The document in question was held to be an agreement to sell, not a deed of conveyance, and therefore, the specific performance could be sought. The provision of S. 8 of the Migrant Properties (PPRDS) Act was not attracted in the suit for specific performance. The petitioners needed to make a formal application for staying the proceedings under S. 3 of the Jammu and Kashmir Migrant (Stay of Legal Proceedings) Act, 1997.

Ali Mohammad Magrey, J.

1. Petitioners have filed the petition invoking the jurisdiction of this Court under S. 104 of the Constitution of Jammu and Kashmir read with S. 151 of the Code of Civil Procedure (CPC) for quashing order dated 13-12-2013 passed by the learned Additional District Judge, Baramulla, in an application filed by the petitioners under O. VII, R. 11, CPC seeking rejection of the plaint in the suit titled Mohammad Yousuf Malik and another v. Ashok Kumar Bhat and others.

2. Briefly put, the case of petitioners 1 and 2 herein represented by their atorney, petitioner No. 3, is this : that petitioners 1 and 2 are migrants, presently residing at Udhampur. They own a single storied house along with land underneath and appurtenant thereto, measuring 11 Kanals and 16 Marlas, falling under survey No. 990/39, Khewat No. 14 and Khata No. 372, situated at Sopore, District Baramulla, Kashmir. The private respondents herein illegally claimed the transfer of aforesaid property in favour of private respondents 1 and 2 on the basis of execution of a power of attorney and agreement to sell fraudulently attributed to the petitioners, which, the petitioners aver, they have never executed. It is averred in the petition that on learning about the aforesaid documents, they challenged the legality thereof in a suit which is sub-judice in the Court of Sub-Judge at Udhampur. According to the petitioners, respondents 1 and 2 caused their appearance in the aforesaid suit and filed an application under O. VII, R. 11, CPC seeking rejection of the plaint, inter-alia, on the grounds that the property being a migrant property, the jurisdiction of the Court to try the suit was barred under S. 8 of the J & K Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter, Migrant Properties (PPRDS) Act) and that, in this regard, there was a self-contained procedure provided by the aforesaid Act. Respondents 1 and 2, accordingly, sought leave to file written statement. The application so filed by respondents 1 and 2 was rejected by the learned Sub-Judge, Udhampur, by order dated 23-9-2010. Against the said order, respondents 1 and 2 are stated to have filed a civil revision, bearing No. 115/2010, which is stated to be pending before the Jammu Wing of this Court.

3. Meanwhile, respondents 1 and 2 filed a suit before the Court of Additional District Judge, Baramulla, seeking a decree of specific performance of the aforesaid agreement to sell and for an injunction to direct the official respondents 4 to 7 to issue permission for alienation of the property in question.

4. The petitioners herein appeared before the learned trial Court and filed an application under O. VII, R. 11, CPC for rejection of the plaint on the grounds stated therein. The learned Additional District Judge, Baramulla, disallowed the said application filed by the petitioners herein in terms of the impugned order dated 13-12-2013. Feeling aggrieved thereby, the petitioners have challenged the same in this petition.

5. The private respondents have filed their objections/reply. However, the official respondents have not filed any objections.

6. Respondents 1 and 2 in their reply have averred that the petitioners on 23-1-2009 executed an agreement to sell vis-a-vis the property in question in favour of respondent No. 2 and a power of attorney in favour of respondent No. 1, which execution took place at the Court premises at Udhampur. The consideration amount was fixed at Rs.12.00 lacs, which amount was paid to the petitioners 1 and 2 and the possession of the property was handed over by them to the answering respondents. It is averred that petitioners 1 and 2 also authorised the respondents to file a case for permission to sell the property before the authorities concerned that the papers for grant of permission were pending before the Divisional Commissioner, Kashmir. It is, however, stated that the petitioners, by their act and conduc