HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

(Through Video Conferencing)

Pronounced On: 20 .05.2021.

OWP No. 1110/2017

Abdul Qayoom Khan and Others

Petitioner (s)

Through: -

Mr. M. Sultan, Advocate.

V/s

State of J&K and Others

…..Respondent(s)

Through: -

Mr. B. A. Dar, Sr. AAG with

Ms. Afroza Hassan, Assisting Counsel for R 3.

Mr. J. H. Reshi, Advocate for R 4 to 6.

CORAM:

Hon’ble Mr. Justice Javed Iqbal Wani, Judge.

JUDGEMENT

1.

In this petition petitioners on the foundation of case setup implores for

the following reliefs: -

a) Certiorari, quashing the fraudulent entries in the

Jamabandi as well as settlement records effected in

pursuance of a vacated appellate order of the then

Presiding officer, Syed Mohammad Amin Shah, with

further direction to restore the original record and

names of the petitioners in the proprietary column of

the records with respect to concerning Survey

No.3386/2921.

b) Mandamus, commanding the respondent State to

create/constitute/notify the authority in terms of

Section 4 of the Restitution of Mortgage Properties

Act to hear the suits and conduct the proceedings for

disposal of the redemption of mortgage properties of

land.

Page 2 of 12

OWP No. 1110/2017

c) Mandamus, commanding the respondent Director

Land Records to make available the necessary suit

record of proceedings of a case captioned Asmat

Khan and Ors. Vs. Mst. Noor Illahi and Ors., to the

authority empowered to hear and dispose of the case

in the light of Section 4 of the Restitution of Mortgage

Properties Act.

Or in the alternative

d) Mandamus, commanding the respondent Director

Land Records to transfer the proceedings of a suit

captioned Asmat Khan and Ors., Vs. Mst. Noor Illahi

and Ors., to some civil court for disposal under law.

e) Any other writ, order or direction which this Hon’ble

court may deem, fit and proper may also be passed

favouring petitioners and against the respondents,

albeit not prayed for.

2.

The background facts under the cover of which the petitioners claims

the reliefs aforesaid are that one Ali Khan and his brother Ghulam

Mohammd Khan (predecessors in interest of the petitioners) had

created a mortgage along with possession of land measuring 02 kanals

and 15 marlas covered under Survey No. 3386/2921 of revenue estate

Natipora (in short land in question) in favour of the predecessors in

interest of private respondents herein (father of respondent No. 3.)

3.

It is being stated that the predecessors in interest of the petitioners

along with some petitioners filed a civil suit on 26.03.1969 before the

court of Additional Munsiff, Srinagar, seeking therein the redemption

of the mortgage and delivery of possession of land in question which

court during the trial of the suit decided an issue of non-joinder of

Page 3 of 12

OWP No. 1110/2017

parties vide order dated 26.10.1974 which order came to be assailed

by the predecessors in interest of the private respondents herein

through a revision petition titled as Mst. Farhat Majeed Vs. Ghulam

Mohammad Khan, before this court and it is being further stated that

the said revision petition along with connected files came to be

transferred by this court to a forum/tribunal in terms of order dated

19.10.1978, constituted under an enactment of 1976 known as

<Jammu and Kashmir Restitution of Mortgage Properties Act,

1976” ,as the said Act barred the jurisdiction of the civil courts in

terms of Section 16 of the said Act, requiring the civil courts under

Section 5 to transfer such suits or any other proceedings arising

thereof to the tribunal created under the said Act of 1967 exercising

jurisdiction in that area under the Act.

4.

It is being stated that upon receiving the transferred suit/proceedings,

the tribunal, (Kashmir Division) decided the suit/proceedings while

allowing the same vide order dated 27.01.1982 directed delivery of

possession o