##PAGE1##

Sr. No.133

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

(Through virtual mode)

Case:-CM(M) No. 596/20 25

CM No.8969/2025

Caveat Nos.3333/2025 & 3323/2025

Mohd. Amin Shah and anr. …Petitioner(s)/Appellant(s)

Through: Mr. Syed Riyaz Hussain, Advocate.

V/s

Mohd. Abdullah Shah and ors. …. Respondent(s)

Through: Mr. Syed Abid Parwaz, Advocate.

CORAM: HON’BLE MR. JUSTICESANJAY DHAR, JUDGE

ORDER

30.12.2025

1. The petitioners have challenged order dated 23^rd December 2025 passed by

the learned Principal District Judge, Shopian(hereinafter „the appellate court‟)

whereby, application for condonation of delay in filing the appeal against order

dated 25^th October 2020 passed by the learned Sub Judge, Shopian has been

dismissed and, consequently, the appeal has also been dismissed.

2. Issued notice to the respondents.

3. Mr. Syed Abid Parwaz, who is on Caveat, accepts notice on behalf of the

respondents. With his appearance, Caveat(s) shall stand discharged.

4. Heard learned counsel for the parties and peruse the record.

5. It appears that the petitioners (herein after „the plaintiffs‟) have filed a suit

against the respondents (herein after „the defendants‟) before the court of learned

Sub Judge, Shopian seeking a declaration that they are entitled to half a portion of

the landed estate measuring 40 Kanals 7 marlas situated at village

Nazneenpora,Tehsil and District Sophian. A permanent injunction restraining the

defendants from interfering in plaintiffs‟ possession of the land measuring 13

2

Kanals out of the suit land has also been sought. Besides this,the plaintiffs have

also sought partition and separate possession with a direction to the defendants1

and 2 to hand over possession of 7Kanals and 3 ½ marlas of land out of the suit

land to the plaintiffs.

6. It appears that during the pendency of the suit, on 19^th of March 2013,the

learned Trial Court passed an interim order directing the parties to maintain status

quo on spot. The said order was made absolute on 25^th March 2014, with the

consensus of the parties. Thereafter, the defendants 1and 2 filed an application

before the Trial Court seeking variation of order dated 25^th March 2014 on the

ground that there has been change in the circumstances, in as much as the family

of the said defendants has increased, as a result of which, they need to construct a

residential house upon their share of the suit land, which is under their

possession. The said application was disposed of by the learned trial court in

terms of impugned order dated 25^th October 2024 after inviting objections from

the plaintiffs and after hearing the parties. The learned trial Court permitted

defendant no.1 to raise construction upon the land which is in his possession

subject to furnishing of an undertaking that in case upon disposal of the suit, the

plaintiffs are found entitled to the portion of the land on which the construction

has been raised, the defendants will give land of equivalent value to the plaintiffs

in lieu of it.

7. Against the aforesaid order of the learned Trial Court, the plaintiffs filed an

appeal before the learned District Judge, Shopian on 5^th March 2025. Along with

the appeal, the plaintiffs also filed an application for condonation of delay in

filing the appeal as the appeal was filed after a delay of about 100 days. The

learned Appellate Court, after hearing the parties, came to the conclusion that

plaintiffs/appellants have not explained the delay in filing the appeal and, as such,

3

their application was dismissed, which resulted in a consequent dismissal of the

appeal.

8. The petitioners/plaintiffs have challenged the impugned orders on the

grounds that the learned appellate court has failed to consider the reasons that

were assigned by plaintiffs for seeking condonation of delay in filing the appeal.

It has been further contended that there was no malafide or intentional inaction on

the part of the plaintiffs in filing the appeal and, as such, the delay in filing appeal

deserved to be condoned. It has been c