AB.AZIZ MIR vs JAVAID AHMED KHAN AND ORS

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 26.09.2026
Pronounced on: 30.10.2026
Uploaded on: 30.10.2026
Whether the operative part or full
judgment is pronounced: Full


CM(M) No.331/2025
c/w
CCP(S) No.596/2021

AB. AZIZ MIR
...PETITIONER(S)/APPELLANT(S)
Through: - Mr. J. H. Reshi, Advocate with
Mr. Shah Murtaza, Advocate.
Vs.
JAVAID AHMAD KHAN & OTHERS
…RESPONDENT(S)
Through: - Mr. Nisar Ahmad Bhat, Advocate with
Ms. Shah Bareer, Advocate.
CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1) The petitioner, through the medium of instant petition,
has invoked jurisdiction of this Court under Article 227 of
the Constitution of India, for quashing the order dated
st
08.08.2025 passed by the Court of learned 1 Additional
District Judge, Srinagar, (for short, “the executing court”), in
an application filed by the respondent No.1 i.e. son of the
deceased decree holder for appropriate orders regarding
execution of judgment and decree passed on 24.06.1997.
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2) The petitioner has assailed the impugned order on the
following grounds:
(I) That the petitioner is the lis pendens purchaser of
the property in question, which is the subject matter
of litigation.
(II) That the ex-parte judgment and decree dated
st
24.06.1997, passed by the learned 1 Additional
District Judge, Srinagar, is nullity and non-est in the
eyes of law.
(III) That the executing court had become functus officio
as the earlier execution application was consigned to
records by it in terms of order dated 30.07.2018, and
the executing court has no power whatsoever to pass
the order dated 08.08.2025, directing the sealing
and seizure of land measuring 16 marlas, residential
house, Band Saw and other superstructures existing
on the same, allegedly under the use and occupation
of the petitioner.
(IV) That the other legal heirs of the deceased decree
holder, Mst. Zainab, namely, Mushtaq Ahmad Khan,
Farooq Ahmad Khan and Ghulam Mohammad
Khan, had not filed application for appropriate
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orders before the executing court once the execution
petition was consigned to records as having been
discharged.
Submissions:
3)
Learned counsel for the petitioner has submitted that
the learned executing court has not considered the fact that
principle of res judicata was not applicable in the case
projected by the petitioner, as his projected claim was never
decided by any court. He further argued that the decree and
judgment passed by the court without jurisdiction is nullity
and un-executable in the eyes of law and further that he has
been condemned unheard. In support of his submissions,
learned counsel for the petitioner has placed reliance upon
the following judgments:
i) National Confederation of Officers Association vs.
Union of India & Ors,
(2022) 4 SCC 764,

ii) State of Orissa and anr. Vs. Dhirendra Sundar Das
and Ors.
(2019) 6 SCC 270,
iii) State of Punjab vs. Davinder Pal Singh Bhullar &
ors.
(2011)14 SCC 770,
iv) Periyammal (dead) through LRs. Vs. V. Rajamani
and anr.
2025 SCC OnLine SC 507,

v) Bangalore Development Authority v. N. Nanjappa
and anr.
AIR 2022 SC 81,
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vi) Rahul S. Shah vs. Jinendra Kuamr Gandhi and ors.
(2021) 6 SCC 418,
vii) Sunil Vasudeva and Ors. vs. Sundar Gupta and Ors.
(2019) 1 SCC 385,

viii) B. Gangadhar v. B. G. Rajalingam, AIR 1996 SC 780,
ix) Odisha State Financial Corporation vs. Vigyan
Chemical Industries & Ors.
2025 SCC OnLine SC 1609,

