1 Serial No. 24 Reg. Cause List HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR RSA 2/2022 NAZIR AHMAD PARRA … Petitioner(s) Through: MR. Bhat Fayaz, Advocate with Ms. Nighat Amin, Advocate Vs. GHULAM RASOOL SHEIKH AND ORS. ...Respondent(s) Through: Mr. Aftab Ahmad, Advocate RSA 3/2022 Sheeraz Ahmad Sheikh … Petitioner(s) Through: Ms. Sami Shah, Advocate Vs. Nazir Ahmad Para & Ors. ...Respondent(s) Through: Mr. Aftab Ahmad, Advocate for 1 Mr. Bhat Fayaz, Adv. for 2 and 3 CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE O R D E R (ORAL) 21.08.2025 RSA NO. 2/2022 1. In the instant Civil Second Appeal, following substantial question of law have been framed by this Court. 2. Before adverting to the said question, a brief background of the case becomes imperative hereunder:- The plaintiff/appellant herein namely Nazir Ahmad Parra filed a suit for declaration, possession and injunction before Sub Judge, Budgam, against the defendants/respondents herein in 2 respect of land measuring 6 kanals 15 marlas under Khewat No. 34 situated in Village Gudsathoo, Budgam, alleging therein in the suit that the land in question came to be inherited by him from his father upon his death and an inheritance mutation thereof as well came to be attested on 18.10.2006 and out of the said land, his father have had during his lifetime leased out 4 kanals and 1 marla in favour of the defendant/respondent 3 herein for establishment of a brick kiln against payment of Rs.3100/- rent as yearly and in this regard have had executed a lease agreement as well on 26.04.2006 and that on account of the plaintiff’s ill health, the defendants/respondents 1 & 2 herein started causing interference into the possession and enjoyment of the rest of the land and few months before the institution of the suit took over the possession of one kanal of land on the basis of muscle power and also harvested the paddy crop and the said defendants/respondents 1 & 2 also did not allow him, the plaintiff, to receive rentals from defendant/ respondent 3 qua the land leased out to him and that even subsequently the said defendant/respondent 3 also refused to pay rentals to him qua the said leased land and that though, he, the plaintiff requested the defendants 1 & 2 to handover back the possession of one kanal of land forcibly taken over by them and also to give him the costs of the crop harvested by them without his consent, they, the defendants/ respondent 1 & 2 herein refused the same and that even the defendant/ 3 respondent 3 upon being requested by him for payment of rentals qua the leased land as also for handing over back the physical possession of the said leased land on account of his failure to pay the rentals, the said defendant/respondent 3 herein did not accede to the said requests of the plaintiff. 3. The plaintiff/appellant herein while maintaining the aforesaid suit, sought the following reliefs therein:- a) That the plaintiff is entitled to claim possession of one kanal of land out of the suit land from the defendants 1 & 2. With further declaration that the plaintiff is entitled to recover the cost of the paddy crops from the defendants 1 & 2 which has been harvested by them from this piece of land and that they are bound and liable to pay the same towards the plaintiff. b) That the plaintiff is also entitled to take over the possession of four kanals of leased land and also to recover its rents as per terms and conditions of the lease agreement right from the year 2006 with interest at Bank rates till final payment thereof. c) A decree of permanent and mandatory injunction commanding the defendants permanently from causing any sort of interference into the entire suit land in any manner whatsoever in nature. d) Any other order or direction which this Court may deem fit and proper may also be passed in favour of the plaintiff against the defendants with costs. 4. Upon entering appearance before the trial court, the defendants in the suit and respondents herein filed their respective written statements to the suit. 5. The defendants 1 & 2/ respondents 1 & 2 herein in the said written statement inter alia averred that the plaintiff/appellant herein has misrepresented and concealed true and correct facts in the suit as the land covered under Khewat No. 34 consists of 27 kanals and 3 marlas and that out of the land owned by the father of the plaintiff/appellant 4 herein, 4 kanals and 4 marlas have had been gifted away by the said father of the plaintiff/ appellant herein in favour of defendant 1/respondent 1 herein comprising of one marla under Survey No.17, 2 kanals and 12 marlas under Survey No. 41 min, 1 kanal, 5 marlas under Survey No. 54 min and 6 marlas under Survey No. 59 min, pursuant to a gift deed executed on 16.07.2001 which gift deed, however, could not be got registered despite the fact that the requirements of a valid gift have had been fulfilled. It also came to be stated in the said written statement that the mutation No. 991 in fact have had been got attested by the plaintiff/appellant herein during the lifetime of his father on 