Jammu & Kashmir High Court - Srinagar Bench

Mushtaq Ahmad Khan vs Rafiq Ahmad Sheikh And Anr on 26 April, 2021

                                   HIGH COURT OF JAMMU AND KASHMIR AT
                                                SRINAGAR
                                                                          Reserved on 05.03.2021
                                                                        Pronounced on:26.03.2021

                                                                                CRMC No.439/2018

                           MUSHTAQ AHMAD KHAN                             ...Petitioner/Applicant(s)

                                     Through :- Mr. Rizwan Bhat, Advocate
                                     V/s   <




                           RAFIQ AHMAD SHEIKH AND ANR.
                           't
                                                                      .....Respondent (s)

                                          Through :- Mr. P.S. Ahmad, Advocate

                           Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE


                                                        JUDGMENT

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.

SHAMEEM HAMID MIR 2021.04.02 14:49 (b) That the learned trial Magistrate while exercising powers I attest to the accuracy and integrity of this document

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.

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 & 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 SHAMEEM HAMID MIR 2021.04.02 14:49 I attest to the accuracy and integrity of this document

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 SHAMEEM HAMID MIR 2021.04.02 14:49 that in the meanwhile petitioner approached the concerned revenue I attest to the accuracy and integrity of this document

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. 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 SHAMEEM HAMID MIR 2021.04.02 14:49 I attest to the accuracy and integrity of this document

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 & 2 are the tenants and learned trial court after

perusing the rent agreement ordered the release of shop in question of

respondent no.1 & 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. 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 & 2. In the said judgment and decree, court has

SHAMEEM HAMID MIR 2021.04.02 14:49 restrained the respondent nos.1 & 2 from causing any interference I attest to the accuracy and integrity of this document

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 & 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 5 th March,

2021. It is further evident that the respondent nos.1 & 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 versus 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 17 th 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 SHAMEEM HAMID MIR 2021.04.02 14:49 Sheikh is fake and forged. The learned trial court after perusing the I attest to the accuracy and integrity of this document

rent deed released the shop in favour of tenant i.e. respondent nos.1 &

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 & 2, the

learned trial Magistrate has rightly released the shop in favour of

respondent nos.1 & 2 and said finding can neither be termed as

perverse or erroneous in view of record available before the trial