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2011 DIGILAW 562 (JK)

Ab. Rashid Shah v. Mohd. Yaqoob Shah

2011-10-22

Mansoor Ahmad Mir

body2011
1. This Civil 2nd appeal is directed against the judgment and decree dated 2nd of March, 2010 passed by District Judge, Kulgam on the grounds taken in the memo of appeal. 2. Heard. I am of the considered view that no substantial question of law is involved in this appeal and it merits to be dismissed for the following reasons:- Mohammad Yaqoob Shah-respondent No. 1 filed a suit for grant of decree of permanent injunction against the appellant herein and following issues came to be framed:- 1. Whether the suit land measuring 17 marlas described in Para 1 of the plaint falls under khasra No. 286, if not what would be its effect on the suit? OPP. 2. Whether the whole suit land had been purchased by father of plaintiff by virtue of a registered sale deed and after the death of his father the whole land has vested to the plaintiff? OPP 3. Whether the whole suit land described in para 1 of the plaint is in exclusive possession of the plaintiff? OPP 4. If issue No. 3 is decided in affirmative then whether defendants are unnecessessarily and illegally causing interference with the possession of the plaintiff over the suit land? OPP 5. Whether plaintiff has no cause of action to file the suit? OPD 6. Reief." 3. Defendant Abdul Rashid admitted the possession of the plaintiff over the suit land and also admitted that they are causing interference. The trial court after scanning the evidence granted the suit and restrained the defendants from causing interference. 4. Feeling aggrieved the appellants questioned the same by the medium of 1st Civil Appeal, was dismissed vide impugned judgment. Admittedly the defendant-appellant is not in possession and the plaintiff-respondent No. 1 is in possession of the suit land. Sale deed produced by the plaintiff is registered and is on the file. 5. Appellant has not questioned the same. It is apt to reproduce the last but relevant para of the judgment of the trial court herein:- "The plaintiff is being hire of the Wall Mohd, who has purchased 17 marlas of land from Nabe, Abae, Jale and others through a sale deed, no other hire has come on record except the plaintiff. Thus plaintiff has right to protect his property from interference. Thus plaintiff has right to protect his property from interference. As such he has cause of action to file the suit against those who interfere in the property under his possession as owner. The mere plea of the defendants that he is holding 9 marlas of land on spot is not substantial to show that plaintiff has no cause of action, when no cogent evidence to rebut the stand of the plaintiff to filing the present suit. As such this issue is also decided against the defendants and in favour of the plaintiff." 6. It is also apt to reproduce the relevant portion of the judgment of the appellate court:- "........ ..Even he has gone to the extent of saying that he will interfere with this piece of land. As said earlier once land has been disposed of by virtue of registered sale deed, it is the conclusive proof about the disposition of the land having been purchased by the donee and under sec. 49 of the Registration Act being conclusive proof no other proof is required to prove its proprietary. Even if there has been manipulation of the records in the revenue papers that will not in any way effect the registered sale deed which is as old as on 22nd of Kartik 1996 Bikrami. The plaintiff in my opinion has clearly established the case before the trial court and trial court has correctly appreciated the material available on the file in the form of pleadings, documents and the oral statements of the witnesses and has correctly decided and has decreed the suit......" 7. The trial court and appellate court have rightly appreciated the evidence. In the given circumstances, it. cannot be said and held that the findings returned by the courts below are perverse, illegal and erroneous. No question of law not to speak of substantial question of law is involved in the matter, therefore, the appeal needs outright dismissal. The apex court in case reported as AIR 2006 SCW 2404 titled Gurdev Kaur & Ors. v. Kaki & Ors. has laid down the same principle. 8. Thus the appeal is dismissed.