18.10.2016, in that, the father of the plaintiff/appellant herein had died on 27.11.2006, while stating further that the lease deed qua the land claimed to have been leased out by the father of the plaintiff/appellant herein in favour of respondent 3 herein stands manipulated by the plaintiff/appellant herein as the said lease deed was never registered though the same was compulsorily to be registered and that, in fact, the answering defendants/respondents 1 & 2 herein are receiving the rentals of the said land from the defendant/respondent 3 and the plaintiff/appellant has no right to receive the same from respondent-defendant 3. It also came to be stated in the said written statement by the defendants 1 & 2/respondents 1 & 2 herein that in an earlier suit filed between the parties, the plaintiff/appellant herein 5 himself had admitted that his father had admitted that he had gifted the land in question in favour of the defendants/respondents 1 & 2 herein. 6. In the written statement filed by the defendant/respondent 3 to the suit, it came to be stated that the father of the plaintiff/ appellant herein leased out 4 kanals and 1 marla of land on annual rental of Rs.3100/- per kanal for the establishment of brick kiln and that besides the said land, the answering defendant also got another land measuring 8 kanals 12 marls for the same purpose on the basis of rent and that the answering defendant paid an amount of Rs.1,96,375/- by way of cheque as rentals to the father of the plaintiff/appellant herein and his brother, i.e., defendant 1/respondent 1 herein in the year 2006 and that the plaintiff/appellant herein as his legal heir became entitled to receive rentals from the answering defendant and that in paying the said rentals, the defendants 1 & 2/respondents 1 & 2 herein made hindrances and even threatened the answering defendant and that the plaintiff/ appellant is not entitled to seek recovery of possession of land from the answering defendant as the answering defendant has invested huge amount of money for establishment of the brick kiln. 7. 7. The trial court on the basis of the aforesaid pleadings of the parties framed the following issues: i. “Whether the plaintiff is owner in possession of land mentioned in para no.1 of the suit? OPP 6 ii. Whether the plaintiff’s father has given one lease the land mentioned in para no. 2 of the plaint to defendant No. 3 to set up his brick kiln on the rent basis mentioned in para no. 2 of the plain”? OPP iii. Whether the defendants 1 & 2 want to dispossess the plaintiff from the suit land ? OPP iv. Whether the defendants 1 & 2 have forcibly taken the harvesting crop (paddy) from one kanal of land out of the suit property without any right or reason? OPP v. Whether the defendants 1 & 2 are causing obstruction in getting the rents from the leased property which has been given to the defendant No. 3? OPP vi. Whether the plaintiff is entitled to take the possession of one kanal of land which has been forcibly taken by the defendants 1 & 2? OPP vii. Whether the defendant No. 3 has violated the terms and conditions of the lease agreement and is liable to be declared null and void? OPP viii. Whether the suit is not maintainable in view of the preliminary objections taken in the written statement? OPD ix. Whether the father of the plaintiff has gifted out 4 kanal and 4 marla of land, the description of which give in para no. 1 of the written statement in favour of the defendant No. 2?OPD x. Whether the father of the plaintiff has executed gift deed on 16th July 2001 in favour of the defendant No. 2 and from the date of the execution, the defendant No. 2 is enjoying the possession of the suit property ?OPD xi. Whether the plaintiff has manipulated the lease deed and cannot claim on the ground of un-registration? OPD xii. Whether the defendants 1 & 2 are receiving the rent of the leased property from the defendant No.3? OPD xiii. Relief? 8. While the plaintiff/appellant herein examined three witnesses in support of his case set up in the suit inasmuch as to discharge the onus qua the issues put on him, appeared through an attorney as his witness and also examined one Ghulam Mohd. Sheikh. 9. On behalf of defendants 1 & 2/respondents 1 & 2 herein three witnesses came to be examined and on behalf of defendant/ respondent 3 none appeared as a witness. 7 10. The trial court upon conclusion of the trial of the case in terms of judgment and decree dated 14.09.2017 decreed the suit in favour of the plaintiff, however, passed a decree of injunction alone without passing any declaratory decree or a decree of possession in favour of the plaintiff sought by him and restrained the defendants 1 & 2/respondents 1 & 2 herein permanently from causing any sort of interference into the suit land measuring 6 kanals 15 marlas situated at Gudsathoo, Budgam falling under Khewat No. 34 including the rentals, profits and usufructs arising out of the said suit land. 11. Aggrieved of the said judgment and decree of the trial court, the defendants/respondents 1 & 2 herein preferred an appeal on 21.10.2017, before the Court of Sub Judge, Budgam, which appeal came to be decided by the appellate court on 24.01.2022 and, the appellate court reversed the judgment and decree of the trial court and while setting aside the said judgment and decree held the defendants/respondents 1 & 2 herein to have proved the existence of the gift deed dated 16.07.2001 in their favour and declared therein as such the said defendants to be owner in possession of land measuring 4 kanals and 4 marlas covered under said gift deed. 12. Dissatisfied with the said judgment and decree of the appellate court, the plaintiff appellant herein has preferred the instant Civil 2nd Appeal, wherein the aforesaid substantial questions of law has been framed. 