x) Sushil Kumar Mehta vs. Gobind Ram Bohra,
(1990) 1 SCC 193,
4) Per contra , Learned counsel appearing for Respondent
No. 1 submitted that the petitioner initially projected himself
as the donee of the subject property, whereas in the present
petition, he claims to have purchased the same. The
petitioner cannot be permitted to alter his stand at his sweet
will and is, therefore, not entitled to any relief. He further
submitted that identical issues to those raised herein were
previously agitated by the petitioner in a series of petitions
before this Court as well as the Hon'ble Supreme Court of
India, all of which met with failure and were duly dismissed.
5) Heard and perused the record.
Facts:
6) Brief facts necessary for the disposal of this petition are
that one Mst. Zainab Begum, the original decree holder,
alienated one kanal of land in favour of her son, namely,
Mushtaq Ahmad Khan. Within a short period after the
alienation, Mushtaq Ahmad Khan transferred the property
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in question. Thereafter, Mst. Zainab filed a suit claiming
right of prior purchase against her son, alleging that one
kanal of land alienated to him under family settlement by
her, has been clandestinely sold by him by executing a sale
deed dated 30.01.1991, in favour of one Ghulam Nabi Shah.
During pendency of the said suit, Ghulam Nabi Shah
executed a sale deed dated 20.07.1991, in favour of Ali
Mohammad, Mst. Mehra and Ghulam Mohi-ud-Din, and,
accordingly, the property came to be mutated in their favour
by the revenue authorities. After Mst. Zainab Begum
acquired knowledge of the clandestine sale, she got the suit
amended and also challenged the subsequent sale deed
dated 20.07.1991. She also filed an application to restrain
the defendants therein from alienating the suit property or
to change its character. In terms of order dated 22.07.1993,
the aforementioned application was allowed, and the learned
trial court passed an order of status quo. As the defendants
therein did not choose to appear before the trial court, an ex
parte judgment and decree dated 24.06.1997 came to be
passed in favour of Mst. Zainab Begum, whereunder she was
held entitled to first right to purchase the property. The
Collector was directed to deliver her possession of the
property in question. Out of purchase amount, a sum of Rs.
10,000/ was already deposited and remaining ₹ 40,000/-
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CCP(S) No.596/2021 Page 5 of 20

was to be deposited up to 25.07.1997, failing which the suit
was deemed to be dismissed. Thereafter, Mst. Zainab Begum
initiated the executing proceedings.
7) However, the petitioner filed a writ petition bearing
OWP No.45/1998, with a prayer for quashing the judgment
and decree, claiming therein that he had acquired the right
in the subject property on the basis of oral gift made by the
newly impleaded defendants in the suit in his favour. The
learned Writ Court, in terms of judgment dated 19.02.2007,
set aside the judgment and decree. The aforesaid judgment
of the learned Writ Court came to be assailed by Mst. Zainab
Begum in terms of LPA No.73/2007, which came to be
allowed in terms of order dated 14.09.2012, and the
judgment and decree passed by the learned trial court was
restored along with the execution proceedings and the
appellant namely Zainab Begum was held entitled to costs
of Rs. 20,000.
8) The petitioner assailed the order dated 14.09.2012
passed by the Division Bench of this Court in LPA No.
73/2007 before the Hon'ble Supreme Court in Special Leave
to Appeal (Civil) No. 34332/2012; however, the same was
withdrawn with liberty to seek such other redress as may be
permissible in law, vide order dated 26.11.2012. Thereafter,
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the petitioner filed an application before the executing court,
contending that the decree was inexecutable and a nullity in
law. The learned executing court, vide order dated
22.07.2013, dismissed the said application.
9) Aggrieved by the order dated 22.07.2013, the petitioner
preferred Civil Revision No.43/2013, wherein the learned
Single Judge of this Court, in terms of order dated
01.10.2013, directed the Deputy Commissioner, Srinagar, to
take over possession of the property and petitioner was
directed to execute undertaking before the Deputy
Commissioner that he will not transfer the house, he will not
create any third party interest in the house and will not
change the nature of the house.
10) Thereafter, the said revision petition came to be
dismissed in terms of order dated 03.07.2018. The petitioner
filed a review petition bearing RP No.06/2018, seeking
review of the order dated 03.07.2018, but the said review
petition was also dismissed in terms of order dated
21.07.2018.
11) The petitioner thereafter approached the Hon'ble
Supreme Court of India through Special Leave to Appeal
(Civil) Nos.2776-2777/2019, impugning orders dated
03.07.2018 passed in Civil Revision No.43/2013 and
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21.07.2018 passed in RP No.06/2018, by the learned Single
Judge of this Court, and after hearing the parties, the SLPs
came to be dismissed in terms of order dated 26.08.2021.
12) In the interregnum, vide order dated 10.07.2018, in
compliance to the directions of this Court, the executing
court directed Deputy Commissioner, Srinagar, as well as
Tehsildar, Shalteng, to deliver the possession of the land
covered under decree within a period of 20 days and file
report by 30.07.2018, on which date a report was submitted
and after taking note of the report of Tehsildar concerned,
the execution proceedings were disposed of.
13) On the very next day, i.e., 01.08.2018, the decree-
holder filed an application seeking appropriate orders,
asserting that the Tehsildar concerned had submitted a false
compliance report on 26.07.2018, and that signatures of the
applicant were obtained on a blank paper by the Tehsildar,
Shalteng. It was further submitted that an objector was in
possession of the subject property, despite the fact that the
Deputy Commissioner, Srinagar, had previously filed an
affidavit before the High Court stating that the property had
been sealed and placed under Supardnama .
14) Meanwhile, an intervenor (the petitioner herein) also
filed an application stating that he was in possession of the
CM(M) No.331/2025 c/w
CCP(S) No.596/2021 Page 8 of 20

