Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 261 (JK)

Masooda v. State of J&K

2018-05-04

SANJEEV KUMAR

body2018
JUDGMENT : 1. This essentially is a petition moved by the petitioners under Section 104 of the Constitution of Jammu and Kashmir for quashing the decree dated 23.11.2013 passed by the National Lok Adalat, Srinagar in file No.750/NRBT (Lok Adalat). 2. Briefly put, the facts as projected in this petition are that there is some dispute between the petitioners on the one hand and respondent Nos. 6 to 8 on the other hand with regard to a passage which allegedly exists between the houses of the petitioners and the aforesaid respondents. It is claimed by the petitioners that the aforesaid passage is a public pathway over which every person residing in the locality including the petitioners have a right of egress and ingress. On the other hand, the claim of the respondent Nos. 6 to 8 is that the passage which the petitioners claim as a public passage is their private passage which they have purchased from lawful owner and are in peaceful possession thereof. There is some reference to the earlier litigation between the parties with regard to the aforesaid passage both civil as well as criminal. What the petitioners are aggrieved of herein is a compromise decree passed in terms of the order of National Lok Adalat, Srinagar on 23.11.2013. The aforesaid decree, as is apparent from the perusal of the record, has been passed in a suit filed by respondent No.6 against the authorities of Srinagar Municipal Corporation seeking a decree of permanent prohibitory injunction restraining the municipal authorities, the defendants in the suit, from interfering or causing any interference in the suit gate situated at Hussani Lane Opposite Jammia Masjid Alhades Channapora, Srinagar. A perusal of the plaint filed by respondent No.6 would further show that the suit was filed on the ground that respondent No.6, the plaintiff in the suit, erected a gate on his private passage and that the respondent authorities had no right, title or interest to interfere with the erection of the aforesaid gate. The issue involved was as to whether the aforesaid passage where the gate has been installed by the respondent No.6 was a public passage or not. It appears that the suit was referred to National Lok Adalat for amicable settlement. The issue involved was as to whether the aforesaid passage where the gate has been installed by the respondent No.6 was a public passage or not. It appears that the suit was referred to National Lok Adalat for amicable settlement. The National Lok Adalat, Srinagar on the basis of the compromise arrived at between the parties, passed the decree which reads thus:- “The defendants as stated by learned counsel for the defendants shall not cause any interference in the construction of gate by plaintiff on spot for the erection of which defendants have accorded sanction in favour of plaintiff. Accordingly, a decree for permanent injunction restraining the defendants from causing any interference in the erection/construction of gate on spot by plaintiff for which plaintiff has been accorded sanction is passed in favour of the plaintiff against the defendant. No order of costs.” It is this decree which is assailed by the petitioners in this petition. 3. The learned counsel for the petitioners submits that the aforesaid decree is staring at the petitioners’ right and the same being collusive and detrimental to their interests cannot sustain in the eye of law. He further submits that the petitioners had actually moved an application for their impleadment as party defendants in the suit but before said application could be decided, the matter came to be referred to the National Lok Adalat, Srinagar, that too, without any notice to the petitioners. Learned counsel, thus, urges that in the face of the aforesaid decree which had been passed on the basis of so called compromise arrived at between respondent No.6 on the one hand and municipal authorities on the other hand, they have been left remedy and without there being proper adjudication of the issue the respondent No.6 has been permitted to erect the gate and consequently use the public passage as his private lane. 4. I have considered the submissions made by learned counsel for the parties and perused the record. 5. Needless to say that the decree in question is a decree in personam and, therefore, would bind only the parties thereto. Indisputably, the petitioners were not party in the suit and, therefore, the decree which is binding only on the municipal authorities cannot, in any manner, affect the rights of the petitioners or bind them in any manner. 5. Needless to say that the decree in question is a decree in personam and, therefore, would bind only the parties thereto. Indisputably, the petitioners were not party in the suit and, therefore, the decree which is binding only on the municipal authorities cannot, in any manner, affect the rights of the petitioners or bind them in any manner. The dispute in the suit which culminated into passing of the impugned decree was neither with regard to the title over the passage nor by virtue of the decree impugned there is any declaration issued by the Court viz-a-viz the status of the alleged passage, the bone of contention between the petitioners and respondent No.6. Since the decree binds only the parties to the suit and does not affect, in any manner, the rights of the petitioners, as such, the petitioners have no locus to challenge the same. 6. That being so, instant petition is not maintainable and the same is, accordingly, dismissed. However, the petitioners shall be at liberty to work out their remedy as may be available to establish their claim viz-a-viz the passage in question. Nothing said herein above and in the decree impugned would affect the rights of the petitioners which they may have to establish separately by invoking appropriate remedy as may be available under law.