8 Heard counsel for the parties and perused the record. 13. In the first instance having regard to the issues involved in the instant appeals, it would be appropriate to refer here to Order 41 Rule 33 CPC, being relevant herein, which is an enabling provision whereby the appellate court has power to pass any decree or make any order, if it thinks fit not only between the appellant and the respondent but also between one respondent and another respondent, to do complete justice between the parties and in exercise of such power, it is laid down by law that no hard and fast rule can be said to have been laid down as to the circumstances in which the appellate court could exercise such a power, in that, each case would depend upon its own facts and circumstances. 14. 14. Keeping in mind the aforesaid provision of law and coming back to the cases in hand, the appellate court while reversing the judgment and decree of the trial court earned by the plaintiff/appellant herein qua the subject matter land consisting of 6 kanals and 15 marlas, has not only reversed the said judgment and decree but has in furtherance thereof passed a decree in favour of defendant 2/respondent 2 herein qua land measuring 4 kanals and 4 marlas out of the suit land as the said defendant/respondent 2 claimed the said land to have been gifted in his favour by the father of the plaintiff/appellant herein pursuant to an express gift deed and though the appellate court have had been not oblivious to the fact that there has been no original gift deed on record placed 9 by the said defendant 2/respondent 2 herein, yet it proceeded to uphold the sanctity of the said duplicate gift deed relied upon by the defendant/respondent 2 herein in the written statement on the premise that notwithstanding the said express gift deed otherwise also the essentials of gift qua the land in question stand fulfilled between the father of the plaintiff/appellant herein and the defendant/respondent 2 herein, overlooking the fact that the defendant/respondent 2 herein have had specifically relied upon the said written gift deed and had also placed the same on record inasmuch as being conscience of the said fact had attempted to prove the said deed by producing the scribe of the deed while filing an application before the appellate court which the appellate court interestingly did not allow the said defendant/respondent 3 herein and instead proceeded to confirm the said gift on the basis of some statement claimed to have made by the father of the plaintiff/appellant in an earlier suit alleging to have been confirmed the making of the gift that too without that statement even having been placed on record by defendant 2/respondent 2 herein before the appellate court in particular. Thus, under these circumstances it cannot, but be said to be that the appellate court grossly erred and wrongly exercised the discretion vested unto it under Order 41 Rule 33 CPC while passing the impugned judgment and decree. 10 15. In view of the above, the first and second substantial questions of law thus shall stand accordingly decided in favour of the plaintiff/appellant herein and against the defendant 2/respondent 2 herein. 16. Insofar as aforesaid substantial question No. 3 is concerned, the said question seemingly does not pertain to the issues involved in the instant appeals, in that, the question of oral gift qua the land claimed by defendants 1 & 2/ respondents 1 & 2 herein was never an issue either before the trial court or before the appellate court, instead the defendant/respondent 2 have had pressed into service written gift deed dated 26.01.2001 and pursuant thereto have had claimed title over 4 kanals and 4 marlas of land thereof, while contending that the said land had been in terms of the said gift deed donated by the father of the plaintiff/appellant herein in his favour. 17. Insofar as aforesaid substantial question No. 4 is concerned, the same as well is not required to be adverted to, in that, the said question pertains to the rejection of prayer made by defendant/respondent 2 herein for adducing additional evidence before the appellate court in order to prove the deed of gift and the said defendant/respondent 2 has not impugned the judgment of the appellant court. 