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2021 Supreme(J&K) 45
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
RAJNESH OSWAL, J.
Mushtaq Ahmad Khan – Petitioner
Versus
Rafiq Ahmad Sheikh and Another – Respondents
CRMC No. 439 of 2018
Decided On : 26-03-2021
Advocate Appeared:
For the Petitioner: Mr. Rizwan Bhat.
For the Respondent: Mr. P.S. Ahmad.
Point of Law: Attachment of property - Fake/forged rental deed - Release of shop.
Headnote:
Tenancy - possession - Attachment of property which jointly belongs to the petitioner and proforma respondents and has directed the restoration of shop in favour of contesting respondent under Criminal Procedure Code cannot decide the intricate questions of law and fact much less to the entitlement of the rival parties to the property attached - Learned trial Magistrate has not conducted any enquiry whatsoever and in illegal exercise of jurisdiction has directed the restoration of the shop in favour of contesting respondents - Impugned order is in contravention to directions of this Court made in OWP.
Finding of the Court:
Application was filed it was stated that the accused i.e. Asif Ahmad Khan has never executed any rent deed in respect of shop in question in favour of any person and rent deed produced - Learned trial court after perusing rent deed released the shop in favour of tenant i.e. respondent nos. 1 and 2. The said rent deed was challenged by the petitioner and proforma respondents and the said suit was decreed in part - Learned trial Magistrate while releasing the shop in favour of respondent no. 1 has observed that shop was given on rent with effect against an amount and it was further highlighted that the landlord has acknowledged receipt of Rs. 11 lacs as premium from the tenant, so once there was a rent deed, prima-facie depicting the possession of respondent nos. 1 and 2, the learned trial Magistrate has rightly released the shop in favour of respondent nos. 1 and 2 and said finding can neither be termed as perverse or erroneous in view of record available before the trial Magistrate, therefore, this Court does not find any illegality in the order impugned.
Result: Petition is dismissed.
JUDGMENT :
RAJNESH OSWAL, J.
1. Through the medium of present writ petition the petitioner has assailed the order dated 19th April, 2018 passed by the learned Chief Judicial Magistrate, Anantnag (hereinafter referred to as the “trial court”) by virtue of which the shop that was initially attached was ordered to be restored to the tenant/applicant therein.
2. The present petition has been filed by the petitioner on the grounds:-
(a) That the learned trial court had illegally and in blatant violation of the relevant provisions of law attached the property which jointly belongs to the petitioner and proforma respondents and has directed the restoration of shop in favour of contesting respondent.
(b) That the learned trial Magistrate while exercising powers under Criminal Procedure Code cannot decide the intricate questions of law and fact much less to the entitlement of the rival parties to the property attached.
(c) That the learned trial Magistrate has not conducted any enquiry whatsoever and in illegal exercise of jurisdiction has directed the restoration of the shop in favour of contesting respondents.
(d) That the impugned order is in contravention to the directions of this Court made in OWP No. 4/2018.
3. Before considering the issues raised by the petitioner it would be appropriate to have a brief resume of facts which are as under.
4. It is stated that the petitioner and proforma respondents being the legal heirs of deceased Ghulam Qadir Khan have inherited 9 marlas 1 Sirsai and 11 feet land falling under Survey No. 1557-158 min situated at Mohalla Mehman Anantnang along-with 3 storied house constructed thereon and the brother of the petitioner namely Asif Ahmad Khan (proforma respondent no. 3) had taken some amount as loan from respondent nos. 1 and 2 and the amount has already been liquidated and the contesting respondents had taken vehicle bearing Registration No. JK03D-1030 in lieu of the said amount belonging to the petitioner and proforma respondents. Besides the petitioner and proforma respondents have paid Rs.3 lacs to the respondent no. 1 and Rs.5.47 lacs to the respondent no. 2. It is further stated that false and frivolous complaint came to be filed, captioned as Noor-Ud-Din Khatana versus Asif Ahmad Khan which is pending before the learned Chief Judicial Magistrate Anantnag wherein the complainant Noor-Ud-Din Khatana has alleged commission of offences under Section 403, 406, 409, 417, 420 and 506 RPC against the proforma respondent no. 3 and the other two accused and it is further stated that due to absence of the respondent no. 3, the learned Magistrate vide order dated 22nd February, 2016 ordered the attachment of the house and shop belonging to the petitioner. On 26.03.2016, the proforma respondent no. 3 surrendered and was remanded to judicial custody and thereafter on 29th March 2016 the petitioner laid a motion seeking release of the property as the said property belonged to the petitioner and proforma respondents jointly and had been attached from the joint possession of petitioner and proforma respondents. It is further stated that one more application was filed on behalf of contesting respondents seeking recall of attachment order dated 22nd February, 2016 with respect to the shop in question on the ground that proforma respondent no. 3 had allegedly entered into an agreement to let the said shop in favour of contesting respondents.
5. Vide order dated 29th March, 2016, the residential house was released from attachment in favour of petitioner and thereafter learned Chief Judicial Magistrate vide order dated 19th April, 2018 restored the said shop in favour of contesting respondent. It is further stated that in the meanwhile petitioner approached the concerned revenue agencies, including Dy. Commissioner, Anantnag and Tehsildar, Anantnag seeking partition of the joint property of the petitioner and proforma respondents, that was jointly inherited by them, because under the garb of attachment order passed by lea
