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2021 DIGILAW 121 (JK)

Mushtaq Ahmad Khan v. Rafiq Ahmad Sheikh

2021-03-26

RAJNESH OSWAL

body2021
JUDGMENT : RAJNESH OSWAL, J. 1. Through the medium of present writ petition the petitioner has assailed the order dated 19th April, 2018 passed by the learned Chief Judicial Magistrate, Anantnag (hereinafter referred to as the “trial court”) by virtue of which the shop that was initially attached was ordered to be restored to the tenant/applicant therein. 2. The present petition has been filed by the petitioner on the grounds:- (a) That the learned trial court had illegally and in blatant violation of the relevant provisions of law attached the property which jointly belongs to the petitioner and proforma respondents and has directed the restoration of shop in favour of contesting respondent. (b) That the learned trial Magistrate while exercising powers under Criminal Procedure Code cannot decide the intricate questions of law and fact much less to the entitlement of the rival parties to the property attached. (c) That the learned trial Magistrate has not conducted any enquiry whatsoever and in illegal exercise of jurisdiction has directed the restoration of the shop in favour of contesting respondents. (d) That the impugned order is in contravention to the directions of this Court made in OWP No. 4/2018. 3. Before considering the issues raised by the petitioner it would be appropriate to have a brief resume of facts which are as under. 4. It is stated that the petitioner and proforma respondents being the legal heirs of deceased Ghulam Qadir Khan have inherited 9 marlas 1 Sirsai and 11 feet land falling under Survey No. 1557-158 min situated at Mohalla Mehman Anantnang along-with 3 storied house constructed thereon and the brother of the petitioner namely Asif Ahmad Khan (proforma respondent no. 3) had taken some amount as loan from respondent nos. 1 and 2 and the amount has already been liquidated and the contesting respondents had taken vehicle bearing Registration No. JK03D-1030 in lieu of the said amount belonging to the petitioner and proforma respondents. Besides the petitioner and proforma respondents have paid Rs.3 lacs to the respondent no. 1 and Rs.5.47 lacs to the respondent no. 2. 1 and 2 and the amount has already been liquidated and the contesting respondents had taken vehicle bearing Registration No. JK03D-1030 in lieu of the said amount belonging to the petitioner and proforma respondents. Besides the petitioner and proforma respondents have paid Rs.3 lacs to the respondent no. 1 and Rs.5.47 lacs to the respondent no. 2. It is further stated that false and frivolous complaint came to be filed, captioned as Noor-Ud-Din Khatana versus Asif Ahmad Khan which is pending before the learned Chief Judicial Magistrate Anantnag wherein the complainant Noor-Ud-Din Khatana has alleged commission of offences under Section 403, 406, 409, 417, 420 and 506 RPC against the proforma respondent no. 3 and the other two accused and it is further stated that due to absence of the respondent no. 3, the learned Magistrate vide order dated 22nd February, 2016 ordered the attachment of the house and shop belonging to the petitioner. On 26.03.2016, the proforma respondent no. 3 surrendered and was remanded to judicial custody and thereafter on 29th March 2016 the petitioner laid a motion seeking release of the property as the said property belonged to the petitioner and proforma respondents jointly and had been attached from the joint possession of petitioner and proforma respondents. It is further stated that one more application was filed on behalf of contesting respondents seeking recall of attachment order dated 22nd February, 2016 with respect to the shop in question on the ground that proforma respondent no. 3 had allegedly entered into an agreement to let the said shop in favour of contesting respondents. 5. Vide order dated 29th March, 2016, the residential house was released from attachment in favour of petitioner and thereafter learned Chief Judicial Magistrate vide order dated 19th April, 2018 restored the said shop in favour of contesting respondent. It is further stated that in the meanwhile petitioner approached the concerned revenue agencies, including Dy. Commissioner, Anantnag and Tehsildar, Anantnag seeking partition of the joint property of the petitioner and proforma respondents, that was jointly inherited by them, because under the garb of attachment order passed by learned trial court, the property of the petitioner and all the proforma respondents was illegally attached. Commissioner, Anantnag and Tehsildar, Anantnag seeking partition of the joint property of the petitioner and proforma respondents, that was jointly inherited by them, because under the garb of attachment order passed by learned trial court, the property of the petitioner and all the proforma respondents was illegally attached. Due to failure of agencies to redress the grievance of the petitioner, the petitioner was constrained to approach this court through writ petition bearing OWP No. 04/2018 that was disposed of by this Court vide order dated 10th January, 2018 and the Tehsildar, Anantnag was directed to accord consideration to the claim of petitioner. It is further stated that in compliance to the directions of the court, the concerned revenue agencies have conducted partition between the petitioner and the proforma respondent and the shop and residential house mentioned above has fallen to the share of the petitioner and the petitioner is in ownership and possession of the shop and the residential house that was earlier attached by the learned trial Magistrate. 