MUMA MIR Vs. GHULAM NABI SHEIKH

JUDGEMENT

(1.) THE dispute in this case relates to land measuring 7 kanals and 12 marlas comprised in Khasra NO. 753= eight marlas, Khasra NO: 763=2 kanals and 2 marlas, 809=3 kls. and 3 marlas, 812/min 1 kanal and 14 marlas and Khasra NO. 958=5 marlas situated in village Dadsar Tehsil Tral. The disputed land was the subject of proceedings under Section 145 Cr. P. C. in the court of Executive Magistrate (A. C. R.) Pulwama. The disputants were respondent No. 1 (hereinafter called the 'ist party') on one side, and the petitioners and respondents 2 to 4, (hereinafter called 'the second party') on the other. The case of the first party was that the disputed land was in the personal cultivation of his brother, Ghulam Hassan Sheikh and that without any right and title, the second party was making repeated assaults in order to oust him forcibly from the land. On the other hand, the case of the second party was that the land was in the personal cultivation of Mst. Shahmali since long and that Ghulam Hassan Sheikh had no right or title over it. By his order dated 19-11-1979, the learned Magistrate held that the disputed land was in the personal cultivation of Ghulam Hassan Sheikh and not Mst. Shahmali. On this finding, he declared Ghulam Hassan Sheikh to be entitled to the possession and forbade interference with the same. Aggrieved by the order, the second party went in revision to the District Magistrate Pulwama but could not succeed. The second party has now come up in further revision to this Court.

(2.) APPEARING for the petitioner, Mr. Qayoom urged the following points: That the preliminary order is defective and does not conform to the requirements of law and consequently the subsequent proceedings including the final order are without jurisdiction.

(3.) THAT the learned Magistrate has nowhere found that Ghulam Hassan Sheikh was in actual physical possession on the date of making of the preliminary order and as such the order is bad in law;