HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case No.:- WP(C) No. 2526/2022 Inhabitants of village Ramgarh (Pallan), Tehsil Billawar, District Kathua …..Petitioner(s) Through: Mr. S.K. Anand, Advocate. Vs UT of Jammu and Kashmir & Ors .…. Respondent(s) Through: Mrs. Monika Kohli, Sr. AAG for R-1 to 6. None for R-7 and 8. Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 10.09.2025 1. The present petition has been filed by the petitioner in a representative capacity seeking a direction upon the official respondents No. 1 to 6 to evict the private respondents No. 7 and 8 from the common pathway comprised in khasra Nos. 119 and 139 at village Pallan, tehsil Billawer, district Kathua. 2. According to the petitioner, there is Bandobasti Rasta (common pathway) existing in khasra Nos. 119 and 139 of village Pallan, tehsil Billawer district Kathua. It has been alleged that the private respondents No. 7 and 8 have, in an illegal manner, blocked the common pathway by raising construction of shops, bathrooms, store etc on the same thereby causing hindrance in the smooth user of the said 2 WP(C) No. 2526/2022 common pathway by the residents of the area. It has been submitted that a complaint was lodged by the petitioner with the official respondents against the private respondents No. 7 and 8 and a spot inspection was conducted whereafter it was found that the private respondents No. 7 and 8 have encroached upon the common pathway by raising construction thereon. It has been further submitted that on 27.11.2021, an order came to be issued by respondent No. 4 directing respondent No. 5 to evict the private respondents No. 7 and 8 from the said common pathway but no action has been taken by respondent No. 5 3. It has been submitted that respondent No. 5, vide his communication No. 78/NTP dated 22.08.2022, requested the police for help for evicting the private respondents No. 7 and 8 from the common pathway but despite strenuous efforts made by the petitioner, no concrete action is being taken by the official respondents, which compelled the petitioner to make a representation before Lt. Governor, UT of Jammu and Kashmir. It has been submitted that no action is being taken in the matter as a result of which the petitioner has been forced to approach this Court. 4. The Official respondents have filed their reply to the writ petition in which it has been submitted that as per the 3 WP(C) No. 2526/2022 revenue record, khasra Nos. 119 and 139 situated at village Ramgarh, tehsil Billawer is recorded as “Shamlat Deh Nakableh Takseem Shara Aam” and during demarcation of the said khasra numbers, it was established that the said land has been encroached by the private respondents No. 7 and 8 by constructing and raising residential house and allied structure. It has been further submitted that the residential house is about three decades old and has been constructed by the parents of the private respondents No. 7 and 8 on common land and there are about 4-5 families residing on the backside of the residential house of the private respondents constructed on common pathway. It has been further submitted that in place of the recorded pathway, which has been blocked by the private respondents No. 7 and 8, these 4-5 families have been using the adjoining land belonging to the private respondents No. 7 and 8 to reach their homes. 5. Pursuant to interim order passed by this Court on 25.11.2022, the Tehsildar concerned has also filed status report in which it has been submitted that the matter is under process and shall be disposed of as per rules in due course. It has been further submitted that as per current status of the spot, the alleged encroachment has not been removed. It has also been submitted that the private respondent No. 8 has provided ownership land in exchange for the pathway. 4 WP(C) No. 2526/2022 6. Although nobody has appeared on behalf of the private respondents No. 7 and 8 today, yet objections on their behalf are on record. In their objections, the private respondents No. 7 and 8 have submitted that Sh. Amar Nath, their predecessor-in-interest was co-owner/co-sharer of the land under khasra No. 1169/379 (old) measuring 8 kanals 11 marlas situated at village Pallan, tehsil Billawar, district Kathua and during his life time, he had constructed a residential house on the said land in the year 1980 and a shop in the year 1990. It has been submitted that Sh. Amar Nath expired in the year 2010 and now the estate has devolved upon the private respondents No. 7 and 8. 7. It has been submitted that after the settlement, khasra No. 1169/379 (old) of old revenue village Pallan of tehsil Billawar was bifurcated into ten new khasra numbers, out of which, khasra Nos. 131, 132, 133, 134, 135, 136, 137 & 138 fall in revenue village Ramgarh, whereas, khasra Nos. 712 & 713 fall in revenue village Pallan. It has been submitted that the land along with residential house as well as shop constructed over portion of khasra No. 1169/379 (Old) of old revenue village Pallan of tehsil Billawar now falls in khasra No. 137 measuring 1 kanal 12 marlas and khasra No. 138 measuring 5 marlas in new revenue village Ramgarh, tehsil Billawar district Kathua. 5 WP(C) No. 2526/2022 8. According to the private respondents No. 7 and 8, khasra No. 1144/350 (old) of old revenue village Pallan measuring 9 kanal 6 marlas has been bifurcated into 12 new khasra Nos. i.e., 682, 683, 685, 686, 687, 704, 706, 707, 708, 709 & 710 falling in new revenue village Pallan and khasra No. 140 falling in new revenue village Ramgarh but while undertaking bifurcation, the total land in the aforesaid khasra numbers has been shown as 12 kanals and 7 marlas instead of 9 kanals 6 marlas. This has been done by encroaching upon common pathway measuring 6 marlas falling in khasra No. 139 (new) as well as some portion of khasra No. 119 (new) adjoining the land of the private respondents No. 7 and 8. 