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CM(M) No.38/2021

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

….

CM(M) No.38/2021

CM No. 1249/2021

Reserved on 25.05.2022

Pronounced on: 08.09.2022

Mohammad Ramzan Mir and others

…………..Petitioner(s)

Through: Mr R.A.Jan, Senior Advocate

with Mr Uswad Attar, Advocate

Versus

Ashok Toshkhani and others

………Respondent(s)

Through: Mr G.A.Lone, Advocate with

Mr Mujeeb Andrabi, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

1.

Order dated 10^th November 2020, passed by Sub Judge, Budgam (for

short <Trial Court=), whereby while applying the provisions of Jammu

and Kashmir Migrants (Stay of Proceedings) Act, 1997 (hereinafter

referred to as <Act of 1997=), the proceedings in the Civil Suit pending

before it have been stayed, is being challenged in this petition filed

under Article 227 of the Constitution of India, precisely, on the

following grounds:

(i)

That applicability of Section 3 of Migrants (Stay of

Proceedings) Act of 1997, being a temporary statute of

limited scope and operation, is attracted only in case of the

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immoveable property being a Migrant Property as defined

under Section 2 (b) of Migrant Act of 1997.

(ii)

That impugned judgment and order dated 10.11.2020 has

been passed by Court below without taking deciding the

pivotal issue (Issue No.3), determinative of applicability or

otherwise of Section 3 of Migrants (Stay of Proceedings) Act

of 1997, in the case of suit of petitioners, and, therefore,

vitiated in law by reason of jurisdictional error and in sequel

thereto is rendered ultra vires the provisions of Section 3 of

Migrant Act of 1997, and as such, void ab initio, non est in

law, and liable to be set aside.

(iii)

That while rendering impugned judgment and order dated

10.11.2020, the. Trial Court has erred in law in not

appreciating that in the face of clear cut Statutory Mandate

contained in Section 54 and 138 Transfer of Property Act, the

so-called Instrument of Agreement and Relinquishment and

Indenture of Irrevocable Power of Attorney both dated

04.09.1989 lack inherently all the essentials/attributes of a

Deed of Conveyance capable of bringing about within the

meaning and contemplation of Section 54 Transfer of

Property Act conveyance of Ownership of Immoveable

Property, a-fortiori, no conveyance of title qua the Suit

Property having taken place either in fact or in law, and has

thus misdirected in point of law in proceeding to pass the

Impugned Judgment and Order dated 10.11.2020 staying on

an unfounded assumption the proceedings in the Suit of the

Plaintiffs (Petitioners herein).

(iv)

That in the attendant facts and circumstances of the case, the

Impugned Judgment and Order dated 10.11.2020 is afflicted

with the vice of failure of exercise of jurisdiction as by law

vested resulting into grave miscarriage of justice and

therefore, cannot be allowed to stand and deserves to be set

aside.

2.

Reply has been filed by respondents, averring therein that order

impugned has been passed strictly in accordance with Section 3 of the

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Act and no error of jurisdiction or otherwise appears from the order

impugned. It is also contended that petitioner filed a suit before the

Trial Court for declaration and injunction claiming almost same reliefs

which were sought in OWP no.1216/2012. The said was contested by

respondents and a number of issues were settled by the Trial Court and

that one of the main issues related to the stay of proceedings filed

against migrants. It is averred that the Trial Court decided the issue in

favour of defendants – respondents herein.

3.

I have heard learned counsel for parties and considered the matter.

4.

Plaintiffs – petitioners herein appear to have filed a Suit in pursuance of

a judgment dated 30^th November 2015, passed by this Court in a writ

petition, being O