HALEEMA BANO Vs. HEEMALI

JUDGEMENT

(1.) This Civil Second Appeal has been preferred by the appellants against the judgment and decree dtd. 31/12/2021 passed by the court of learned Principal District Judge, Kulgam without a copy of decree, as the same has not been furnished to the appellants by the appellate court. It is averred, that the impugned judgement dtd. 31/12/2021 passed by the court of learned Principal District Judge, Kulgam, has set aside the judgement and decree of the court of learned Sub-Judge Kulgam, dtd. 31/8/2020 which had decided and decreed a counter claim filed by the appellants/defendants in their favour holding the appellants/defendants entitled to withhold the possession of 15 marlas, 03 sarsais of land under Survey No. 201 along with appended Shamilat with further decree of permanent prohibitory injunction whereby respondents/plaintiffs in the trial court were restrained from causing any sort of interference in the aforesaid land of appellants/defendants. It is averred, that the substantial questions of law are involved in the appeal as the appellate court while reversing the judgement of the trial court has not given its definite and independent findings on the issues framed in the case and has proceeded to pass impugned judgment and decree in violation of the provisions of Order 41 Rule 31 CPC, the judgement of the appellate court is erroneous without any just cause; appellants have completed the construction and have rented out the shops on the suit land to Mohd Altaf Sheikh, Tariq Ahmad Sheikh and Irshad Ahmad Ganie in terms of rent deed executed on 25/7/2021 and 2/3/2021 and it was not open to the appellate court to pass impugned judgement and decree without impleading them as respondents to the appeal therefore impugned judgement and decree is liable to be set aside; appellants through their predecessors-in-interest are in possession of suit land for the last many years in terms of the document executed in their favour which stands notarized.

(2.) Respondents who were on caveat have appeared through their counsel who has submitted written arguments as well as orally argued that the Civil Second Appeal is not maintainable, as the substantial questions of law framed by the appellants herein for the admission of Second Appeal are not substantial questions of law in view of barred created under Sec. 100 read with Order 42 CPC. He has supported his arguments with the case laws reported in (i) AIR 1967 (JK) 17 (ii) 1978 Legal Eagle (JK) 63 (iii) 1993 Legal Eagle (JK) 26 (iv) AIR 1972 (JK) 114 (v) AIR 1973 (JK) 11 (vi) SLJ 2004 vol-11 page 736 and (vii) SLJ 2005 (vol-11) page 283 para 26.

(3.) Heard and considered.