Advocates:
['NAZIM KHAN', 'JEHINGIR GANIE', '', 'Z A SHAH']

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CSA no.01/2018

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

…

CSA no.01/2018

Aziz Khawaja

…….Appellant(s)

Through: Mr Nazim Khan, Advocate

Versus

Ali Bhat

……Respondent(s)

Through: Mr Z.A.Shah, Senior Advocate

with Mr A. Hanan, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT (ORAL)

06.05.2022

1. Heard and considered.

2. This Civil Second Appeal is directed against the judgement and decree

dated 31^st October 2017, passed by Additional District & Sessions

Judge, Handwara (for brevity “1^st Appellate Court”), in an appeal,

bearing File no.34/Appeal titled Aziz Khawaja and others v. Ali Bhat.

3. A civil suit, bearing File no.280/Numbri, titled Ali Mohammad Bhat

v. Aziz Khawaja and others, filed by respondent herein before Sub

Judge (CJM) Handwara (for short “Trial Court”), was decreed vide

judgement dated 29^th December 2012, cancelling decree dated 24^th

June 1997 in File no.122/Numbri titled Abdul Aziz Khawaja v. Ali

Mohammad Bhat for land measuring 05 Kanals under Khasra no.402,

situated at Sherkote Tehsil Handwara, with a decree for permanent

S.no. 01

Cause List

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CSA no.01/2018

injunction restraining defendants permanently from causing any sort

of interference over the suit land.

4. It is worthwhile to mention here that the Trial Court framed and settled

following issues:

(1) Whether the plaintiff is in possession as owner of the land

described in para 1^st of the plaint? (OPP)

(2) Whether the decree dated 24.6.97 passed by Sub Judge,

Handwara, for land measuring 05 Kanals under Khasra

no.402 situated at Sherkote is fake, forged and based on

fraud, being null and void on the rights of plaintiff as such

deserves to be cancelled? (OPP)

(3) Whether the defendants are interfering in the possession of

the plaintiff over the suit land on the basis of fake and

forged decree? (OPP)

(4) What are the reliefs to which the parties are entitled?

5. Evidence was adduced before the Trial Court. Before the Trial Court,

judgement and decree dated 24^th June 1997 was sought to be cancelled

with perpetual injunction restraining defendants from interfering in

the suit property. The Appellate Court has found that a plaint was

instituted on 18^th June 1997 and decreed on 24^th June 1997 as being

compromised. In terms of judgement dated 29^th December 2012, the

Trial Court (Sub Judge (CJM), Handwara, has found that plaintiff had

not executed any compromise in favour of defendant nor had appeared

before the court and that defendant no.1 had managed to obtain fake

and forged decree regarding suit land on the basis of fake and forged

compromise deed, thereby impersonating someone else in place of

plaintiff in the court. Accordingly, the Trial Court cancelled the decree

dated 24^th June 1997 and restrained defendants from causing any sort

of interference over the suit land.

6. Civil First Appeal was preferred by defendants – appellants herein

before the 1^st Appellate Court, which was dismissed vide impugned

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CSA no.01/2018

judgement and decree dated 31^st October 2017, upholding the Trial

Court judgement and decree.

7. Counsel for appellant has proposed the following substantial

questions of law for deciding the instant appeal:

(1) Whether consented decree/judgement could be set aside

without following the mandate of law, so as to plead and prove

impersonation or fraud?

(2) What procedure is to be adopted for verification of thumb

impression or signature subscribed on compromise deed

entered between the parties before court of law. If in the

circumstances or eventuality forensic science laboratory opined

specimen of parties do not reveal detail or does not project

characteristic detail and in case of being smudged and opinion

for its veracity is not possible due to improper specimen?

(3) Whether compromise entered between the p