Jammu & Kashmir High Court - Srinagar Bench
Mohammad Yousuf Beigh And Another vs Muzaffar Ahmad Bhat And Others on 21 February, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
Sr. No. 04
Regular List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
RPC No. 7/2017
Mohammad Yousuf Beigh and Another ...Petitioner(s)/appellant(s)
Through: Mr. G. M. Shah, Advocate
Vs.
Muzaffar Ahmad Bhat and others ...Respondent(s)
Through: None
CORAM:
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
21.02.2025
1. A civil suit came to be commenced by the respondent No. 1 Muzaffar
Ahmad Bhat, son of one Abdul Ahad Bhat. The suit was commenced on
14.02.2002 on File No. 302/Diwani before the court of Sub Judge,
Anantnag.
2. In the civil suit, the sole defendant was Khazer Bhat S/o Mohammad Bhat
R/o Chirhama, Tehsil Kulgam as it was then.
3. In the suit, a decree for declaration was claimed to the effect that the
plaintiff Muzaffar Ahmad Bhat, as being adopted son of defendant Khazer
Bhat, was the owner of the suit property on the basis of an oral gift and to
that extent the defendant Khazer Bhat had no right title or interest to deal
with the same.
4. The suit, when it was not taken upon its next date, from nowhere came to
be purportedly settled by virtue of an alleged compromise deed between the
plaintiff and sole defendant paving the way for passing of a compromise
decree dated 05.03.2002.
5. The purported compromise was presented on 18.02.2002 and had a thumb
impression attributed to the sole defendant, meaning thereby the defendant
was an illiterate person. However the sole defendant is said to have been
represented and identified by an Advocate Nazir Ahmad Tak.
6. The trial court of Sub Judge, Anantnag came to decree the suit on
05.03.2002.
7. Assuming for the sake of arguments that the disposal of the civil suit in the
form of the compromise decree was proceeding on a validly entered
compromise by the defendant with the plaintiff, still the said decree by
itself was not effective as it was supposed to have been registered under the
Registration Act, Smvt. 1977 given the fact purporting to scale right, title or
interest in suit property.
8. Finding in suit property that the plaintiff Muzaffar Ahmad Bhat on the
basis of the decree has set himself to be the owner of the property of
Khazer Bhat, Mohammad Yousuf Beigh and Gulshana Akhter, being
children of Mst. Shammali stepped forward to maintain a civil 1st appeal
against said decree dated 05.03.2002, purportedly based upon the
compromise between the sole plaintiff and defendant.
9. The said civil 1st appeal, although time barred having been filed on
16.05.2009 on File No. 06/Appeal, came to be disposed of on 24.06.2013
by the Principal District Judge, Anantnag by setting aside the decree and
remanding the suit.
10. One prominent fact which came to be adverted to in the appeal was that the
sole defendant Khazer Bhat had expired on 28.02.2002 that is before
decreeing of suit.
11. The plaintiff Muzaffar Ahmad Bhat, being aggrieved of the outcome of the
civil 1st appeal as preferred by the two appellants whom he reckoned to be
nobody in the eyes of law to feel agitated about the outcome of the civil suit
so filed by him against Khazer Bhat came forward with a civil
miscellaneous appeal on 130/2013 against the appellate court of Principal
District Judge, Anantnag's judgment and decree dated 24.06.2013 of
remanding the suit to the trial court below.
12. In his civil miscellaneous appeal, the appellant Muzaffar Ahmad Bhat came
to name not only Mohammad Yousuf Beigh and Gulshana Akhter, the
appellants of civil 1st appeal, but also fourteen (14) other persons as
respondents. The addition of these fourteen (14) persons as respondents is
for the reason is best known to the said appellant Muzaffar Ahmad Bhat.
13. This court, in terms of a judgment dated 21.08.2015, came to allow civil
miscellaneous appeal by setting aside the judgment dated 24.06.2013 of the
appellate court of Principal District Judge, Anantnag and further directed
the trial court decree dated 05.03.2002 to hold the field.
14. Aggrieved of the outcome of the civil miscellaneous appeal 130/2013, one
of two original appellants of the civil 1st appeal, Mr. Mohammad Yousuf
Beigh co-joined by Ghulam Hassan Bhat who is said to be brother of the
deceased Khazer Bhat, have come forward with a review petition which has
been pending adjudication before this court w.e.f April, 2016.
15. Ghulam Hassan Bhat as petitioner No. 2 in the review petition has taken
liberty of being a co-petitioner with Mohammad Yousuf Bhat on account of
the fact that petitioner No. 2 Ghulam Hassan Bhat was figuring one of the
respondents in the civil miscellaneous appeal filed by the plaintiff Muzaffar
Ahmad Bhat.
16. Review petition is sought to be maintained on the ground that there is an
error apparent on the face of the record not only in the context of the
judgment passed by this court but on the record of the trial court itself and
that is the element of fraud which had set in on account of non-sharing of
the fact of demise of sole defendant Khazer Bhat having taken place on
28.02.2002 and supposedly being well-known to sole plaintiff Muzaffar
Ahmad Bhat who claimed himself to be adopted son of Khazer Bhat and
still the fact of death was kept withheld from being disclosed to the trial
court for the purpose of enabling the trial court to deal with the situation
rather than proceeding ahead and decreeing the suit.
17. It is this salient aspect which was all alongwith present and came to be
taken cognizance by the appellate court of Principal District Judge,
Anantnag but came to suffer an overlook by this court while disposing of
the civil miscellaneous appeal and thus, there is an error apparent on the
record of this case to warrant indulgence for review so as to revive civil
miscellaneous appeal for adjudication on merits by dealing with the death
of a sole defendant being not shared with the trial court before passing of a
purported compromise based decree in the matter relatable to a estate of
dead person. If the scenario would amount to nullity in the eyes of law,
then surely the entire proceedings right from the inception post death of
Khazer Bhat was all along nullity and remained so even when this court
was disposing of civil miscellaneous appeal No. 130/2013 and at present
also when review petition is being dealt with, as such, review is allowed.
The judgment dated 21.08.2015 passed by this court is set aside and appeal
CIMA No. 130/2013 is restored to be reheard.
18. Let the appeal bearing CIMA No. 130/2013 be restored to its original
number for the sake of hearing. List CIMA No. 130/2013 on 12.03.2025.
when this court would put the appellants to notice.
19. Disposed of.
(RAHUL BHARTI)
JUDGE
SRINAGAR
21.02.2025
ARIF
