HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case No.:- WP(C) No. 840/2024 CM Nos. 2021/2024 & 4602/2025 1. Mohamda Magrey, age 80 years S/o Sultana Magrey R/o Ward No. 9, Mohalla Kamsar Tehsil Haveli District Poonch. 2. Saleema Begum, Age 60 years W/o Mohamda Magrey, R/o Ward No. 9, Mohalla Kamsar Tehsil Haveli District Poonch. …..Petitioner(s) Through: Mr. R.D. Singh Bandral, Advocate. Vs 1. Union Territory of Jammu and Kashmir Through Deputy Commissioner, District Poonch. 2. Tehsildar (Haveli), Tehsil Haveli District Poonch. 3. Tazeem Akhter W/o Sher Mohd. Khan R/o Ward No. 9, Mohalla Kamsar Tehsil Haveli District Poonch. 4. Qameed Hussain S/o Bhagga R/o Ward No. 9 Mohalla Kamsar Tehsil Haveli, District Poonch. 5. Abdul Hamid S/o Mohd. Din R/o Ward No. 9, Mohalla Kamsar Tehsil Haveli, District Poonch. .…. Respondent(s) Through: Ms. Chetna Manhas, Advocate vice Mrs. Monika Kohli, Sr, AAG Mr. Shakoor A. Malik, Advocate Ms. Shamima Jan, Advocate. 2 WP(C) No. 840/2024 Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 06.08.2025 1. The petitioners, through the medium of the present petition, have challenged Order No. DCP/SQ/2023/107-108 dated 27.04.2023 passed by respondent No. 1 whereby directions have been issued for restoration of pathway of respondents No. 3 to 5 located in khasra Nos. 2099 and 2101 at Mohalla Kamsar, Shehar-e-Khas, Tehsil Haveli and District Poonch by removing obstacles. A further direction, commanding respondents No. 1 and 2 to protect the proprietary land of petitioner No. 2 measuring 1 kanal and 12.5 marlas falling in khasra No. 2099 situated at Mohalla Kamsar, tehsil Haveli from any kind of damage at the hands of respondents No. 3 to 5, has also been sought. 2. As per the case of the petitioners, petitioner No. 1 was owner in possession of land measuring 2 kanals and 9 marlas falling under khasra No. 2099 situated at Mohalla Kamsar Tehsil Haveli and District Poonch and out of this, he sold land measuring 16.5 marlas of land to respondents No. 3 to 5 along with all easementary rights . 3. It has been submitted that the petitioner No. 1 had sold 8 marlas of land out of the aforesaid land to respondent No. 3 3 WP(C) No. 840/2024 in the year 2011 whereas, he sold 5 marlas of land to respondent No. 4 in the year 2006 whereafter he sold 3.5 marlas of land to the father of private respondent No. 5 in the year 2009. Whole of the land is falling in khasra No. 2099. 4. It has been further submitted that petitioner No. 1 has also provided passage to private respondents towards their home, however, they are unnecessarily harassing petitioner No. 1 to provide a motorable path towards their plot, which is being objected to by petitioner No. 1. 5. It has been submitted that a suit came to be filed by respondent No. 3 against the petitioners before the court of learned Sub Judge, Poonch wherein a compromise was arrived at between the parties on the basis of which the petitioners agreed to provide a pathway to private respondents. 6. It has been further submitted that balance land measuring 1 kanal and 12.5 marlas falling under khasra No. 2099 was gifted by petitioner No. 1 to petitioner No. 2 as a result of which petitioner No. 2 is presently the owner in possession of land measuring 1 kanal and 12.5 marlas of land under khasra No. 2099. 4 WP(C) No. 840/2024 7. According to petitioners, the daughter-in-law of petitioner No. 1 has purchased land measuring 4.5 marlas falling in khasra No. 2101 vide sale deed dated 22.11.2022 and private respondents are pressurizing the petitioners to provide them passage through the said land. 8. According to petitioners, respondent No. 1 has, without any jurisdiction, assumed the powers of civil court in respect of a dispute, which is purely of civil nature and passed the impugned order dated 27.04.2023 whereby direction has been issued for restoration of the pathway. 9. The petitioners have challenged the impugned order passed by respondent No. 1-Deputy Commissioner, Poonch on the grounds that the same has been passed without jurisdiction and in violation of the principles of natural justice. 10. It has been contended that land under khasra No. 2101 is a proprietary land of daughter-in-law of petitioner No. 1 as such, respondent No. 1 could not have permitted access to the private respondents through the said land. 11. The official respondents, in their reply to the writ petition, have submitted that the impugned order dated 27.04.2023 has been passed by respondent No. 1-Deputy 5 WP(C) No. 840/2024 Commissioner, Poonch after following due process of law. It has been submitted that before passing the said order, an enquiry was conducted and it was found that the petitioner No. 1, while entering into a private agreement with the private respondents, had promised them to provide pathway. 12. It has been further submitted that the private respondents have no access from their houses to the road/market and they have to reach there after passing through the fields of different land owners, who have objected to providing of access to the private respondents. It has been submitted that the petitioners have misrepresented the material facts. 13. It has been further submitted that the petitioners blocked the pathway of respondents No. 3 to 5 leading to their houses from the market which constrained them to approach the Deputy Commissioner, Poonch, who visited the spot and found that the petitioners have blocked the pathway that was being used by private respondents by erecting a gate over there. Accordingly, the Tehsildar, Haveli was directed to restore the pathway of private respondents by removing the obstacles. This was done after holding a proper enquiry. 