Decided on December 01,2006

Sushil Kour Appellant
S Charan Singh Respondents


- (1.) ONE Sain Dass, the predecessor -in -interest of the respondents filed a suit for possession of land measuring 18 kanals 2 marlas comprised in Survey No. 150/7of Khewat No.38/135 situated at Shankerpora Tehsil Chadoora District Budgam, which, ignoring his right of pre -emption, had been sold by one Om Prakash to Mohd. Shafi. Suit for pre -emption filed in the Court of Additional Munsiff, Srinagar to vindicate his right of pre -emption was decreed on 29th of Magh 2000 Bikrimi. Possession of this land was delivered to Sain Das by Collector, Srinagar (Kashmir) in execution of the decree on 1st of Poh 2000 Bikrimi. Another chunk of land measuring 16 kanals falling under Survey No. 149/7, adjacent to this land had been purchased by the defendant. While the matter was pending consideration in the Revenue Courts in regard to disputed entries regarding the land, Gurpurab Singh, the husband of the petitioners, took forcible possession of the land giving rise to the filing of the suit which was contested by Gurpurab Singh setting up the defence that although the pre -emption decree had been obtained by the plaintiff, Sain Das, he in fact was the Ëœbenamidarâ„¢ of the said land because he had paid consideration amount and spent money on litigation. Proceeding on the said premise, Gurpurab Singh claimed that he had been in continuous possession of the suit land and was its real owner. The suit land had been converted into an Orchard and he had been enjoying usufruct thereof.
(2.) GURPURAB Singh died during the pendency of the suit. His legal representatives were brought on record. The suit, after a full dressed trial, was decreed in favour of Sain Dass, plaintiff on 25.4.1980.
(3.) THE petitioners, appealed against the decree before District Judge, Budgam. Their appeal was registered as Appeal No. 28/1981. The 1st appellate court, vide its order dated 31st of March 1983 framed two additional issues, and remitting the matter to the trial court, directed it to return its finding on these issues to the appellate court within a period of three months. The appeal was directed to be taken up for hearing after the receipt of findings from the trial court. This order of the First Appellate Court was questioned by Sain Dass in this Court in civil revision No. 62/1983. Sain Dass, died during the pendency of this civil revision which was consequently dismissed in default of appearance on 16.10.2001. During the pendency of revision petition in this Court, the trial Court passed an order on 16.11.1985 dismissing the suit in default of appearance.;

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