Hameed Ullah Badroo vs Ali Mohammad Basdroo
2022 Latest Caselaw 1385 j&K/2

                                    1

                                                            Sr. No. 12
                                                            Regular list

  IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                           CSA no. 13/2014
                       IA nos. 1/2015 (110/2015)
                          CM no. 7060/2021



Hameed Ullah Badroo                                Appellant/Petitioner(s)



Through: Mr. W. M. Shah, Adv.

                                   Vs.
Ali Mohammad Basdroo                                        ...Respondent(s)



Through: Mr. Z. A. Qureshi, Sr. Advocate with
         Ms. Razia Amin, Advocate
CORAM:

 HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE



                               ORDER

29.08.2022

1. With respect to property of one Ama Joo Badroo, a

succession dispute came to take seat between his two sons

which resulted in filing of a civil suit by one of his sons

who is the appellant herein against his brother, the

respondent no. 1 herein, and also the widow and daughter

of said Ama Joo Badroo. The appellant, as being plaintiff,

came to file civil suit for declaration with consequential

relief as prayed for in the suit. The respondent no. 1, as

being the contesting defendant, came to counter the suit of

the appellant which resulted in framing of five number of

issues of facts and law before the trial court of learned

Munsiff, Anantnag. The issues which came to be framed

are as under:-

"1. Whether the property given as other property of the plaint is owned and possessed only by plaintiff and defendant no. 1 equally? OPP

2. Whether the documents executed on 31.12.1988 is forged, framed under conspiracy and against the facts and is not binding upon the plaintiff and is liable to be cancelled? OPP

3. Whether the defendant is interfering into the possession and ownership rights of plaintiff? OPP

4. If the issue no. 2 is proved in affirmation then whether the parties are bound by family settlement and are possessing and utilizing their shares? OPD

5. Whether the suit is barred by limitation? OPD "

2. The trial court, upon appreciation and appraisal of the

evidence led and pleadings of the case from both sides,

came to dismiss the suit of the appellant by returning

findings on all five issues against the appellant. The trial

court came to uphold a document dated 31.12.1988 made

and executed amongst the family members of Ama Joo

Badroo and which includes the appellant and respondent

no. 1 being one of the subscribers of the said document.

The said document settled the matter of devolution of the

property of Ama Joo Badroo and, accordingly, came to be

acted upon by all the parties thereto. The trial court came

to hold that the said document dated 31.12.1988 is

binding upon the parties thereto that includes the

appellant and the respondent no. 1 and, as such, even

held the suit of the appellant barred by limitation as well

in so far as challenge to the said document dated

31.12.1988 was concerned.

3. The appellant preferred a civil first appeal before the

Court of Principal District Judge, Anantnag on 11.12.2013

in which the lower appellate court of Principal District

Judge, Anantnag came to pass a judgment dated

24.07.2014 dismissing the appeal of the appellant by

concurrent findings viz-a-viz the issues of law and fact as

framed in the suit. The lower appellate court confirmed the

findings of the trial court as returned on all the five issues.

4. In the light of the aforesaid two judgments of

concurrence passed by the trial court as well as the lower

first appellate court, there is hardly any scope left for the

appellant as being the plaintiff to carry forward his dispute

in the tone and tenor in which the same was pleaded and

argued before the courts below.

5. Learned counsel for the appellant tried to find fault

with the judgments of the courts below on the aspect of the

nature of the agreement, the validity of which has been

upheld by both the courts below. It is not a nomenclature

of a document which is of any essence but the contents

and the context of the document which generates and

sustains its legality, validity and effect. In the present case,

that document is a document of family members with

respect to the mode of succession/inheritance quo estate

of the predecessor in interest. The genuineness of the said

document has been upheld by both the courts below in a

very clear and categorical terms and, accordingly, the state

of affairs between the appellant and the respondent quo

the estate of late Ama Joo Badroo has taken due effect.

The clock cannot be put back to disturb the well

entrenched rights and interests of the parties quo the said

property of late Ama Joo Badroo.

6. Thus, this court is not convinced that any question of

law much less a substantial question of law is involved in

the present case and, as such, the present civil second

appeal is dismissed being misconceived.

(RAHUL BHARTI) JUDGE SRINAGAR 29.08.2022 Yasmeen Whether the judgment is speaking : Yes/No Whether the judgment is reportable : Yes/No