MOHAMMAD ASHRAF Vs. SAMAD WANI

JUDGEMENT

(1.) In revision petition, bearing CR no.25/2017,setting-aside of the order dtd. 5/5/2017, passed by the Munsiff Dangiwacha (for short "Trial Court"), whereby the Trial Court, while deciding the issues 1, 2 and 9 in favour of the plaintiffs/respondents, directed them to produce evidence, is sought for, precisely on the ground that the finding returned by the Trial Court on these issues is without application of mind and without considering the facts pleaded and law submitted and, thus, passing of order impugned has caused grave miscarriage of justice.

(2.) The order impugned has been passed by the Trial Court in a suit,filed by respondent " plaintiff, bearing File no.3 instituted on 9/4/2001, seekinggrant of a decree in the nature of mandatory injunction directing the petitioners" defendants, to demolish the illegal construction raised by them. The said relief has been claimed by the plaintiff/respondent in the suit on the ground that a compromise was arrived at between him and the father of the defendants in earlier suit in the Court of Sub-Judge, Sopore, and on the basis of said compromise, the suit was disposed of. In terms of compromise entered into between the respondent herein and the father of the petitioners, the suit land measuring 02 marlas under survey no.185 min is stated to have been given by him to the father of defendants against consideration of Rs.700.00 andthe defendants had reconstructed their house on the said piece of land with a condition that they would construct roof of the house only towards northern/southern side and would also construct bathroom and latrine towards the northern/southern side. In case defendant-Ghulam Rasool, father of the defendants, sells his house to anybody, he would have to demolish bathroom as well as latrine and was also bound to keep four feet fire gap towards the eastern side of his house. Ghulam RasoolPeerzada died in the year 1997.Defendants, who are his sons, in violation of the said compromise,are stated to have been constructing their house in such a manner that they laid roof of their house towards east/west side, as a result of which roof of the house of the defendants falls on the residential house of the plaintiff. So, in brief,the contention of plaintiff/respondent on the basis of which he has claimed relief for mandatory injunction against the defendants/ petitioners is that in violation of the compromise entered into between him and the father of the defendants, they are constructing their house and the roof is being constructed in violation of the compromise.

(3.) The defendants/petitioners, in response to the suit,raised the issue of maintainability of the suit on the ground that instead of filing the suit, the plaintiff/respondent ought to have sought execution of the decree; thus, first ground taken up by them is that suit is not maintainable as plaintiff/respondent ought to have filed execution petition. The defendants/petitioners have also in their written statement raised defence that plaintiff had no right over the suit land measuring 02 marlas.