6. It is also stated that the petitioner and proforma respondents have jointly filed the suit against the contesting respondents challenging the fraudulent, forged and fabricated agreement/rent deed relied upon by the contesting respondents and the said suit was dismissed on 14th March, 2018, and regarding which they have filed restoration application. 7. Mr. Rizwan Bhat, has vehemently argued that the shop belongs to the petitioner and proforma respondents jointly and as such, same could not have been attached by the learned trial Magistrate and he has further argued that the property stands partitioned between the petitioner and proforma respondents. 8. Per contra, Mr. P.S. Ahmad, vehemently submits that the respondent nos. 1 and 2 are the tenants and learned trial court after perusing the rent agreement ordered the release of shop in question of respondent no. 1 and 2 and it is further argued by Mr. P.S. Ahmad that the suit stands dismissed and only restoration application is pending before the learned trial Court. 9. Heard and perused the record. 10. Before appreciating the rival contentions of the parties, this Court would like to observe that on 5th March, 2021 both the counsels concluded their arguments, however liberty was granted to the parties to file the written arguments in not more than three pages along-with supporting judgments. 9. Heard and perused the record. 10. Before appreciating the rival contentions of the parties, this Court would like to observe that on 5th March, 2021 both the counsels concluded their arguments, however liberty was granted to the parties to file the written arguments in not more than three pages along-with supporting judgments. Both the parties have filed their respective written submissions and strangely enough the petitioner along-with written submissions instead of placing on record any supportive judgment has annexed the judgment and decree passed in suit titled “Asif Ahmad Khan and others Versus Mohammad Rafiq Sheikh and another” dated 6th June, 2019, whereby the suit filed by the petitioner stands decreed in favour of petitioner and against the respondent nos. 1 and 2. In the said judgment and decree, court has restrained the respondent nos. 1 and 2 from causing any interference with the peaceful possession of the petitioner over the shop in question. Needless to mention herein that the said judgment was passed in the month of June, 2019 but no effort was made by the petitioner to bring it to the notice of this Court or to the respondent no. 1 and 2 as the said judgment and decree was passed in ex-parte. More-so during the course of arguments, no reference was made with regard to the passing of the said judgment and decree, as such; the Court declines to take into consideration the said judgment and decree and this Court proceeds to decide the matter on the basis of record as was available at the time of conclusion of arguments on 5th March, 2021. It is further evident that the respondent nos. 1 and 2 while filing their written submissions have not replied to the said contention and rightly so because same was never raised when the arguments were concluded. 11. From the record it is not disputed that the shop was attached by the learned trial Magistrate in a complaint titled Noor-Ud-din Khatana vs. Asif Ahmad Khan. From the perusal of the application filed by the petitioner it transpires that the said shop was initially released in favour of Rafiq Ahmad Sheikh on 14th March, 2016, however, the said shop was again attached on 17th March, 2016 when the said application was filed by Mushtaq Ahmad Khan. From the perusal of the application filed by the petitioner it transpires that the said shop was initially released in favour of Rafiq Ahmad Sheikh on 14th March, 2016, however, the said shop was again attached on 17th March, 2016 when the said application was filed by Mushtaq Ahmad Khan. In the said application it was stated that the accused i.e. Asif Ahmad Khan has never executed any rent deed in respect of shop in question in favour of any person and the rent deed produced by Rafiq Ahmad Sheikh is fake and forged. The learned trial court after perusing the rent deed released the shop in favour of tenant i.e. respondent nos. 1 and 2. The said rent deed was challenged by the petitioner and proforma respondents and the said suit was decreed in part in ex-parte. The learned trial Magistrate while releasing the shop in favour of respondent no. 1 has observed that shop was given on rent with effect from December, 2013 against an amount of Rs. 20,000/- and it was further highlighted that the landlord has acknowledged receipt of Rs. 11 lacs as premium from the tenant, so once there was a rent deed, prima facie depicting the possession of respondent nos. 1 and 2, the learned trial Magistrate has rightly released the shop in favour of respondent nos. 1 and 2 and said finding can neither be termed as perverse or erroneous in view of record available before the trial Magistrate, therefore, this Court does not find any illegality in the order impugned. The petition, as such, is found to be without any merit and the same is dismissed accordingly. However, the petitioner shall be at liberty to approach the learned trial Magistrate concerned by placing an appropriate motion for redressal of his grievances while bringing the subsequent facts to the notice of the learned trial Magistrate. Respondents shall also be at liberty to avail an appropriate remedy as available under law.