S. No. 89 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR RFA No. 07/2025 Vaishali Chopra and Anr. …Appellant/Petitioner(s) Through: Mr. S.M. Ayoub, Advocate Vs. Ashok Kumar Langoo and Ors. ...Respondent(s) Through: Mr. Zubair Ahmad, Advocate for R-1to 7 Mr. Bikramdeep Singh, Dy. AG for R-8&9 CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 03.11.2025 1. The appellants challenge the Judgment/Order dated 20.12.2024, passed by the Additional District Judge, Srinagar (Trial Court) whereby the plaint has been rejected under Order VII Rule 11 of the Code of Civil Procedure. The impugned order is challenged on the following grounds: I. The Court below has wrongly rejected the plaint of the (Plaintiff) Appellants, the impugned judgment/order dated 20.12.2024 has taken away the accrued legal right of the Appellants. The view taken by the Trial Court is completely against the Jammu and Kashmir Migrants Immovable Preservation, Protection and Restraint on Distress Sales) Act 1997. The Suit is filled by sister against so called brother both are migrants, on sale of property in fraudulent manner, respondent projecting himself the sole legal heir of Late R.N Langoo excluding the real legal heir of Late R.N. Langoo. The pure question is of inheritance based on title and possession of the property an issue involved in the suit. The Trial Court has fallen into grave error of law by rejecting the plaint vide Order dated 20.12.2024. II. That the trial court has committed grave error of law not considering the Order/Judgment of Hon’ble Court dated 12.07.2023 In OWP No. 2481 of 2019 as such the impugned order is bad in law is liable to set aside under the appropriate orders of this Hon’ble Court. III. That the suit of the plaintiffs/Appellants is based on titled and being the respondent No.1 has executed a power of attorney on the same basis claiming himself the sole legal heir, on the date of executing power of attorney the title of the property was in the name of Late R.N. Langoo, the grandfather of the appellants, the issue is purely within the domain of civil court as has been held by this Hon’ble Court vide order dated 12.07.2023 in OWP No. 2481 of 2019 and replicated by the ld trial court in para 21 of the impugned judgment and applied in contrary, as such the impugned order is bad in law is liable to set aside under the appropriate orders of this Hon’ble Court. IV. That the judgment/order dated 20.12.2024 involves the pure question of fact which has not been objected at all by the Respondent No. 1, the ld. District Judge has presumed the limitation of its own without any substantial proof. The issue is as to whether the court of law can pass any order/judgment which takes away the vested legal right of plaintiff/appellants against the settled law laid down by the Hon’ble Supreme Court and Hon’ble High Court. The Order impugned is unsustainable and on wrong assumption. V. The issue decided that no suit can be filed against migrant in the subject matter has not been objected or disputed by the respondent No. 1 who has usurped entire property of the plaintiffs, the other respondents 4 to 7 became owners by a sale deed on fraudulent power of attorney, therefore the suit of the plaintiffs is not covered by Section 8 of Jammu and Kashmir Migrant Act. This legal aspect of the matter has been ignored by the Court below and has decided the suit of the plaintiffs against the law and facts, the impugned judgment and decree has resulted into grave manifest error of law, as such the others impugned are liable to be quashed and set-aside. VI. The Appellants stated in the plaint that the cause of action accrued to the plaintiff on 17th May 2019. When the plaintiff received the notice of CPM No. 03 of 2019 and OWP of 212 of 2019 along with writ petition, while going through the averments of writ petition plaintiff got the knowledge of sale deed and possession of the defendants. As per the averments and the material in the plaint, the trial court’s order dated 20.12.2024 is perverse and is to be set at knot under the appropriate orders of this Hon’ble Court. VII. That the Court below have not considered the legal and factual aspect, which fact has been overlooked by the Court of first instances, therefore the order impugned is erroneous and against the established law in this regard. VIII. The Courts below have also erred in law by not recording adequate finding regarding the coordinal principles of law as such the impugned judgment dated 20.12.2024, was not justified and apt in the circumstances of the case and law laid by the Hon’ble Court, as such the orders impugned are liable to be quashed and set-aside. IX. That the Court below has conducted the proceedings in such a manner, which has resulted into loss of faith and confidence of the Appellant. 2. Briefly stated, the facts of the case are that the plaintiff–appellant herein had instituted a civil suit before the Trial Court seeking the following relief: i. It is prayed that for the reasons and facts the impugned judgment/order dated 20.12.2024, passed by Learned Additional District Judge Srinagar be quashed and set-aside under the appropriate orders of this Hon’ble Court. 3. On filing of the said suit, the petitioner-defendant, moved an application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the suit was barred under Section 8 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997. 4. Heard learned counsel for the parties. 5. Learned counsel for the appellant submits that the Trial Court has wrongly applied the provisions of Section 8 of the Act of 1997, in holding that the suit is barred under the said Section and erred in exercising powers under Order VII Rule 11 CPC, inasmuch as matter relates to pure inheritance and both parties are migrants. 6. It is further submitted that none of the actions of the authorities under the Act have been challenged, rather, it is the execution of certain sale deeds which have been challenged, and relief in the plaint sought. Consequently, Order VII Rule 11 is inapplicable. 7. Learned counsel for the respondents submits that since the sale deeds have been challenged, the suit necessarily involves a challenge to the power of the authority to permit execution of such sale deeds, and therefore, the suit is barred under Section 8 of the Act. 8. I have considered the arguments put forth by learned counsel for the parties. 9. Under Order VII Rule 11 CPC, a suit can be rejected when the suit interalia is barred by law. However, in the present case the relief claimed in the plaint on their perusal makes it clear that the provisions of Section 8, or any other provision of the Act of 1997 are not applicable thereto. The suit specifically challenges the sale deeds executed by Defendant No.1, a migrant, through his power of attorney in favour of Respondent Nos.4 to 7. 10. Section 4 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, pertains to the custody of immovable property, which reads as under: I. “Within 30 days from the commencement of this Act, the District Magistrate shall take over the possession of immovable property, belonging to Migrants, falling within the territorial jurisdiction and shall, on the expiry of said period of 30 days, be deemed to have the custody of such immovable property. II. The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property. III. Provided that possession of such property shall not be handed over to any one save with the express consent of the migrant in writing.” 11. Orders passed under Section 5 of the Act relate to eviction of unauthorized occupants, which are enforceable under Section 7. The present case does not involve any challenge to such eviction orders. Section 8, which pertains to the eviction of certain classes of persons, has no application to the execution of the sale deeds in question and Section 8 which deals with eviction of unauthorized occupants, is reproduced as under:- i. “If any person is in unauthorized occupation of any immovable property of a migrant, the District Magistrate may, either on his own motion or on an application made to him in this behalf, take steps and use such force as may be necessary to evict such person from the property. ii. The District Magistrate shall take necessary steps to restore possession of such property to the migrant owner, or, where restoration is not practicable, take action in accordance with the rules made under this Act.” 12. It is evident that the Trial Court has wrongly relied and applied Section 8 of the Act of 1997 to reject the plaint under Order VII, Rule 11 of the CPC. 13. The relief claimed is not within the powers of the authorities under the said Act. Consequently, the Trial Court’s order is unsustainable in law and is hereby declared null and void. 14. In view of the above, the appeal is allowed. Judgement/Order dated 20.12.2024 is set-aside. The matter is remanded back to the Trial Court for fresh consideration on merits. 15. The Trial Court shall take up the matter on 28th November 2025 and proceed in accordance with law. 16. Disposed of accordingly. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 03.11.2025 Shabroz