Ghulam Mohammad & Others vs Mohammad Musa & Ors
2021 Latest Caselaw 917 j&K/2

                       IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                          AT SRINAGAR

                                                    CR NO. 12/2012
                                                    IA No. 01/2012
                  Ghulam Mohammad & others.
                                                                                .........Appellant(s)

                                                Through:      Mr. M. M. Iqbal, Advocate
                               V/s

                  Mohammad Musa & Ors.
                                                                               .......Respondent(s)

                                                Through:      Mr. Shuja-ul-Haq, Advocate.

                  CORAM:             HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
                                                    JUDGEMENT

(Open Court)

1. The present petition styled as a „Civil Revision‟ has been

preferred against the order dated 28th October, 2011,

(Impugned herein), passed by the learned Principal District

Judge, Kargil ("court below" for short) by virtue of which, the

court below has issued certain directions in the application

under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure,

which are under challenge in the present proceedings. Since

the order of granting or refusing the relief in terms of Order 39

Rule 1 & 2 is appealable under Order XLIII CPC, therefore, on

the prayer of learned counsel for the petitioner, the revision

petition is treated as a Civil Miscellaneous Appeal and is taken

up for disposal accordingly.

2. Briefly stated, the facts are as under:-

3. A civil suit titled Mohammad Musa and others v. Ghulam

Mohammad and others, came to be preferred before the court

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below for declaration to the effect that plaintiff had a right of

irrigation from Gongyour Khul, to the extent of his share as

reflected in the revenue records. An injunction was also sought

restraining the defendants from interfering with the right of

irrigation to the plaintiff from Gongyour Khul situated in Baroo

Kargil.

4. By virtue of judgment and decree dated 7th August, 1995, the

suit was decreed and the defendants were restrained from

interfering with the right of irrigation of the plaintiff for one day

and one night or two days (excluding night) over the Gongyour

Khul, in respect of his land situated in Baroo Kargil.

5. An appeal was preferred by the defendants against the said

judgment and decree which is stated to have been dismissed

on 20th March, 2003. An execution petition was filed by the

decree holder thereafter, which is stated to be pending for

execution.

While the execution proceedings were pending, a civil suit

titled Haji Mohammad Ali & Ors. v. Mohammad Musa &

Ors came to be filed in the court of Pr. District Judge,

Kargil, praying that the judgment and decree dated 7th

August, 1995, be declared null and void vis-a-vis right of

the plaintiff with a further declaration that the said decree

be held to be ineffective and infructuous against the

plaintiffs in view of the fact that they were not parties in

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the earlier suit and that decree was declared collusive in

nature.

6. Accompanying the suit aforementioned, an application under

O.39 R 1&2 was filed wherein certain directions were sought.

7. The court below by virtue of the order impugned, contrary to

the decree earlier passed in favour of the decree holder, as an

interim measure, directed that the decree holder who is

defendant No.1 in the civil suit be permitted to use water from

the Khul for a duration of 5 hours after every six days.

8. Counsel for the appellant states that the aforementioned order

is perverse and illegal inasmuch as one of the objections that

had been raised by the judgment debtor in the execution

proceedings was with regard to the inexecutability of the

decree in question which ought to have been considered by

the court below while passing the order impugned. Counsel for

the appellant took pains to refer to the report of Tehsildar

Kargil, dated 18th October, 2004, to suggest that the land of the

decree holder was situated at some distance from the Khul in

question and, therefore, a suggestion was made that it is not

possible to execute the decree. Counsel for the appellant

further states that there was no occasion for the court below to

pass the order impugned, ignoring the objections raised by the

judgment debtors.

9. Counsel for the respondents on the other hand questions the

maintainability of the present appeal on the ground that the

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civil suit out of which present appeal arises itself was

dismissed for non-prosecution on 20th March, 2003. However,

from the record, it appears that an application had been filed

for restoration of the suit and the suit has since been restored

to its original number, therefore, the objection raised by the

counsel for the respondent to that extent is without any basis.

10. Be that as it may, it can be seen that by virtue of the order

impugned in the present appeal, the court below has in fact

tried to dilute the judgment and decree dated 7th August, 1995,

by ordering that the defendant No. 1 (decree holder in the

earlier suit) could use the water from the Khul in question for 5

hours after every six days which is clearly against the mandate

of the decree dated 7th August, 1995, in which the court had

specifically observed that the decree holder (defendant No. 1

in the subsequent suit) was entitled to use water from the Khul

in question for one day and one night or two days (excluding

night). Although the judgment dated 7th August, 1995, is silent

whether the plaintiff is permitted to use the water from the Khul

in question, on a weekly, monthly or yearly basis that may be

an issue which is left open for the Executing court to decide.

7th

11. In my opinion the judgment and decree dated August,

1995, could not have been diluted by virtue of the order

impugned in the present appeal without recording a prima-

facie opinion in the order impugned, at least, with regard

decree having been obtained by collusion or that the said

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decree was a result of fraud, played by the parties to the suit.

In the absence of any specific finding having been recorded by

the court below on this aspect cannot be sustained legally and

is accordingly, set-aside.

12. The learned Pr. District Judge, Kargil, is directed to reconsider

the issue and pass appropriate orders accordingly.

13. Registry to forward a copy of this order to the court below

along with the record. Disposed of accordingly.

(DHIRAJ SINGH THAKUR) JUDGE Srinagar 17th, August, 2021.

"Ab. Rashid"

Whether the order is reportable Yes/No.

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