IMPORTANT POINT
Forcible encroachment over land—Efficacious statutory remedy must be availed of before filing writ petition.

JUDGMENT

1. In this petition, the petitioners have, inter alia, prayed for issuance of following writs:—

“(i) A writ, order or direction including one in the nature of Certiorari, quashing the impugned order dated 13-10-2020 (Annexures I) as also the consequential lease deed dated 2-11-2020 (Annexure-II).

(ii) A writ, order or direction including one in the nature of Mandamus commanding upon the respondents to refrain and desist from raising any construction on spot or from changing the nature and character of the land in question.

(iii) A writ, order or direction including one in the nature of certiorari, quashing the impugned building permission dated 19-1-2021.”

2. Briefly put, facts, as projected by the petitioners in this petition, are that a piece of land measuring 4 marlas 62 sqft under survey No.1288-Min khewat No.05, Khata No.07 situated at Brari Numbal [ “the subject land”] is part of an ancestral property of the petitioners and respondent No.4 along with other co-sharers/descendants of their common ancestors, namely, Syed Mehdi and Syed Assadullah. It is submitted that Syed Mehdi and Syed Assadullah were brothers and jointly owned land measuring 86 marlas under survey No.1288 at Brari Numbal, Khanyar Srinagar. It is claimed that the petitioners being the descendants of Syed Mehdi inherited 15 marlas as against Syed Rasool Shah, father of respondent No.4, inherited 14 marlas. Said Syed Rasool Shah, however, migrated to Pakistan and was, thus, declared as evacuee. He is survived by respondent No.4 and another daughter Ms. Saima Mubeen resident of Munawarabad, Khayam, Srinagar. It is submitted that the property of evacuee Syed Rasool Shah has been declared as evacuee property by respondent No.3 in terms of notification dated 31.05.1958. It is stated that respondent No.4 claiming to be an allottee of the evacuee land left behind by her father , in terms of an order of allotment bearing No.1044 dated 27.06.1959 as also owner in possession of land measuring 4 marlas in the same survey number instituted a suit for permanent prohibitory injunction against her sister Mst. Saima Mubeen and one of the petitioners i.e. petitioner No.2 in the Court of 1st Civil Subordinate Judge (Municipal Magistrate), Srinagar. It is contended that the Civil Suit was filed by respondent NO.4 only with a view to legitimise her encroachment over the landed property of the petitioners measuring 4.6 marlas as was left with them after acquisition of a part of land measuring 10.5 marlas out of their landed property of 15 marlas. The said civil suit was, however, dismissed. After the dismissal of the suit, with a view to defeat the legal rights of the petitioners over the land encroached by respondent No.4, she executed a sale deed on 03.06.2019 in favour of respondent Nos. 5 and 6. The said sale deed executed by respondent No.4 in favour of respondent nos. 5 and 6 is also subject matter of challenge before the competent Court of civil jurisdiction i.e. 4th Additional District Judge, Srinagar.

3. In a nutshell, the grievance of the petitioners is that the subject land, which is sold by respondent No.4 to respondent Nos. 5 and 6 is the land of the the petitioners forcibly encroached by respondent No.4. It is the contention of the petitioners that while the parties were litigating in the Civil Courts, respondent No.2, in terms of order No.81 of 2020 dated 13.10.2020, accorded sanction for lease of the subject land in favour of respondent Nos. 5 and 6 for commercial purposes. The subject land was allotted in favour of respondent Nos. 5 and 6 on the basis of some report submitted by respondent No.3 to respondent NO.2 to the effect that even, though, land measuring 2 kanals and 09 marlas and 124 sft. and a house constructed thereon stood notified as evacuee property during the year 1957 in the name of Syed Rasool Shah, the evacuee, but the same all along remained in the possession of his daughter i.e. respondent No.4 and that respondent No.4 illegally an