OWP No. 2637/2018

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HIGH COURT OF JAMMU & KASHMIR

AT JAMMU

OWP No.2637/2018, IA No. 01/2018

Date of order: 26.04.2019

Nazir Hussain Khan Vs. Khalid Hussain Khan

Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:

For petitioner (s)

:

Mr. M. R. Qureshi, Advocate.

For respondent(s)

: Mr. Sandeep Gupta, Advocate.

i)

Whether approved for reporting in

Yes/No

Law Journals etc.:

ii)

Whether approved for publication

in Press:

Yes/No

1.

This petition has been filed by the petitioner seeking setting aside of

order dated 30.11.2018 passed by learned Sub-Judge (CJM),

Poonch by virtue of which application of the petitioner for

impleading him as party defendant in a suit filed by the respondent

herein against the State has been dismissed.

2.

The case of the petitioner is that litigation between the petitioner

and the respondent (defendant therein) is already going on in

Revenue Court as the judgment passed by the Collector Agrarian

Reforms (SDM) Mendhar dated 21.06.2016 has been challenged by

the respondents before the Deputy Commissioner District Collector,

Poonch by way of filing an appeal, which is pending adjudication. It

is stated that during the pendency of this appeal, the respondent

filed a civil suit before the Sub Judge (CJM) Poonch for permanent

prohibitory injunction without impleading the petitioner herein as a

party respondent therein. It is further stated that on coming to know

about the pendency of the suit, petitioner moved an application

OWP No. 2637/2018

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before the court below, but the Sub-Judge (CJM), vide order dated

30.11.2018 rejected the said application of the petitioner without

appreciating correct position of law and fact that already litigation

between the petitioner and respondent herein is pending before the

Deputy Commissioner District Collector, Poonch. It is further stated

that prior to filing of suit by the respondent herein, petitioner filed

an application before the SDM Collector, Agrarian Reforms Jammu

against the respondent for restraining him from raising construction

over the suit land falling in Khasra No.1202/555 situated at village

Gholad Tehsil Mendhar, District Poonch, being State land.

3.

Learned counsel for the petitioner states that on 21.06.2016 the

Collector Agrarian Reforms (SDM), Mendhar categorically held

that mutation copy produced by the respondent herein before him is

a forged and fabricated one which is required to be cancelled.

4.

Against the aforesaid order, respondent filed an appeal before the

learned Deputy Commissioner, Collector, Poonch which is pending

before the said court.

5.

Respondent herein has filed objections stating therein that the

petitioner is not a necessary party as he has not sought any relief

against him. It is averred in the objections that petitioner herein has

taken a contradictory plea in the application filed for impleading

him a party defendant before the court below and another

application filed before Sub-Divisional Magistrate, Mendhar.

6.

I have heard rival contentions of learned counsel for the parties and

given my thoughtful consideration to whole aspects of the matter.

7.

The operative para of impugned order dated 30.11.2018 reads as

under:-

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<Heard the arguments from both the sides and also gone through

the application, objections and other record. The Ld. counsel for

the applicant while trying to make out a case for arraying the

applicant as defendant has submitted that the applicant Nazir

Hussain is the brother of the plaintiff. He is In possession of

adjacent land and on a case filed by him against plaintiff before

SDM Mendhar the plaintiff was evicted from the suit land which

is State land and plaintiff has cha