JUDGMENT

VENKATACHALA

(1) APPELLANTS were the plaintiffs while respondents were defendants in Civil Original Suit No. 20 of 1958 Filed in the High court of Jammu and Kashmir in respect of Martand Shrine in Anantnag District. Decree sought for in the suit was for grant of permanent injunctIOn to restrain the defendants from interfering with plaintiffs possessIOn of lands measuring 19 kanals 12 marlas in Survey Plots Nos. 1424/4, 1962/1424/4 and 2304/1143/1 measuring 19 kanals 6 marlas, 6 marlas) and 9 kanals 18 marlas respectively and Dharamshallas, temples and springs at Tirath Martand, Village Macha Bhawan, Tehsil Anantnag; from obstructing Hindus from their WOrship of Gods in the temples or of their performance of religIOus ceremonies at the springs and putting up any constructIOns on the disputed lands; and for ejectment of the defendants from tWO rooms (converted into three rooms) out of six rooms of the Dharamshalla on the southern side of the springs of Martand. Decree so sought for in the suit was granted limited to the extent of restraining defendants by permanent injunctIOn from interfering in any way with the performance of religIOus ceremonies by Hindus at the three springs (Kamal Kund, Bimal Kund and Gauri Kund), or their conducting of pujas in the temples and of holding Dewans in the open space north of the springs towards Pahalgam side on the occasIOns of Mal Mas, Ban Mas, Suraj Grahan, Chand Grahan, Soma Wati Amawas (Amawas falling on Monday), Amar Nath Jee Yatra perIOd and Vijay Saptami (7th day of Hindus month falling on Sunday), and of plaintiffs possessIOn of the building situated to the north of Dharamshalla towards Pahalgam Road and from erecting any Gurdwara at the Martand premises. But, decree was refused as regards ejectment of defendants from the tWO rooms (converted into three rooms) of Dharamshalla in their possessIOn as also of permanent injunctIOn sought for in respect of 4 marlas of the land in Plot No. 2304/1143/1.

(2) THE said decree in the suit was questIOned by the plaintiffs in the First Appeal No. 83 of 1967 filed by them in the same High court to the extent it did not grant certain reliefs while the same was questIOned by the defendants insofar it had granted certain reliefs against them by filing Civil First Appeal No. 87 of 1967. A divisIOn bench comprised of Mian Jalal-ud-Din and Anant Singh, JJ. heard the said tWO appeals having clubbed them together. Since the learned Judges who rendered separate judgments in those appeals failed to reach an agreement on tWO of the points that arose for their consideratIOn therein, they requested the Honble chief justice, to refer the tWO points on which they had not agreed, to a third Judge for his opinIOn thereon by making the following order:

"AS my learned brother Anant Singh, J. and myself have not agreed in our respective judgments to the points relating to questIOns of adverse possessIOn and the right of holding Dewans by the defendants, the matter may, therefore, be placed before my Lord Honble the chief justice for referring these points to a third Judge to be nominated by his Lordships."

(3) MUFTI Baha-ud-Din Farooqi. J. being the third Judge to whom the said tWO points were referred for his opinIOn, adverts to those points in his judgment thus:

"ANANT Singh, J. held that the possessIOn of the defendants over the tWO rooms in the Southern Dharamshalla was permissive and could be revoked by the plaintiffs as successors of Dharmarth. As regards holding of Dewans on the open space he held that the use could be based on custom but in the absence of any reliable evidence showing that the Dewans were held every year on the specified occasIOn and were so held as of right from times immemorial no right could be found in favour of the defendants. On this view he held that the finding of the learned Single Judge on these tWO items should be set aside.

MIAN Jalal-ud-Din, J., however, expressed a contrary op