Disposed

Khursheed Hussain Wani v. Mohammad Akram Dar

J&K HC10 Dec 2021CM(M)/198/2021

Case brief

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What is this about?

This order in a miscellaneous petition set aside the trial court's rejection of a stay application. The High Court held that the dispute over 6 Marlas of land, pending in an earlier suit, necessitated the withdrawal of that portion of the respondent's subsequent suit while allowing the balance to proceed.

What did the court decide?

The impugned order is set-aside. The subsequent suit is dismissed as withdrawn to the extent of 6 Marlas of land; it may proceed with respect to the rest of the land.

Khursheed Hussain Wani Vs Mohammad Akram Dar — Property and Title | J&K HC (2021)

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Supplementary No. 1 S. No. 156

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

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CM (M) 198/2021 CM No. 8043/2021 Caveat No. 1932/2021

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Khursheed Hussain Wani

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… Petitioner(s)

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Through: Mr. Ateeb Kant, Adv. V/s

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Mohammad Akram Dar

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Through: Mr. Sheikh Mushtaq, Adv.

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… Respondent(s)

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CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

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O R D E R 10.12.2021

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Caveat stands discharged.

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Impugned in this petition is Order dated 29^th November, 2021, passed by the learned Munsiff, Chadoora, (‘ the trial court’ ), whereby the trial court has rejected the application of the petitioner for stay of subsequent suit in terms of Section 10 of the Code of Civil Procedure. It is submitted by the learned counsel for the petitioner that land measuring 6 Marlas comprised under Khewat No. 209, Khata No. 410 and Survey No. 77 min situated at village Dhrambugh Tehsil B.K.Pora, Budgam, which respondent claims to have purchased from the petitioner by virtue of Agreement to Sell dated 28^th July, 2018, is subject matter of suit pending before the Sub Judge, Chadoora and, therefore, the respondent could not have filed subsequent suit with respect to the same land in addition to some 11 Marlas of more land, which the respondent also claims to have purchased from the petitioner.

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Learned counsel for the petitioner, therefore, submits that the issue with regard to the claim of the respondent qua the land measuring 6 Marlas aforementioned is, thus, subject matter of adjudication in both

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the suits. He, therefore, argues that the matter in issue in the earlier suit is directly and substantially in issue in the subsequent suit and, therefore, Section 10 CPC is attracted. The trial court has, thus, committed a serious error of law and fact in dismissing the application of the petitioner.

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03 . Per contra, learned counsel for the respondent submits that subsequent suit filed by the respondent pertains to 17 Marlas of land, which also includes 6 Marlas of land, which is subject matter of the earlier suit. He, therefore, fairly submits that he could not have agitated the dispute with regard to 6 Marlas of land in the subsequent suit when the same was directly and substantially an issue in earlier suit. He, therefore, prays for withdrawal of the subsequent suit, in so far as, it pertains to 6 Marals of land subject matter of Agreement to Sell dated 28^th July, 2018.

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1. Having heard learned counsel for the parties and perused the material on record, I am of the view that the controversy raised in this petition can be set at rest with the petitioner, who is plaintiff before the trial court seeking withdrawal of his suit to the extent of 6 Marlas of land comprised under Khewat No. 209, Khata No. 410 and Survey No. 77 min situated at village Dhrambugh Tehsil B.K.Pora, Budgam, subject matter of Agreement to Sell dated 28^th July, 2018.

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1. Accordingly, this petition is disposed of and the order impugned is set-aside. The subsequent suit of the respondent, which is subjudice before the court of learned Munsiff, Chadoora, is dismissed as withdrawn to the extent of 6 Marlas of land. The same may proceed with respect to the rest of the land in accordance with law. Needless to say, that the order of status quo passed by the court shall now operate qua the subject matter of the suit, is land other than 6 Marlas which is subject matter of previously instituted suit.

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(SANJEEV KUMAR) JUDGE

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Srinagar 10.12.2021 “Shamim Dar”

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Whether the order is reportable? Yes/No

Khursheed Hussain Wani v. Mohammad Akram Dar

Case brief

What is this about?

What did the court decide?

Khursheed Hussain Wani v. Mohammad Akram Dar

Case brief

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What did the court decide?

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