QAZI GH NABI Vs. QAZI JALAL-UD-DIN

JUDGEMENT

(1.) THIS appeal is directed against the order dated 29.9.2003 passed by Ist. Addl. District Judge, Srinagar in File No. 104 Numbri of 1981 titled Qazi Abdul Hamid v. Qazi Gh. Nabi and others by means of which the learned Addl. District Judge, Srinagar (the trial court) has refused to set aside or interfere with the award passed by an Arbitrator appointed by the court in the case. The facts relevant for the disposal of this appeal are as under:

(2.) QAZI Gh. Nabi, Qazi Jalal -ud -din, Qazi Rashid -ud -din, Qazi Siraj -ud -din and Qazi Abdul Hamid are real brothers being sons of one Qazi Ataullah R/o Baghat Barzullah, Srinagar. They possess property in the shape of land and houses at Baghat -e -Barzullah and Mughal Mohalla, Chattabal over which they are engaged in litigation with each other since the year 1966. Mst. Aisha was their mother who also had a share in the said property. On 16.07.1966 all the five brothers filed a suit for declaration against their mother Mst. Aisha in respect of 3 Kanals and 10 Marlas of land situated at Baghat -e - Barzulla, Tehsil Budgam. This suit was, however, later compromised by the parties under which all the five brothers took 14 Marlas each in the said land. Ultimately, the case was disposed of and a decree to that effect was passed by the court of Ist. Addl. Munsiff, Srinagar on 20.7.1966. Though the matter ended in compromise but the litigation between the parties over the property did not stop. In the year 1974 a suit for partition in respect of property situated at Baghat Barzulla, was filed by Qazi Jalal -ud -din against his other brothers in the court of Sub Judge, Chief Judicial Magistrate, Srinagar on 14.3.1974 which was registered as COS No. 147 of 1974. In this case also the parties entered into a compromise in which they admitted that the property was joint. Ultimately a consent decree was passed by the court on 17.4.1974. The court ordered as under: -

(3.) ON 30.08.1978, however, Qazi Gh. Nabi challenged the decree passed by Sub Judge, Chief Judicial Magistrate as also the compromise deed filed before the court by means of a suit for declaration and perpetual injunction on the ground that the same was ineffective and inoperative. The suit was transferred to the court of City Judge, Srinagar where it came to be registered as COS 71 of 30.8.1978. Meanwhile, Qazi Abdul Hamid filed an application for execution before the court of Sub Judge, Chief Judicial Magistrate in respect of the decree passed by the court in earlier suit. Qazi Gh. Nabi resisted the application on the ground that he had already filed a suit for cancellation of the decree which was pending before the court of City Judge, Srinagar, as such the court could not proceed with the execution matter. The court, however, found that since no stay had been granted by the court of City Judge, Srinagar and that the court was not a party to the civil proceedings, it was his duty to execute the decree passed by it. The court therefore, appointed Sh. Sanaullah Dar, Advocate to effect actual partition and to give separate possession to the parties in accordance with the terms of the decree after visiting the spot. This order was challenged by Qazi Gh. Nabi before this Court in an appeal as Civil Miscellaneous Ist. Appeal No. 50 of 1978 titled Qazi Gh. Nabi v. Qazi Jalal -ud -din and others. The main ground taken by Qazi Gh. Nabi in the said appeal was that the court of Sub Judge, Chief Judicial Magistrate, Srinagar was not competent to pass the decree on the basis of compromise in the suit as it had no pecuniary jurisdiction to try the suit. It was urged before the court that the valuation of the suit was Rs. 15,000/ - and the Sub Judge, Chief Judicial Magistrate had no pecuniary jurisdiction to try the suit of this valuation, as such, the compromise arrived at between the parties and the decree passed in terms of the compromise are void for want of jurisdiction. The appeal was heard by the then Chief Justice of this Court (Honble Mr. Justice Mian Jalal -ud -din) who by means of order dated 31.5.1971 allowed the appeal and set aside the order of the executing court with the following observations: