Mohd. Alam And Ors. vs Mohd. Ismail And Ors. on 17 November, 2017

[Cites 0, Cited by 0]

Jammu & Kashmir High Court

Mohd. Alam And Ors. vs Mohd. Ismail And Ors. on 17 November, 2017

Bench: Sanjay Kumar Gupta

       HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

OW u/s 104 of Constitution of J&K State No.141/2017 & MP No.01/2017
Caveat No.2793/2017
                                                     Date of order:17.11.2017
          Mohd. Alam & ors.                     Vs.        Mohd. Ismail & ors..
Coram:
           Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner (s) :    Mr. O. P. Thakur, Advocate.
For respondent (s) :

i)     Whether to be reported in
       Digest/Journal                                 :   Yes/No.
ii)    Whether approved for reporting
       in Press/Media                                 :   Yes/No.

Caveat No.2793/2017
       Caveat stands discharged.
OW u/s 104 No.141/2017 & MP No.01/2017

Brief facts of the case are that the predecessor-in-interest of the petitioner and the respondents were co-sharer of the land Khewat No.223/208 situated at village Rampura, Tehsil and District Rajouri and the aforesaid Khewat number was consisting of different Khasra numbers including Khasra No.628 and total land under Khasra No.628 is 09 Marlas. After the death of the father of respondent No.1, respondent No.1 got mutation No.202 attested in his favour in respondent of land including the land falling under Khasra No.208 and under Khewat No.208, he was having 1/9th share only. Total land under Khewat No.208 was 47 Kanals 14 Marlas and his 1/9th share under the Khewat No.208 come to 05 Kanals 06 Marlas only. Respondent No.1 is in possession of the land much more than 1/9th share out of Khewat No.208 and he is in possession of the land measuring 01 Kanal 09 Marlas under Khasra No.584 which also falls in Khewat No.208. He is also in possession of the land under Khasra Nos.590 (01K-09M) & 615(06M). The aforesaid two Khasra numbers are also the part of Khewat No.208. It is averred OW u/s 104 of Constitution of J&K No.141/2017 of Page 1 of 3 that the suit land measuring 09 Marlas falling under Khasra No.628, Khewat No.208 was owned and possessed by father of the petitioner and after his death, the aforesaid land came in possession of the petitioner. The petitioner has established Car Service Station on 03 marlas of land out of his share measuring 09 marlas for the last more than 25 years and also installed Compressor Machine on 1½ marlas of land. He is also in possession of 1½ marlas of vacant piece of land and remaining 03 marlas of land had come under the alignment of road. On the application of respondent No.1, Girdawries entries existing in the name of the petitioner were set aside and thereafter fresh proceedings were initiated by the Tehsildar Rajouri after providing an opportunity of being heard to both the parties and Tehsildar has attested Mutation No.66/Jeem whereby the petitioner has been found in possession of land measuring 06 marlas in Khasra No.628. It is further averred that respondent No.1 is in possession of land more than his share under Khewat No.208 and he filed a suit for possession in respect of the land measuring 09 marlas comprising under Khasra No.628 which is covered in Khewat No.208. The petitioner engaged Sh. Deepak Sharma, Advocate, as his counsel who has filed the written statement but subsequently, he fell ill as he was suffering from kidney and liver problem and died, thereafter the petitioner has engaged Sh. Mohd. Yousef Niaz, Advocate, as his counsel. It is submitted in the writ petition that the evidence of respondent No.1 was closed and the petitioner was directed to lead evidence and on verification, new counsel engaged by the petitioner came to know that the list of witnesses has not been furnished on behalf of the petitioner as the petitioner is rustic villager and had no knowledge about filing of the list of witnesses within 15 days from the date of framing of the issues. Thereafter, new counsel submitted an application-cum-list of witnesses before the learned Sub- Judge, Rajouri where the suit is pending on 17.05.2017 and however, the said application was dismissed on 22.08.2017 by learned Sub-Judge, Rajouri.

From the perusal of the application filed on 17.05.2017, admittedly there is no ground for not filing the list of witnesses within time. The Court below has dismissed the aforesaid application vide order dated 22.08.2017.

OW u/s 104 of Constitution of J&K No.141/2017 of Page 2 of 3

Today when the matter was heard, counsel for the petitioner has stated that he wants to call only official witnesses Nos.1 to 3.

Issue notice to respondent No.1 only, returnable within 10 days. List on 08.12.2017.

(Sanjay Kumar Gupta) Judge Jammu 17.11.2017 Ram Murti OW u/s 104 of Constitution of J&K No.141/2017 of Page 3 of 3

Unlock Advanced Research with PRISMAI

Jammu & Kashmir High Court