Page 1

LPA no.20/2023

c/w LPA no.46/2023

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

…

LPA no.20/2023

c/w LPA no.46/2023

CM nos.694/2023; 1172/2023; 1173/2023

Reserved on: 17.03.2023

Pronounced on: 03.04.2023

Fayaz Ahmad Rather

……...Appellant(s)

Through: Mr M. A. Qayoom, Advocate

Mr P. S. Ahmad, Advocate

Versus

Union Territory of J&K and others

………Respondent(s)

Through: Mr Jahangir Iqbal Ganai, Senior

Advocate with Mr Mansoor Ahmad,

Advocate

CORAM:

HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE

HON’BLE MR JUSTICE PUNEET GUPTA, JUDGE

JUDGEMENT

1. These two Appeals, one filed by Fayaz Ahmad Rather and another by

his counsel, Shri P. S. Ahmad, Advocate, are directed against

judgement dated 11^th January 2023, passed by learned Single Judge

(Writ Court) in WP(C) no.2610/2022, whereby the Writ Court has

dismissed the writ petition of the appellant herein (“the writ petitioner”)

along with costs of Rs.1,00,000/-, on the solitary ground of suppression

of material facts and misleading the Court. The Writ Court has also

deprecated the conduct of counsel for writ petitioner and has warned

him to be very careful in future.

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LPA no.20/2023

c/w LPA no.46/2023

2. Both the writ petitioner and his counsel, Mr Ahmad, are aggrieved of

the impugned judgement and have assailed the same on multiple

grounds, more prominently on the ground that on the facts and on

material on record there was no suppression of material facts and that

the Writ Court could not draw distinction between the “material facts”

and “unnecessary and peripheral facts”.

3. Before we advert to the grounds of challenge vehemently urged by

Mr.Qayoom, learned counsel for appellants, we deem it appropriate to

give brief resume of the factual antecedents leading upto the filing of

the instant appeals.

4. There is a dispute between writ petitioner and respondents 8 to 10 with

respect to the land measuring 01 Kanal 01 Marla under Survey no.748,

05 Marlas under Survey no.749, and 06 Marlas under Survey no.752,

along with a double storeyed house constructed thereon, situate at Rani

Pura, Kulgam (subject property). Indisputably the subject property was

owned by respondent no.11 (a migrant). The writ petitioner claims the

subject property on the basis of an affidavit and agreement purportedly

executed by respondent no.11 in his favour for consideration of

Rs.16.00 Lacs; out of which the writ petitioner claims to have paid

Rs.10.00 Lacs to respondent no.11. Respondents 8 to 10 have laid their

claim on the subject property on the basis of a valid sale deed executed

by respondent no.11 after seeking prior permission from the competent

authority, i.e., Divisional Commissioner, Kashmir, in terms of Order

no.1283-DIVK of 2010 dated 3^rd April 2010. Respondents 8 to 10 also

rely upon mutation no.3418 dated 22^nd December 2011, attested by

attesting officer, mutating the subject property in their favour.

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LPA no.20/2023

c/w LPA no.46/2023

5. This tug of war to claim subject property between the parties led the

writ petitioner to file a civil suit for declaration before the court of

learned Munsiff, Kulgam (Trial Court), wherein the writ petitioner

challenged the Deed of Power of Attorney and Agreement to Sell

executed by respondent no.11 in favour of respondents 8 to 10. Along

with the suit, the writ petitioner also moved an application for grant of

temporary injunction restraining respondents 8 to 10 herein from

interfering in the suit property. Vide interim order dated 9^th November

2011, the Trial Court, while issuing notice to respondents 8 to 10 herein

(defendants in the suit), directed the parties to maintain status quo with

regard to the suit property till further orders. The suit was contested by

respondents 8 to 10 by filing written statement as also by moving an

application for vacation of the ad interim ex parte stay granted by the

Trial Court on