants and the learned Additional Sub-Judge, Kotli vide his judgment and decree dated November 20, 1983, dismissed the suit for want of jurisdiction and held that the Civil Court has no jurisdiction to adjudicate upon the matter.
4. Feeling aggrieved by the decision of the learned Additional Sub-Judge, Kotli, the appellants filed an appeal in the Court of District Judge, Kotli, which was also dismissed by the learned District Judge, Kotli for want of jurisdiction. He also concurred with the finding of the learned Additional Sub-Judge, Kotli. The present appeal has been filed against this judgment and decree of the learned District Judge, Kotli.
5. The learned Counsel for the appellants argued that the judgments of the both of the lower Courts are illegal and liable to be set aside. The learned counsel maintained, that both of the lower Courts have failed to consider, that the suit for permanent injunction has been filed by the plaintiffs against a private party and the plaintiffs prayed for a decree of permanent injunction against the defendants (private party) thus the suit is based on the apprehension of infringement of civil right and section 9 of the Azad Kashmir Grant of Khalsa Waste Land Shamilat-iDeh Act of 1966 has no bearing on the facts of the present case.
6. On the other hand, the learned counsel for the respondents argued that section 9 of the Grant of Khalsa Waste Land Shamilat-i-Dch Act of 1966, clearly debars the jurisdiction of the Civil Court regarding the above-mentioned Act, thus the decision of both of the lower Courts is quite in accordance with law. He further maintained, that it has already been resolved by the High Court of Azad Jammu and Kashmir that the jurisdiction of the Civil Court in such like matters is barred. In this respect he has cited PLD 1970 Azad J&K 35.
7 . I have heard the learned counsel for the parties and have perused the record of the case.
8. The basic principle for the determination of the jurisdiction of the Civil Court is, that the contents of the plaint arc only to be looked into because Civil Court has to decide upon the cause of action on the basis of contents of the plaint. It does not matter what has been alleged in the written statement and only the plaintiff's cause of action is to be looked into from the plaint, irrespective of the matter what has been alleged in the written statement.
9. The question of the jurisdiction is to be decided on the basis of the averments of the plaint and not on the basis of any defence which has been set up in the written statement.
10. To resolve the proposition that whether in a particular case the jurisdiction of Civil Court has been ousted or not depends upon the construction of the plaint and wording of the ouster clause.
11. Section 9 of the C.P.C. Contemplates that the Civil Courts have jurisdiction to try all the suits of civil nature except those in which the jurisdiction is either expressly or impliedly barred. The question of exclusion of jurisdiction of Civil Courts expressly or by necessary implication is to be decided in every case according to the words used in the special provision of the statute.
12. Now the question arises that whether in the light of the averments of the plaint and section 9 of the Grant of Khalsa Waste Land Shamilat-i-Deh Act of 1966, the jurisdiction of the Civil Courts has been ousted or not.
13. Section 9 of the Grant of Khalsa Waste Land Shamilat-i-Deh Act reads as under:- "Section 9. (1) No Civil Court shall have jurisdiction on any matter which the Government or any Revenue Officer is competent to dispose of under this Act and shall not take cognizance of the manner in which the Government or any Revenue Officer exercises any power vested in it or in him by or under this Act or under Government Order No,282/57."
14. According to section 9 of the aforesaid Act of 1966, the jurisdiction of Civil Court has been ousted in respect of all those matters, upon which the Government or Revenue Officers have competency to lay their hands. Civil Court will not take cognizance of these matters in which the Government or any Revenue Officers can exercise the power vested in them by or under this Act.
15. In the present case, a private party has filed a suit against the other private party, that he should restrain from interfering in his possession. No such like powers have been given to the Revenue Officers under the Government Order No,282/57 or under this Act, neither the Revenue Officer or the Government is competent to prevent any person from interfering into the possession of other. Thus, section 9 has no bearing on the facts of the present case. It cannot be said that the jurisdiction of the Civil Court has been ousted in this suit.
16. As far as ruling referred by the learned counsel for the respondents PLD 1975 Azad J&K 34, is concerned, the facts of that case were quite distinguishable. In that case a suit was filed against the Azad Kashmir Government and the facts of that case were that the Government passed an Order No,282/57, dated 22-7-1957, which was published in the Government Gazette, dated 23rd July, 1957, ordering that all such persons who are proved to have been in continuous possession of Khalsa Land without the permission of the Government and are recorded as such till the 1st day of January, 1950, shall be granted proprietary rights of such land subject to certain limitations. The plaintiff made an application to the Revenue Assistant Poonch on 13-9-1949 praying that he be allowed to break up 50 Kanals from the Khalsa land in Chotta Galla. On measurement and preparation of the plan the land under the plaintiff's possession measured 21 Kanals and 4 Marlas.
The Revenue Authority did not enter the land in the name of the plaintiff as owner. He then tiled a civil suit in the Court of the Sub-Judge Rawalakote, for a declaration as stated above.
17. Thus, the case-law referred by the learned counsel for the respondents has no bearing on the facts of the present case.
18. Both the lower Courts have simply dismissed the case of the appellants in the light of section 9 of the Azad Jammu and Kashmir Grant of Khalsa Waste Land Shamilat-i-Deh Act of 1966 and relied on the contents of the written statement. But both of the lower Courts have not taken the pain of going into the wording section 9, and facts of the present case.
19. In the present case as stated above the plaintiffs have tiled a suit against the private party for restraining them from interfering in their possession. Nothing has been provided in the Azad Jammu and Kashmir Grant of Khalsa Waste Land Shamilat-i-Deh Act of 1966 to deal with such like eventuality nor any such like powers have been given to any Revenue Officer or Government under this Act.
In view of the above-mentioned circumstances, this appeal is accepted and the judgments and decrees of the both of the lower Courts are set aside and the case is remanded back to Court of Additional Sub-Judge, Kotli for the decision on merits. No order as to the costs.