Jammu & Kashmir High Court - Srinagar Bench
Jabar Dar vs Ali Dar on 20 February, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RSA No. 03/2024
Reserved on: 20.03.2024
Pronounced on: 20.02.2025
Jabar Dar
...Appellant/Petitioner(s)
Through: Mr. M.M.Iqbal, Advocate with
Mr. S.H.Thakur, Advocate.
Vs.
Ali Dar
...Respondent(s)
Through: Mr. T.A.Lone, Advocate.
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT / ORDER
1. Through this civil second appeal under section 100 of the
Jammu and Kashmir Code of Civil Procedure Svt. 1977,
the appellant-defendant is seeking to challenge the
concurrent judgments and decrees of the trial court of
learned Sub Judge, Kupwara in the civil suit and of the
appellate court of Principal District Dudge, Kupwara in
the civil first appeal both going against the appellant.
2. The respondent-Ali Dar, as plaintiff, initiated a civil suit
on file No. 176/Civil of 2002 against the appellant and
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one Muhammad Dar. In the suit, a decree for declaration
against an agreement dated 20.08.1978 and its
consequent cancellation along-with possession of suit
property, was claimed.
3. The trial court of learned Sub Judge, Kupwara, came to
hold that the impugned agreement was having no effect
so far as right of the respondent/plaintiff- Ali Dar and two
defendants to receive inheritance of Razak Dar and
therefore, decreed the suit by holding the
respondent/plaintiff -Ali Dar and the defendant No.2-
Mohammed Dar entitled to their share of the suit land
measuring 9.11 kanals and likewise entitled to receive
share of their mother's inheritance under 'Shariyat'.
However, the suit was not decreed in so far the relief for
possession is concerned.
4. The decree and judgment dated 13.12.2012 by the trial
court closed the lis in the civil suit against which the
appellant herein, as defendant No.1, came to file the civil
first appeal before the court of learned District Judge,
Kupwara on file No.42/M of 2012 which came to dismiss
the said civil first appeal and upheld the decree and
judgment of the trial court of learned Sub Judge,
Kupwara against which the appellant is now seeking to
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maintain the present civil second appeal on the strength
of questions of law as proposed in the memo of appeal.
5. This civil second appeal is accompanied with certified
copies of the judgments of courts below. A perusal of the
judgments of the two courts below leaves this Court in a
bit of fix given the nature of the decree passed by the
trial court and confirmed by the appellate court of the
learned Principal District Judge, Kupwara. In order to sort
out the said fix, perusal of the suit file as well as the civil
first appeal is rendered indispensable to appreciate as to
whether the civil second appeal generates the
substantial questions of law as proposed in the memo of
appeal or some other substantial questions of law get
generated from the admitted position of facts in the
matter and, therefore, this Court is dispensing with
framing of substantial questions of law till the record of
suit file No.176/Civil of 2002 and civil first appeal on file
No. 42-M of 2012 are received from the court of Sub
Judge, Kupwara and the Principal District Judge,
Kupwara respectively.
6. Registrar Judicial, Srinagar to requisition the record of
said two files.
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7. In the meantime, in the interest of justice, this court
directs stay of operation of the judgments and decrees of
the courts below. This direction of stay to operate only till
receipt of the record of the two files whereupon in the
event of substantial questions of law being found
involved, this Court would be well within its discretion to
pass appropriate interim orders.
8. List on 26.03.2025.
( RAHUL BHARTI )
JUDGE
Srinagar
20.02.2025
Muzammil. Q (Secy.)
