Khazir Mohammad Lone vs Respondent(S)
2024 Latest Caselaw 1569 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Khazir Mohammad Lone vs Respondent(S) on 16 October, 2024

Author: Rahul Bharti

Bench: Rahul Bharti

                                                                Serial No. 79
                                                           Supplementary Causelist
         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                               CM No. 5750/2024
                              In RSA No. 17/2024


     Khazir Mohammad Lone                                       ...Petitioner(s)

     Through: Ms. Mehreen Altaf, Advocate

                                       Vs.
                                                              ...Respondent(s)
     Mohammad Ashraf Lone

     Through: Mr. R.A. Khan, Advocate


     CORAM:
               HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE.
                                    ORDER

16.10.2024

1. The respondent/plaintiff Mohammad Ashraf Lone filed a civil

suit for the eviction of the appellant/defendant Khazir Mohammad Lone from

a suit shop, situated at the ground floor of the double story building located in

the Main Market at Langate. This civil suit was commenced on file No.

82/2013, and instituted on 13.12.2013, before the Court of Sub Judge,

Handwara.

2. The following issues came to be framed in the suit:-

(i) Whether Plaintiff is the owner of the shop in

question and the land underneath and

requires the said shop for his personal use

and his need for the shop weights more than

the defendant? OPP

(ii) Whether the defendant has the status of

unauthorized occupant of the demised shop

as he had been holding the occupation of

the said shop on the basis of some

agreement or license allegedly made with

Mohamamd Aslam Lone who no longer has

any interest of claim with the suit property?

OPP

(iii) Whether suit shop is sole source of income

of the defendant and has raised loan on it?

OPD

(iv) Whether defendant is in possession of suit

shop since pretty lone time and has a lot of

money outstanding on account of the said

shop and the suit shop is sole source of

income for his family? OPD

(v) Whether plaintiff has no cause of action

against the defendant and the suit in its

present form is not maintainable as such is

liable to be dismissed? OPD

(vi) Whether this Court has no jurisdiction to try

the suit? OPD

(vii) Relief?

3. The Court of Sub Judge, Handawara, came to hold the

respondent/plaintiff to be the owner of the suit shop and in need of the same

for his personal use more than the appellant/defendant, who was held not to

be the tenant of the respondent/plaintiff, but was in use and occupation of the

suit shop as a licensee of the respondent/plaintiff. The appellant/defendant

was held to have not proved the issue that business at the suit shop was his

only source of the income. Thus on the findings qua the issues being returned

in favour of the respondent/plaintiff and against the appellant/defendant, the

suit came to be decreed directing the vacation of the suit shop by the

appellant/defendant. The Court of Sub Judge, Handwara, came to decree the

suit vide judgment and decree dated 23.08.2022, against which the

appellant/defendant came to prefer a civil first appeal under Section 96 read

with Order 41 of the Jammu and Kashmir Code of Civil Procedure Svt. 1977

before the Appellate Court of the Additional District Judge, Handwara on file

No. 08/Appeal instituted on 29.04.2022.

4. The Appellate Court of Additional District Judge, Handwara, by

an elaborate judgment bearing due identification of the issues, appreciation of

evidence and deliberation upon submissions made by the respective sides, to

return concurrent findings in favour of the respondent/plaintiff and against the

appellant/defendant by reference to para 19 of the judgment dated 10.07.2024,

thereby dismissing the civil first appeal of the appellant/defendant.

5. It is against the said two concurrent judgments and decrees of the

trial Court as well as First Appellate Court that the appellant/defendant has

come forward with a civil second appeal proposing the following substantial

(i) Whether it was mandatory for the Trial Court to decide the question of its jurisdiction in terms of Proviso to Sub-

Section (2) of Section 1 of the J&K Houses and Shops Rent Control Act?

(ii) Whether it was mandatory for the Trial Court to determine the annual income of the tenant/defendant in terms of

clause (iii) to sub-section (3) of Section (1) of the J&K Houses and Shops Rent Control Act, in order to determine the applicability of the Act?

(iii) Whether the Trial Court and the Appellate have not appreciated the evidence of the Appellant?

(iv) Whether the question of bonafide requirement of shop has been correctly dealt by the Trial Court as well as the Appellate Court?

6. The substantial questions of law as proposed in the civil second

appeal, in fact do not arise as the same do not have factual and legal basis.

The appellant/defendant has been concurrently held to be a licensee qua the

suit shop and, as such, cannot be heard to agitate a question of law related to

Jammu and Kashmir Houses and Shops Rent Control Act. Accordingly, this

Court holds the civil second appeal involving no substantial questions of law

whatsoever by any stretch of reference.

7. At this stage the counsel for the appellant/defendant has asked

for time for enabling the appellant/defendant to vacate the suit shop by

making an alternative arrangement of shifting of merchandize/stock from the

suit shop to another place to which the counsel for the respondent/plaintiff has

registered his no objection but praying for a shorter time window as against

the one being prayed for by the counsel for the appellant/defendant.

8. Keeping in view the aforesaid submissions, while dismissing this

civil second appeal, this Court allows the appellant/defendant four months'

time expiring on 15th February, 2025 for vacation of the suit shop and handing

over its vacant physical possession to the respondent/plaintiff against a

written receipt. Omission/ default/failure on the part of the

appellant/defendant to vacate the suit shop within the aforesaid time period

shall entitle the respondent/plaintiff to place his locks on the suit shop and

take the physical possession thereof with entitlement to remove the

goods/stock whatsoever, if any, of the appellant/defendant lying inside by

preparing an inventory for the appellant/defendant to take away the

inventorised goods/stock, failing which the respondent/plaintiff shall not be

responsible for loss or waste of the said goods and stock.

9. Accordingly, this civil second appeal is dismissed.

(RAHUL BHARTI) JUDGE SRINAGAR:

16.10.2024 "MIR ARIF"

(i) Whether the order is reportable? Yes/No