Jammu & Kashmir High Court
Mohammad Tufail vs Muzaffar Hussain on 7 May, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
Sr. No. 9
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No.:- RSA No. 6/2021
CM Nos. 3711/2021, 3165/2021 & 3166/2021.
1. Mohammad Tufail, aged 65 years
S/o Mohammad Latief,
R/o Ujhan Tehsil Darhal,
District Rajouri.
2. Zahid Hussain, aged 63 years
S/o Mohammad Latief,
R/o Ujhan Tehsil Darhal,
District Rajouri.
3. Said Akhter, aged 61 years
S/o Mohammad Latief,
R/o Ujhan Tehsil Darhal,
District Rajouri.
4. Mohammad Younus, aged 55 years
S/o Mohammad Latief,
R/o Ujhan Tehsil Darhal,
District Rajouri.
.....Appellant(s)
Through: Mrs. S. Kour, Sr. Advocate with
Ms. Manpreet Kour, Advocate.
Vs
1. Muzaffar Hussain
S/o Ghulam Hussain
R/o Ujhan Tehsil Darhal
District Rajouri.
2. Mohammad Naseeb
S/o Ghulam Hussain
R/o Ujhan Tehsil Darhal
District Rajouri.
3. Mohd. Amin
S/o Ghulam Hussain
R/o Ujhan Tehsil Darhal
District Rajouri.
2 RSA No. 6/2021
4. Nazir Hussain
S/o Atta Ullah
R/o Ujhan Tehsil Darhal
District Rajouri.
5. Badar Hussain
S/o Atta Ullah
R/o Ujhan Tehsil Darhal
District Rajouri.
6. Shahbaz
S/o Noor Bakash
R/o Ujhan Tehsil Darhal
District Rajouri.
7. Khadam Hussain
S/o Ghulam Hussain
R/o Ujhan Tehsil Darhal
District Rajouri.
..... Respondent(s)
Through: Mr Raghav Sawhney, Advocate vice
Mr. Sachin Gupta, Advocate.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
07.05.2025
1. This is a civil 2nd appeal under section 100 of the Jammu
and Kashmir Code of Civil Procedure, Svt. 1977 which has
come to be preferred by the appellants, as being the plaintiffs,
against the judgment and decree dated 27.03.2021 passed by
the court of learned Principal District Judge, Rajouri in a civil
1st appeal on file No. 05/Appeal of 2019 preferred by the seven
respondents herein, who figured as defendants in the civil suit,
before the court of learned Munsiff (Additional Special Mobile
Magistrate), Thannamandi.
2. The appellants commenced the civil suit on file No. 31/Civil
instituted on 01.08.2012 thereby seeking a decree for
permanent prohibitory injunction for restraining the
defendants No. 1 to 7 (respondents No. 1 to 7 herein) from
causing any interference in the possession of the
appellants/plaintiffs with respect to suit land measuring 13.9
kanals comprised in khasra No. 788 of village Ujhan.
3. The respondents, as defendants, appeared in the civil suit
along with the written statement thereby denying the claim of
possession of the appellants/plaintiffs qua the suit land which
resulted in framing of following issues for adjudication of the
civil suit:
(i) Whether land measuring 13 kanal & 9 marlas falling
under survey No. 788 situated at village Ujhan is in
possession of the plaintiffs in which they have sown the
crops? (OPP)
(ii) If issue No. 1 is proved in affirmative then whether
defendants are causing interference in the suit land
without any right or reason? (OPP)
(iii) Whether suit land is in possession of the defendants
from time immaterial? (OPD)
(iv) Relief. O.P Parties.
4. On behalf of the appellants, two witnesses came to be
examined, namely, Mohammad Sadiq and Mohammad Asif
meaning thereby the appellants, as plaintiffs, did not choose to
examine themselves as their own witnesses in support of their
own case. The two witnesses produced by them were non-
official witnesses to come and depose with respect to the claim
of the appellants/plaintiffs qua the suit property being not
related to the revenue record.
5. Likewise, the seven defendants came forward with two
witnesses from their own end without bothering to examine
themselves as their own witnesses. The witnesses produced
by the respondents/defendants from their own end were also
non-officials.