18. Having regard to the aforesaid position obtaining in the matter, it cannot safely be said that the appellate court has grossly erred while passing the impugned judgment and decree and that in 11 essence the matter has not received appropriate consideration, thus, necessitating the remanding of the matter back to the appellate court for its reconsideration. 19. Accordingly, the instant appeal succeeds and the impugned judgment and decree passed by the appellate court is set aside with a direction to the appellate court to reconsider the appeal afresh in accordance with law. 20. It is provided that till the appeal remanded back to the appellate court is considered and decided by the appellate court as directed above, parties shall maintain status quo with respect to the position and possession of the subject matter land. 21. It is made clear that the appellate court shall decide the appeal afresh after hearing the parties and after taking note of the observations made hereinabove, as expeditiously as possible, preferably within a period of six months. The parties shall appear before the appellate court on 13.09.2025. Disposed of. CCP(S) 284/2022 In view of the disposal of the appeal as above, it is deemed appropriate and in the interest of justice to recall the contempt notice and close the contempt proceedings. RSA No. 3/2022 1. In the instant Civil 2nd Appeal, the appellant herein is respondent 3 in Civil 2nd Appeal 2/2022 supra and defendant 3 before the trial court as well as the appellate 12 court in regard to whom the plaintiff in the suit filed before the trial court had claimed that land measuring 4 kanals and 1 marlas had been leased out by his father in the year 2006 in his favour for establishment of a brick kiln against the payment of annual rentals of Rs.3100/- and that the said defendant/ appellant herein have had stopped paying rentals to him after the plaintiff stepped into the shoes of his father upon his death and inherited the entire land left behind by his father including the land leased out to the defendant/ appellant herein and upon repeated demands being made for the payment of said rentals, the same were refused, thus, disentitling the defendant/appellant herein to remain in possession of the said land and the plaintiff thus had sought a decree of recovery of possession of the said land along with arrears of rentals from the defendant/appellant herein and though the trial court did not pass any decree in that regard against the said defendant/appellant herein in the suit in favour of the plaintiff, the appellate court yet in the appeal filed against the judgment and decree of the trial court by the defendant 1 & 2 before the trial court and appellants before the appellate court, earned the judgment and decree from the appellant court qua the land measuring 4 kanals and 4 marlas which the defendant 2 in the suit claimed to have obtained by way of gift deed from the father of the plaintiff. 13 2. The appellant herein being defendant 3 before the trial court as well as the first appellate court is aggrieved of the judgment and decree passed by the appellate court in the instant appeal on the ground that, he, the appellant herein was never heard by the court while deciding the appeal filed by the appellants being defendants 1 & 2 before the trial court, as according to the appellant herein both the contesting parties being plaintiff as also defendant 1 & 2 before the trial court, appellants before the first appellate court and respondents 1 & 2 had lodged a claim qua the said land leased out in his favour, as such, the first appellate court was bound to have provided an opportunity of hearing to the appellant herein while deciding he first appeal. 3. This Court while considering the instant appeal on 25.02.2025, has framed the following questions to be the substantial questions of law:- i. “Whether the suit land measuring 04 kanals & 01 marlas is leased out to the appellant for running brick kiln? ii. Whether the first appellate court was within powers to reject the plea raised by the party before the same court for adducing additional evidence and then finally passing the judgment based on the rejected additional evidence? iii. Whether the un-registered gift deed can be treated as oral gift? If so, whether the gift would be valid without the actual delivery of possession? iv. Whether the appellate court is within the powers to grant the relief to one party which was not sought and totally ignored the stand taken by the other part in the suit? 4. Having regard to the decision rendered herein in the RSA No. 2/2022 supra and the questions determined therein by this Court, the instant questions being interconnected with 14 the said questions, as such, need not to be again adverted to, and, as such, the decision rendered in the said RSA 2/2022 shall govern the present appeal as well. 5. Disposed of. A copy of this judgment and order shall be placed on the record file of each of the appeals. The Registry is directed to remit the record to the appellate court alongwith a copy of this judgment. (JAVED IQBAL WANI) JUDGE SRINAGAR: 21.08.2025 “S.Nuzhat” Whether the order is speaking Yes/No Whether the order is reporting Yes/No