6 WP(C) No. 840/2024 14. Respondents No. 3, 4 and 5 have also filed reply to the writ petition in which it has been submitted that a civil suit has already been filed by petitioner No. 2 seeking Permanent Prohibitory Injunction against private respondents in respect of land measuring 1 kanal and 11.5 marlas of land falling under khasra No. 2099 situated at Ward No. 9, Mohalla Kamsar Tehsil Haveli District Poonch before the court of learned Sub Judge, Poonch in which an interim direction came to be passed on 13.04.2023 and ultimately on 28.03.2024, an application of petitioner No. 2-plaintiff under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure came to be disposed of by the said court and defendants/respondents No. 3 to 5 were restrained from interfering in the suit land with the condition that the said order shall not come in the way of Tehsildar, Haveli in implementing the order dated 27.04.2023 issued by the Deputy Commissioner, Poonch. 15. It has been submitted that order dated 28.03.2024 passed by the learned Sub Judge, Poonch was assailed by the petitioner No. 2 by way of an appeal before the learned Principal District Judge, Poonch and the said appeal was allowed by the appellate court in terms of a judgment dated 13.05.2024. Vide the said judgment, the interim injunction 7 WP(C) No. 840/2024 granted against the private respondents was discharged. However, direction regarding implementation of order dated 27.04.2023 passed by the Deputy Commissioner, Poonch through Tehsildar was upheld. 16. Respondent Nos. 3 to 5 have further submitted that petitioner No. 1 through his daughter-in-law, vide another suit for Permanent Prohibitory Injunction against the private respondents, had got an ex parte interim direction on 22.07.2024. It has been further submitted that pathway falling under survey No. 2101 is reflected in jamabandi for the year 2017-18. It has been contended that petitioners, by suppressing all these material facts, have approached this Court with uncleaned hands. 17. I have learned counsel for the parties and perused the record of the case. 18. The center of controversy, in this petition, is the pathway leading to the property of private respondents, which admittedly has been purchased by them from petitioner No.1. A perusal of the documents placed on record by the petitioners would reveal that private respondents had filed a civil suit against the petitioners before the civil court seeking declaration that they have easementary right over 4 feet 8 WP(C) No. 840/2024 wide pathway leading to their property comprised in khasra No. 2099 with an injunction that the petitioners herein should not make any interference in use of said pathway. 19. It appears that a compromise was arrived at between the parties in the said suit whereby the petitioners had undertaken that the said 4 feet wide pathway shall be used by the parties jointly. On the basis of this undertaking of the petitioners, the suit was disposed of as having been compromised. Thus, there is no dispute to the fact that petitioners had allowed the right of access through their land to the private respondents to whom they had sold a portion of their land. 20. The record further reveals that petitioner No. 2 has already filed a suit for injunction against private respondents in which initially learned Sub Judge, Poonch passed an interim injunction in favour of petitioner No. 2 against private respondents. However, the said interim injunction came to be discharged by learned Principal District Judge, Poonch while deciding appeal against the aforesaid order passed by learned Sub Judge, Poonch. It is not case of petitioners that order of the learned Principal District Judge, Poonch has been assailed by them in any superior forum. Thus, the 9 WP(C) No. 840/2024 petitioners while availing the remedy of civil suit for restraining private respondents from using the pathway through their land, have not succeeded in establishing a prima facie case in their favour, which in other words, means that the right of the private respondents to use the pathway through the land of the petitioners has prima-facie found favour with the civil court. 21. It seems that private respondents approached the Deputy Commissioner, Poonch seeking restoration of the pathway through the land of petitioners as obstructions were being created by the petitioners in the use of the said pathway of the private respondents. In the said proceedings, the Deputy Commissioner, Poonch, after holding an enquiry, came to a conclusion that petitioners cannot create any obstacle in the use of pathway in question by private respondents, which resulted in passing of impugned order dated 27.04.2023. A perusal of record would show that said order has been passed by the Deputy Commissioner, Poonch after holding a proper enquiry. 22. Sub-section (2-A) of section 133 of the Jammu and Kashmir Land Revenue Act vests power with the Revenue Officer to direct free exercise of right of user and removal of 10 WP(C) No. 840/2024 obstruction on a common land where the exercise of such right is found to have been denied or obstructed. This power has to be exercised by the Revenue Officer after holding of an enquiry. 23. In the instant case, respondent No. 2 has held an enquiry and thereafter passed the impugned order. The record suggests that respondent No. 2 has got the matter enquired into by Tehsildar, Haveli before passing the impugned order. Thus, it cannot be stated that the impugned order has been passed by respondent No. 1 in violation of the provisions contained in section 133 of the Jammu and Kashmir Land Revenue Act. Even otherwise as already stated, the petitioners have failed to establish a prima facie case in their favour before the civil court, which has resulted in dismissal of their application for grant of interim injunction against private respondents. Thus, even the civil court has prima- facie vindicated the stand of the private respondents. The petitioners cannot be allowed to achieve by way of present writ petition what they could not achieve in the civil suit. The present petition is nothing but an attempt on the part of the petitioners to overcome the failure suffered by them before the civil court. 11 WP(C) No. 840/2024 24. For the foregoing reasons, I do not find any ground to interfere in the impugned order passed by respondent No. 1. The petition lacks merit and is, accordingly dismissed. (SANJAY DHAR) JUDGE JAMMU 06.08.2025 Naresh/Secy. Whether order is speaking: Yes Whether order is reportable: No Naresh Kumar 2025.08.13 18:08 I attest to the accuracy and integrity of this document