Oral Judgment:

01. The appellant-Irshad Hussain came forward with the present civil second appeal instituted in September, 2020 during COVID-19 Pandemic period thereby aiming to assail judgment and decree dated 11.08.2020 passed by the court of learned District Judge, Poonch in civil first appeal on file No. 01/Civil Appeal of 2013 preferred by the respondent No. 1 herein, namely, Jugal Kishore against the judgment and decree dated 03.01.2013 of the court of learned Sub-Judge, Poonch in a civil suit on file No. 195/Civil which was preferred by the appellant-Irshad Hussain.

02. The appellant-Irshad Hussain filed said civil suit on file No. 195/Civil on 07.03.1994 before the court of learned Sub-Judge, Poonch. In his suit, the appellant sought a decree of declaration with respect to an agreement dated 05.11.1993 between the respondent No.2-Ragubir Paul Puri, who is the proforma respondent herein and who figured as defendant No. 2 in the court below, in favour of respondent No. 1 herein-Jugal Kishore who figured as defendant No. 1 in the suit related to the suit property situated in Ward No. 3, Poonch, with a decree of mandatory injunction for restoring the prior position and vacation of the portion of the suit property along with a permanent prohibitory injunction for injuncting all nine defendants named in the civil suit from interfering with the appellant’s possession qua the suit property.

03. Said suit of the appellant was contested and ultimately led to passing of judgment and decree dated 03.01.2013 by the court of learned Sub-Judge, Poonch by return of findings on all seven issues as framed in the suit.

04. Accordingly, suit document of Agreement to Sell read with special Power of Attorney dated 05.11.1993 were declared to be inoperative with respect to the rights of the appellant qua suit property and, therefore, all the defendants were injuncted not to interfere in the suit house in any manner.

05. However, the decree of mandatory injunction solicited by the appellant was not granted despite a clear relief being solicited by the appellant.

06. A civil first appeal came to be taken out by the respondent-Jugal Kishore on file No. 01/Civil Appeal before the court of learned Principal District Judge, Poonch on 08.04.2013 which came to be disposed of vide appellate court’s judgment and decree dated 11.08.2020.

07. The appellate court of Principal District Judge, Poonch by carrying out appraisal and appreciation of the evidence led in the suit and examining the reasoning and finding of the trial court came up with issue-wise findings by reversing the judgment and decree of the court of learned Sub-Judge, Poonch.

08. The appellate court of Principal District Judge, Poonch came to a core finding that the document under challenge remained unquestioned from the appellant’s end as plaintiff with no evidence being led from his end to prove that the said document was bogus, particularly, when it was being alleged that the same had not been executed by the defendant No. 2-Ragubir Paul Puri.

09. It is against aforesaid outcome of civil first appeal that the appellant, as plaintiff, came forward with the present civil second appeal which is yet to be taken up for consideration as to whether there are any substantial questions of law involved.

10. In his memo of appeal, the appellant has formulated the following substantial questions of law.

                     I. Whether the appellate court can set aside the judgment and decree passed by the trial court summarily under Order 41 CPC without complying the mandate of Order 41 Rule 31 CPC ?

                     II. Whether an agreement to sell qua the immoveable property already executed and in existence of prior sale agreement can another agreement be executed by the party which agreement is to be preferred ?

                     III. Whether the appellate court can set aside the decree and judgment as a whole when the evidence came before the court that the appellant is in possession of the suit property and in case of failure by either the party to prove title is not the plaintiff entitled to protect his possession ?

                     IV. Whether the judgment and decree passed by the appellate court is perverse in law ?

                     V. Whether the Agreement to sell is compulsorily registeredable, when the provision of section 53-A does not find place in the state of Jammu and Kashmir Transfer of property Act.

11. The proposed questions, by no definition, constitute to be questions of law much less substantial questions of law. A question of law per-se would mean a question being drawn from admitted state of facts having taken place in the civil suit read with the civil first appeal.

12. In his entire memo of appeal, the appellant has not come forward as from which admitted finding of facts, the appellant is meaning to draw the questions of law by referring them to be substantial questions of law. A civil second appeal cannot stand at the same pedestal as the civil suit is or for that matter a civil first appeal.

13. The questions of law so framed by the appellant are as if the High Court has to re-read the evidence and then examine it by reference to the court of learned Sub- Judge, Poonch’s judgment and decree and then of the appellate court of the Principal District Judge, Poonch’s judgment and decree which surely is not the domain of High Court in exercise of jurisdiction under section 100 of the Code of Civil Procedure, 1908 (erstwhile J&K Code of Civil Procedure, Svt. 1977).

14. Accordingly, the present civil second appeal is held to be involving no substantial questions of law and is accordingly, dismissed.

15. The detailed order is following the order dated 24.09.2024 vide which the appeal was ordered to be dismissed as is hereby being done.