SHYAM LAL BHAT Vs. AHMAD BHAT

JUDGEMENT

(1.) THIS is a second appeal directed against an order of the learned District Judge, Kashmir, and arises -out of the following facts: -

(2.) ONE Syed Taki sold 8 kanals and 6 marlas of land, of which the land in dispute forms a part, to one Abdul Aziz by means of a sale -deed executed on 15 -1 -99 and registered on 31 -3 -99. The plaintiff -appellant brought a suit for prior purchase of the -land and obtained a decree which was affirmed on appeal. The plaintiff -appellant took out execution, and got possession of the suit land with the exception of 2 marlas comprised in khasra No. 701. This piece of land is now in dispute. The plaintiff -appellant brought the present suit for possession of these two marlas of land with the prayer that a structure built by the defendants without any right or title, and which they have named as a mosque, be demolished and possession thereof be given to him.

(3.) THE defendants in their written statement pleaded that the suit land was always a place for offering prayers and later on a mosque was built on it. They further affirmed that this mosque was known as Bagh Kalantar Mosque. The learned City Judge, Srinagar, Mr. Azim -ud -Din Matoo, decreed the plaintiffs suit on 5 -8 -07. On appeal the learned District Judge Mr. Nazir Ahmad Shah remanded the case to the trial Court with the direction that the Mutwali in charge of the mosque should be made -a party so that the case may be finally disposed of. The plaintiff came up in revision to this Court. This Court did not disturb the order of remand made by the learned District Judge, but made the observation that "the District Judge should have firstly insisted on a specific finding as regards the existence or otherwise of the alleged mosque before he the District Judge had directed that the Mutwali in charge of the Bagh Kalantar Mosque should be made a party." This Court further observed that "the Mutwali can be impleaded as a party only when it had been specifically found that there existed on the suit land a mosque of the name of Bagh Kalantar." This Court also framed the following issue, i.e., "does a mosque of the name of Bagh Kalantar exist on the suit land.  The trial Court was directed to try this issue, and if a finding were recorded that the mosque did, as a matter of fact, exist, then in that case the Mutwali shall be impleaded as a party. Evidence was recorded after the case was remanded by this Court by the learned City Judge Ch. Bhagat Ram who after recording the evidence of the parties, arrived at the finding that no mosque of the name of Bagh Kalantar did exist on the suit land. The suit was, therefore, decreed in favour of the plaintiff by Ch. Bhagat Rams successor, Mr. Mohan Krishen Tikoo on 10 -12 -2011. The defendants went in appeal to the learned District Judge who by his order dated 16 -8 -55 dismissed the plaintiffs suit on various grounds. He, however, did not record any finding as regards the issue which was remitted by this Court.