NAZIR AHMAD DAR Vs. MST. NABZA

JUDGEMENT

(1.) The short controversy involved in the instant Civil Revision revolves around right of stranger to a suit to file the appeal against the judgment and decree passed in the suit. The Civil Revision has been filed against the following back drop;

(2.) The Petitioner herein on 24.9.2004, filed a Civil Suit against the proforma Respondents in the Court of Munsiff Anantnag. The suit related to a plot of land measuring 2 Kanal 10 Maria's comprising of Survey NO's. 402 and 605 situated at village Muniwar Tehsil Anantnag. The Petitioner claimed to be owner in possession of the suit land and sought a declaratory decree to the said effect. The Petitioner also prayed for a permanent injunction decree perpetually restraining the proforma Defendants from interfering with the Petitioner's possession over the suit land. The proforma Respondents (Defendants in the suit) appeared before the Trial Court and filed written statement admitting the Petitioners claim over the suit land, Learned Munsiff Anantnag decreed the suit on 26.11.2002. The proforma Respondent thereafter seemingly disowned the written statement admitting the Petitioners suit and filed a Civil suit for cancellation of the decree dated 26.11.2002 in the suit titled Nazir Ahamad Dar v. Mst. Nabza and Ors. File No. 314 of Munsiff Anantnag. The suit stands registered as No. 203/2004. In the meantime the contesting Respondent filed an appeal against the aforesaid judgment and decree dated 26.11.2002. The contesting Respondent conscious that she was not a party to the suit and thus not competent to file an appeal against the judgment and decree without permission from first Appellate Court, made an application for grant of permission under Section 96 Code of Civil Procedure to file the appeal. Learned Principal District Judge Anantnag vide order dated 25.4.2009 allowed the application and granted permission to the contesting Respondent to file the appeal.

(3.) The case set up by the contesting Respondent before the Appellate Court was that the suit land was transferred to her by her husband the proforma Respondent-No.2 (Defendant No. 1 in the suit) way back in the year 1992, in lieu of dower and that a document evidencing the transaction had been duly executed and notarized on 7.4.1992. The applicant's case was that the applicant in wake of the above transaction had become absolute owner of the property in question and the proforma Respondents (Defendants in the suit) had no right or authority to enter into a compromise in respect of the suit land with the Petitioner and admit the Petitioner to be owner of the suit land. It was averred that the applicant was prejudicially effected by the judgment and decree sought to be impugned in the appeal and thus had a right to file appeal against the judgment and decree. Learned Principal District judge Anantnag relying on the law laid down in , 1989 SLJ 488 held that the applicant deserved to be permitted to file the appeal and opined that questions of fact and law sought to be raised by the Petitioner were to be dealt with while hearing and disposing of the main appeal.