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2014 Supreme(J&K) 429
JAMMU & KASHMIR HIGH COURT AT SRINAGAR
M.M. Kumar, Dhiraj Singh Thakur, JJ.
Ab. Rashid Wani and Ors. - Appellant
Versus
State of J&K and Ors. - Resopndent
OWP Nos. 36 of 2007, 1498 and 1570 of 2011 and 613 of 2012 and CSA No. 02 of 2013
Decided On : 05-09-2014
For the Respondents: M.A. Chashoo, AAG
The plaintiff had a right to protect his possession until evicted in accordance with the law.
Headnote:
Adverse Possession - Land Dispute - J&K State Lands (Vesting of Ownership to the Occupants) Act, 2001 - [OWP No. 1570/2011, OWP No. 1498/2011, OWP No. 613/2012, CSA No. 02/2013] - Summary: The controversy revolved around land measuring 6 kanals 15 marlas in Gulmarg, Kashmir, originally leased to predecessors in interest of the petitioners. The lease was renewed for 40 years in 1978. A sub-lease agreement was executed in 1976 for a hotel, which was gutted in fire in 1977. The court held that the petitioners continued as lessees and directed the official respondents to receive ground rent for the entire land. The court dismissed the petition seeking ownership rights under the J&K State Lands Act, as the land was already leased. The petition for quashing a receipt and mandamus for license renewal were rejected. In a Civil Second Appeal, the court held that the plaintiff had a right to protect his possession until evicted in accordance with the law. The court allowed the appeal and set aside the judgments and decrees. [FACT OF THE CASE] [FINDING OF THE COURT] [ISSUES] [RATIO DECIDENDI] [FINAL DECISION]
Dhiraj Singh Thakur, J.:-
1. Since in all the four writ petitions and the CSA aforementioned, the facts involved and the controversy between the parties is common, we propose to deal with them by way of a common judgment. However, we propose to briefly state the facts in each of them so that the controversy is understood and dealt with appropriately.
OWP No. 1570/2011:
CASE OF THE PETITIONERS:
The genesis of the controversy in all the aforementioned cases including the present one revolves around land measuring 6 kanals 15 marlas in plot No. 96 situate at Gulmarg, Kashmir. This land originally belonged to Thokar Nichand which was leased out to him by the Government. This property was subsequently a subject matter of sale executed by Thokar Harnam Chand on behalf of Thokar Nichand in favour of Haji Ghulam Mohammad, Haji Ghulam Nabi and Ghulam Rasool, sons of Sidiq Joo Wani and Haji Mohammad Abdullah S/o. Subhan Joo Wani R/o Karfali Mohalla, Srinagar.
2. It is stated that this plot of land measuring 6 kanals 15 marlas along with five single storied structures came to be purchased by aforementioned persons who were the predecessors in interest of the petitioners herein. Since the land in question was a subject matter of lease, the predecessors in interest of the petitioners appear to have approached Deputy Commissioner, Baramulla, who accorded sanction for transferring the same in favour of aforesaid vendees on the same terms and conditions as the original grant.
3. It is averred that pursuant to the transfer of the lease in favour of the vendees, the revenue authorities also attested a mutation in their favour. Subsequently, the predecessors in interest of the petitioners started a hotel commonly known as City View Hotel thereon.
4. It was in the year 1976, when the vendees executed an agreement with one Abdul Rashid Khan on 3rd of May, 1976, whereby, the hotel was given to him for a period of three years with effect from 1st May 1976 to the end of 1978 for a consideration of Rs. 10,000/-. A translated version of the agreement executed between the parties is also relevant which is reproduced hereunder:
"I, Abdul Rashid Khan S/o. Kh. Mohammad Khan am the resident of Khaipora Tehsil Tangmarg Kashmir.
Whereas the immovable property situated at Gulmarg comprised of the following houses:
(a) Single storied consisting of rooms as under:-
Drawing room one, Dinning room one, two numbers of bed rooms alongwith bathrooms and kitchen.
(b) Two Storied consisting of following rooms:-
Drawing room one, Dinning room one, six bed rooms alongwith bathrooms, kitchen, crockery, cutlery, quilts, curtains mentioned in the separate list owned and possessed by Haji Gh. Mohammad, Ghulam Nabi, Ghulam Rasool sons of Sidiq Joo, Abdul Rashid in person of his own behalf and as a guardian on behalf of other sons and daughters of Haji Mohammad Abdullah (deceased) R/o Karfali Mohalla Srinagar under the name and style of (City View Hotel). The said property is given by the owners to other people on contract basis. I have taken the above said property from its owners on contract basis for a period of three years with effect from May 1st 1976 till the end of year 1978 and the contract amount has been fixed at Rupees Ten Thousand with the owners. No addition or deduction will be made in the same.
Now I, executant, do hereby executed this agreement in favour of owners out of my own free will, consent and without any force or expulsion while possessed of my full senses on the following terms and conditions and do hereby declare that the employees under my supervision will perform the contract work excellently, honestly which will add to the reputation of the said hotel.
Moreover, there is a complete electric filling in the said hotel. I will also perform satisfactorily my duties as worker of the said hotel as per the direction of the visitors coming to the said hotel. I will also bear all the expenditure of the hotel for privacy of the visitors, electric fee, radio fee,
