Advocates:
['G A LONE', '', 'JAHANGIR IQBAL GANAI', 'SHEIKH OMAR', 'MUTAHAR AHMAD MAKHDOOMI', 'G Q BHAT', '', 'RIZWAN BHAT']

Page 1

CSA no.05/2013

HIGH COURT OF JAMMU &KASHMIR AND LADAKH

AT SRINAGAR

…

CSA no.05/2013

Reserved on: 26.04.2022

Pronounced on: 07.07.2022

Ghulam Mohammad Mir

…….Appeallant(s)

Through: Mr Mutahar A. Makhdoomi, Advocate

Versus

Mohammad Akbar Thoker

……Respondent(s)

Through: Mr Rizwan Bhat, Advocate

CORAM:

HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

1. This is a Civil Second Appeal against judgement dated 11^th December

2012, passed by Principal District Judge, Anantnag (for brevity <1^st

Appellate Court=) in an Appeal titled Ghulam Mohammad Mir v.

Mohammad Akbar Thoker as also judgement and decree dated 17^th

September 2012, passed by Sub Judge, Anantnag (for short <Trial

Court=) and for setting aside the same.

2. It is the case of appellant that respondent is a resourceful person

having huge property in Anantnag, including a building having five

shops in its ground floor at Achabal Adda, Anantnag. The said

building is said to have been constructed by respondent after forcible

demolition of old building in 1998, depriving tenants, including

appellant from tenanted premises. It is stated that unlawful demolition

Page 2

CSA no.05/2013

of old tenanted premises was carried out during intervening night of

111^th/12^th July 1998 and that in this regard FIR no.168/1998 at police

station Anantnag was registered. Contention of appellant is that in

order to escape from prosecution which might have led to conviction

of appellant and his brothers, he arranged negotiations and settled

their dispute through the offices of Byopar Mandal and its Chairman

and that in this regard a document was also executed. It is claimed in

the instant appeal by appellant that as against two shops, he was given

one shop on lease basis at a rent of Rs.6600/- per annum. It is also

contention of appellant that contents of the deed specifically mention

that tenanted premises was handed over to appellant along with

possession through the said document and that respondent’s brother,

Ghulam Ahmad Thoker, is a practicing advocate at Anantnag and he

is an associate of draftsman of the so-called licence deed and are

sharing the same chambers in the premises of District Court,

Anantnag. After execution of settlement, appellant, who seems to be a

most innocent person, has been called to Sadder Court, Anantnag, for

reducing into writing the rent deed in respect of the shop which was

given to him along with possession during settlement arrived at by the

parties in the meeting held on 17^th July 1997.

3. It is also stated by the appellant in the instant appeal that he believed

the story and being anxious to have a legal document reduced into

writing on the basis of settlement came to the chambers of

Mohammad Amin, Advocate, who drafted the document wrongly

styled as Licence Deed and signed it. According to appellant the

Page 3

CSA no.05/2013

document was cleverly drafted with a view to show that it is a licence

deed. It is also averred that on the basis of the said document,

respondent

filed

a

suit

for

mandatory

injunction

against

appellant/defendant directing vacation of premises and recovery of

Rs.3791/- as arrears of fee for occupation of shop along with damages

and there is no claim made by respondent/ plaintiff for handing over

the

possession

to

him.

Written

statement

was

filed

by

appellant/defendant.

4. As can be seen from the perusal of the file, the Trial Court framed

following issues for adjudication of the suit:

(1) Whether the defendant came to be in possession of the

suit property in pursuance of licence deed executed on

30.07.1998? OPP

(2) Whether the said deed has expired on 30^th of July 1999,

and the defendant has failed to pay the rent since 1^st

January 1999 and is running in arrears to the tune of

Rs.3791.70? OPP

(3) Whether the defendant is illegally occupying the said

premises since he has