Jammu & Kashmir High Court – Srinagar Bench
Sajad Ahmad Sheikh And Ors vs The Assistant Collector 1St Class … on 28 April, 2025
S. No. 232
Suppl. List
HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) No. 943/2025
CM No. 2489/2025
Sajad Ahmad Sheikh and Ors. ...Petitioner(s)
Through: Mr. Aswad R. Attar, Advocate
Vs.
The Assistant Collector 1st Class (Tehsildar), ...Respondent(s)
Anantnag and Ors.
Through:
CORAM:
HON'BLE MR JUSTICE WASIM SADIQ NARGAL, JUDGE
ORDER
28.04.2025
01. The petitioners, through the medium of instant petition which has been
preferred under Article 226 of the Constitution of India, have called in
question the Order dated 7th December, 2023, which was followed by
Order dated 20th March, 2025, passed by the respondent no. 1, besides,
seeking quashment of the Order dated 15th April, 2025, passed by the
respondent no. 4.
02. The learned counsel appearing on behalf of the petitioners has drawn the
attention of this Court to the Order passed by the Assistant Collector 1 st
Class (Tehsildar), Anantnag, dated 7th December, 2023. For facility of
reference, the operative portion whereof is reproduced as under:-
“…This court while taking into consideration the above
submissions of applicant as well as report dated 29 th
October, 2022 and revenue records available on file, came
to the conclusion that the parites are admittedly recorded
co-sharers and co-owners in joint possession and as per
record no partition by metes and bounds has taken place
between the parties till date.
In respect of all the facts stated above, I am of the
opinion that there is no bar under law to pass an order for
partition of the landed estate in question and non-
applicants have no legal ground to resist the same,
however want delay in the matter despite parties being in
possession of land in question as recorded co-sharers and
co-owners, as such this Court found that the applicant
estate of Ab. Gaffar sheikh S/O Abdul Aziz Sheikh devolved
upon them by means of mutation No. 1269 and 1340 of
estate as such in order to give logical conclusion of this
order, Naib-Tehsildar Daiglam is hereby directed to
conduct the partition by metes and bound as per partition
Rules, 1973 and put the parties into physical possession of
their respective shares within 20 days. Besides, any issue
not specifically dealt in this order which may arise on spot
be dealt as per law governing the subject. File be
consigned to record after due completion.”
03. It is the specific case of the petitioners that when the aforesaid order
came to be passed, the petitioners were not aware about the passing of
the aforesaid order and the respondents have issued Order dated 20th
March, 2025, whereunder the concerned SSP, Anantnag, was directed to
provide police assistance to carry out the demarcation/partition of the
land in question in furtherance to the aforesaid Order dated 7 th December,
2023.
04. Feeling aggrieved of the same, the petitioners have preferred an appeal
before the Appellate Court by challenging both the orders viz. Order
dated 7th December, 2023, and Order dated 20th March, 2025, passed by
the Assistant Collector 1st Class (Tehsildar), Anantnag, in which, para-
wise reply has been sought from the concerned Tehsildar in the light of
the averments pleaded in the appeal vide Order 15th April, 2025 and the
next date in the appeal has been fixed on 8th May, 2025.
05. With a view to advance his case, learned counsel for the petitioners has
placed reliance upon Section 112-A of the Land Revenue Act. For
facility of reference, the same is reproduced as under:-
” Section 112-A. Stay of partition pending decision of appeal.–
The Appellate Court may issue a precept to the [Revenue Officer]
directing him to stay the partition pending the decision of the
appeal, whether the appeal is pending from a Civil Court under
Section 111-A (1) (b) or From the Court of the [Revenue Officer]
under Section 111-A (3)”.
06. A perusal of Section 112-A of the Land Revenue Act, would reveal that
the learned Appellate Court was under obligation to have stayed the
partition proceedings with a view to protect the lis. However, the
Appellate Court has simply called for the para-wise reply from the
concerned Tehsildar and has not protected the lis and in absence of the
protection being granted to the lis the very purpose of filing of appeal
shall stand forfeited, in case the property in question is partitioned.
Feeling aggrieved of the same, the instant petition has been preferred.
07. Although, from a bare perusal of the aforesaid statutory provision, it is
manifestly clear that the Appellate Court may issue a precept to the
Revenue Officer directing him to stay the partition pending the decision
of the appeal, yet the same cannot be construed as a mandatory direction
and has to be applicable on case to case basis.
08. Prima facie, it appears that it was fit case where the Appellate Court
ought to have protected the lis, otherwise, the very purpose of filing of
appeal shall stand forfeited, in case the basic order passed by the
Assistant Collector 1st Class (Tehsildar), Anantnag, dated 7th December,
2023 is implemented.
09. Heard learned counsel for the petitioner and perused the record. Prima
facie case for indulgence of this Court is made out.
10. Notice to the respondents in the main as well as in CM, returnable
within four weeks. Requisite steps for service within one week.
11. List on 28th May, 2025.
12. In the meantime, subject to objections and till next date of hearing
before the Bench, the proceedings emanating from Order dated 7 th
December, 2023, passed by the Assistant Collector 1st Class (Tehsildar),
Anantnag, shall remain in abeyance.
13. Registry is directed to send for the scanned records of the Assistant
Collector 1st Class (Tehsildar), Anantnag, as also the Appellate Court.
14.
(WASIM SADIQ NARGAL)
JUDGE
SRINAGAR
28.04.2025
“Shamim Dar”
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