6. Thus, no document worth name came to be exhibited as
evidence on the suit file for the trial court to refer itself to a
document properly introduced and exhibited as an evidence
for the purpose of drawing an inference with respect to the
revenue record basis for claim and denial of possession of the
suit property between the appellants/plaintiffs on one hand
and the respondents/defendants on the other hand.
7. Still the trial court of learned Munsiff (Additional Special
Mobile Magistrate), Thannamandi came forward decreeing the
suit of the appellants/plaintiffs against the
respondents/defendants vide judgment and decree dated
20.05.2016 thereby granting decree of permanent prohibitory
injunction restraining the respondents/defendants from
causing interference in the suit land measuring 13.9 kanals
comprising khasra No. 788 of village Ujhan.
8. Against the aforesaid judgment and decree dated 20.05.2016,
the respondents/defendants preferred a civil 1st appeal on file
No. 05/Appeal of 2019 before the learned Principal District
Judge, Rajouri which appeal came to be allowed by reversing
the judgment of the trial court and dismissing the suit of the
appellants/plaintiffs.
9. The appellate court came up with a singular purported finding
that it stands proved that the appellants/plaintiffs were not in
possession of the suit property and, therefore, it could not
have been said that the respondents/defendants were causing
interference in the suit property.
10. This is how the present civil 2nd appeal came to get generated
with the appellants being aggrieved plaintiffs finding their civil
suit dismissed by the appellate court as against the decree
granted by the trial court.
11. The institution of the present civil 2nd appeal came to take
place on 05.04.2021.
12. Without formulation of substantial questions of law, the
appeal came to be admitted in terms of the order dated
28.08.2024 which is a wrong admission to say the least as it is
only by formulating the substantial questions of law that a
civil 2nd appeal is eligible to be admitted for final hearing and
disposal on merits.
13. This Court is, therefore, proceeding to frame substantial
question of law in the present civil 2nd appeal to the effect as
to whether without any evidence on record of the civil
suit, could the trial court as well as the 1st appellate court
come up with any finding of fact in relation to the claim of
possession qua the suit property inter se the plaintiffs and
the defendants?.
14. In the light of the aforesaid substantial question of law, when
this Court examines the trial court judgment as well as that of
the 1st appellate court, this court is left concerned to observe
that both the trial court and the 1st appellate court acted as if
novice in understanding of law.
15. The plaintiffs did not examine themselves as their own
witnesses in support of their claim for possession qua the suit
property. Likewise, the defendants also did not examine
themselves as their own witnesses in support of their claim
that they are in possession of the suit property as against the
plaintiffs' claim.
16. From both the ends i.e., of the plaintiffs' end as well as of the
defendants' end, no revenue side witnesses came to be
examined to prove the revenue record position and still the
trial court as well as the 1st appellate court came up with
opposite findings of fact, one in favour of the plaintiffs in the
suit and one in favour of the defendants in the civil 1st appeal.
17. Finding of fact is something which is not to be conjectured by
civil court or for that matter civil 1st appellate court. Evidence
Act is meant for the adjudication of civil suits and also for
criminal trials alike.
18. In the present case, it seems that the trial court as well as the
civil 1st appellate court acted as if sitting as panchayats and
disposing of the matters at their respective ends as per their
respective discretion which is antithesis to the law of
adjudication of a civil suit which is supposed to take place in
accordance with the Code of Civil Procedure and the Evidence
Act.
19. In the light of the aforesaid serious lacuna attending the
adjudication of both the courts below, the civil 2nd appeal is
allowed.
20. The judgment and decree dated 27.03.2021 passed by the 1st
appellate court of learned Principal District Judge, Rajouri is
set aside and so is the judgment and decree dated 20.05.2016
passed by the trial court of Munsiff (Additional Special Mobile
Magistrate), Thannamandi is set aside.
21. The matter is remanded back to the trial court of learned
Munsiff (Additional Special Mobile Magistrate), Thannamandi
to be taken up for adjudication from the stage of framing of
issues onwards by affording the parties to the suit an
opportunity of filing their list of witnesses along with deposit of
diet expenses and then conducting the trial and carry out the
adjudication.
22. Parties are directed to appear before the court of learned
Munsiff (Additional Special Mobile Magistrate), Thannamandi
on 05.06.2025.
(RAHUL BHARTI)
JUDGE
JAMMU
07.05.2025
Naresh/Secy.
