Baljit Singh Manhas vs J.D.A. And Ors
2021 Latest Caselaw 879 j&K

                                                            S. No. 201
      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                   CSA No. 21/2009
                                                   IA No. 13/2011

Baljit Singh Manhas                                             ...Appellant(s)

                                Through :- Mr. Narinder Kumar Attri, Adv.
      V/s

J.D.A. and ors.                                                ...Respondent(s)

                                Through :- Mr. Adarsh Sharma, Advocate


Coram:      HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                ORDER

1. A suit for declaration and injunction has been filed by the plaintiff-

appellant herein before the trial court claiming therein to be in possession of

land measuring 2 kanals on the basis of a gift deed dated 20.03.1998,

registered on the same date by Sub-Registrar Jammu and10 marlas of land

obtained by way of gift in terms of gift deed dated 13.11.1997, registered on

the same date by the Sub-Registrar, Jammu as also land measuring 1 kanal 5

marlas obtained through registered sale deed dated 08.01.1994 registered by

the Sub-Registrar Jammu. The land covered in the aforesaid

documents/instruments is stated to have been covered under survey No.

1188 min, khewat No. 72 min and khata No. 759 min situated at Paloura

near Housing Colony Janipur, Jammu.

2. A written statement has been filed by the defendants-respondents

herein to the suit wherein the execution of the aforesaid two gift deeds and a

sale deed was not denied yet, the land claimed by the plaintiff-appellant

herein was claimed to be in fact JDA land covered under Khasra No. 1189

min.

3. For reference and appreciation following issues were framed by the

trial court:-

i. Whether the plaintiff is the owner in possession of land measuring 3 kanals 15 Marlas bearing Khasra No. 1188 situate at village Paloura tehsil Jammu? OPP. ii. In case issue no. 1 is proved in affirmative, whether the defendants are interfering into the possession of the plaintiff over the suit land? OPP.

iii. Whether the defendants are obliged to grant building permission to the plaintiff as per the construction plan submitted by the plaintiff to the defendants? OPP iv. Whether the notice in accordance with Section 48 of the Development Act has not been served upon the defendants by the plaintiff before filing of the suit? OPD v. Whether the suit is hit by the principles of resjudicata?

OPD.

vi. Relief .......... OP Parties

4. Suit is dismissed in terms of judgment and decree dated 29.12.2007

against which an appeal filed before the 1st appellate court is also dismissed

on 30.03.2009. The instant second appeal has been filed by the plaintiff as

such.

Heard learned counsel for the parties and perused the record.

5. Perusal of the record reveals that the plaintiff-appellant herein upon

leading his evidence in support of his case has appeared as his own witness

along with other witnesses particularly, Patwari Halqa Paloura-I, as also

PW-10, Record Keeper and proved the execution of the instruments under

which he acquired the land in question.

6. Perusal of the record further reveals that the defendants-respondents

herein in rebuttal produced Tehsildar, JDA Jammu as DW-1, witness in

support of their case, who deposed that the plaintiff on the basis of sale deed

with regard to Khasra No. 1188 wants to occupy the land of Khasra No.

1189, which land belongs to JDA for establishing Housing Colony Janipur

where plots have been carved out and that he has not brought any record on

the basis of which he claims that the land claimed by the plaintiff is covered

under Khasra No. 1188 is in fact the land covered under Khasra No. 1189.

7. Having regard to the aforesaid position, following substantial

questions of law emerge for consideration:-

a. Whether the trial court as also the appellate court discarded

and disregarded the evidence led by the plaintiff in respect

of the title of the land in question and dismissed the suit as

well as appeal on material perverse to the evidence?

b. Whether both the courts below committed grave error in

deciding the issues involved in the matter by not seeking to

get the land in question identified and demarcated in order to

effectually and conclusively determine the controversy.

8. Issue post-admission notice. Mr. Adarsh Sharma, Advocate waives

notice on behalf of respondents.

9. List for final hearing on 07.10.2021.

IA No. 13/2011

Meanwhile, parties shall maintain status quo on spot and the order

shall remain in force till final disposal of the case.

Application is, disposed of.

(JAVED IQBAL WANI) JUDGE

Jammu 13.08.2021 Angita