9. The private respondents No. 7 and 8 have further submitted that it is petitioner-Kaku Ram who, along with Patwari concerned, is responsible for committing the aforesaid mischievous acts and for obtaining a fraudulent demarcation report from the Patwari. It has been further submitted that a civil suit has been filed by the petitioner-Kaku Ram against the private respondents No. 7 and 8, which has been dismissed on 21.08.2020 and against the said dismissal order, an appeal is pending before the District Judge, Kathua. It has been alleged by private respondents No. 7 and 8 that petitioner-Kaku Ram has fraudulently tampered with the record and increased the area of land in khasra No. 1144/350 6 WP(C) No. 2526/2022 (old) from 9 kanals 6 marlas to 12 kanals 7 marlas thereby encroaching upon the adjoining khasra No. 139 (new) and 119 (new) in new revenue village Ramgarh, tehsil Billawer district Kathua. According to the private respondents No. 7 and 8, the official respondents in their absence have demarcated khasra Nos. 140, 139 and 119 by decreasing the land of the private respondents No. 7 and 8 thereby showing the land including the residential house and a shop in khasra Nos. 139 and 119. 10. I have heard learned counsel for the parties and perused record of the case. 11. As per case of the petitioner, the land falling under khasra Nos. 119 and 139 of revenue village Ramgarh is common pathway recorded as ‘gair mumkin rasta‟ in the khasra girdawari. It is the case of the petitioner that on the said common pathway, the private respondents No. 7 and 8 have constructed residential house and shop thereby blocking access to the houses of inhabitants of village Ramgarh (Pallan). The khasra girdawari placed on record by the petitioner also confirms the fact that land measuring 4 kanals 17 marlas in khasra No. 119 and land measuring 6 marlas in khasra No. 139 is recorded as „gair mumkin rasta‟ (common pathway). The official respondents in their reply to the writ petition have also re-affirmed this fact. It has also been 7 WP(C) No. 2526/2022 confirmed by the official respondents in their reply that respondents No. 7 and 8 have constructed their house and shop on the said common pathway as a result of which access to the houses of 4-5 families has been blocked and the inhabitants of these houses are now using adjoining pathway from the proprietary land of the private respondents No. 7 and 8. As per the status report filed by the Tehsildar, Billawar, private respondent No. 8 has volunteered to convert part of his proprietary land as pathway. 12. The stand of the private respondents in their reply is somewhat different. They claim that there has been some error in undertaking khasra parmaish at the time of settlement as a result whereof the land in khasra Nos. 1144/350 (old) measuring 9 kanals 6 marlas, which has been bifurcated into 12 new khasra numbers, has been shown to be having an area of 12 kanals 7 marlas thereby increasing its area. It has been claimed that while increasing the area of land under khasra Nos. 1144/350 (old) at the time of settlement, the land shown in khasra Nos. 139 and 119 min has been decreased and it has been made out as if the petitioners have encroached upon the common pathway existing in khasra Nos. 139 and 119. It is being claimed by the private respondents No. 7 and 8 that demarcation has been conducted in their absence. 8 WP(C) No. 2526/2022 13. From the pleadings and the material on record, one thing becomes clear that land under khasra Nos. 119 and 139 is recorded as common pathway. As per the provisions contained in J&K Common Land (Regulations) Act, 1956 particularly Section 4 of the said Act, a duty is cast upon the official respondents to remove encroachment on common land. The Supreme Court in the case of “Jagpal Singh & Ors Vs. State of Punjab & Ors”, AIR 2011 SC 1123 has also extended similar directions upon all the States and Union Territories. Thus, the official respondents are duty bound to remove encroachment from the common pathway existing in the aforesaid two khasra numbers. The only question that is required to be determined is as to whether the house and shop constructed by the private respondents No. 7 and 8 is situated on the common land falling under khasra Nos. 139 and 119. If that is so, there is no option left with the official respondents but to remove the said encroachment. 14. While the official respondents claim that the house and the shop constructed by the private respondents No. 7 and 8 is situated on the common land, the private respondents claim that demarcation conducted by the official respondents was behind their back. To resolve this controversy, it would be necessary to undertake fresh demarcation of the land in 9 WP(C) No. 2526/2022 question in the presence of the petitioner as well as the private respondents No. 7 and 8. 15. Accordingly, the writ petition is disposed of with the following directions: (i) Respondents No. 3 to 6 shall conduct fresh demarcation of the land falling under khasra Nos. 139 and 119, which has been recorded as ‘gair mumkin rasta’. Demarcation of the land belonging to the petitioner shall also be conducted. (ii) The aforesaid exercise shall be undertaken by the aforesaid respondents in the presence of the petitioner and the private respondents No. 7 and 8. (iii) On the basis of the demarcation report, if it is found that the private respondents No. 7 and 8 have encroached upon the common land, the official respondents shall proceed against the said respondents in accordance with law so as to remove the encroachments. (iv) The entire exercise shall be completed by the official respondents within a period of six months from the date a copy of this order is made available to the said respondents by the petitioner. (SANJAY DHAR) JUDGE JAMMU 10.09.2025 Naresh/Secy. Whether order is speaking: Yes Whether order is reportable: No Naresh Kumar 2025.09.17 13:47 I attest to the accuracy and integrity of this document