suit property and that the compliance report submitted by
the Tehsildar, Shalteng, was false and fabricated.
15) The order dated 10.07.2018 passed by the learned
executing court was assailed by the petitioner through the
medium of Civil revision bearing CR No. 30/2018 but that
also was dismissed by this court vide order dated
06.09.2018.
16) Apart from the aforesaid litigation, the petitioner in the
year 2015 also preferred an appeal against the judgment and
decree dated 24.06.1997, along with an application for
condonation of delay bearing COD No. 105/2015. The said
condonation application was disposed of vide order dated
12.10.2017, granting liberty to the petitioner to prosecute
the pending revision petition, i.e. Civil Revision No. 43/2013.
17) The petitioner assailed the order dated 12.10.2017,
through the medium of LPAC No.259/2017, but the said
appeal was dismissed as not maintainable, in terms of order
dated 31.10.2018. The petitioner thereafter filed Special
Leave Petition (Civil) Diary No. 1739/2020, against the
orders dated 06.09.2018 passed in Civil Revision
No.30/2018 and order dated 31.10.2018 passed in LPA
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CCP(S) No.596/2021 Page 9 of 20

No.259/2017, but the Special Leave Petition was dismissed
in terms of order dated 15.07.2022.
18) Taking note of both applications filed by decree holder
and the intervener i.e. petitioner, the learned executing court
directed the Tehsildar, Shalteng, and the Deputy
Commissioner, Srinagar, to furnish their replies/
explanations. Thereafter, vide order dated 26.02.2022, the
executing court, after adverting to its earlier orders, recorded
its satisfaction that the decree passed in favour of the
decree-holder was not executed and issued notices to the
Deputy Commissioner, Srinagar, and the Tehsildar,
Shalteng, directing them to explain why the decree had not
been executed in letter and spirit. They were further directed
to execute the decree with police assistance, hand over
physical possession of the suit land to the decree-holder, and
submit a compliance report
19) The order dated 26.02.2022 was assailed by the
petitioner in CM(M) No.31/2022. The learned executing
court in terms of order dated 28.03.2022, kept the
proceedings in abeyance in view of the fact that the record
was called by this Court.
20) CM No.1469/2022 came to be filed by the respondent
No.1 in CM(M) No. 31/2022, and this court observed that
CM(M) No.331/2025 c/w
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there was no stay with regard to execution of the decree by
this Court, and accordingly executing court was directed to
proceed further in the execution petition pending on its files.
The petitioner sought a review of the aforesaid order through
the medium of RP No. 28/2022, wherein notice was issued
to the caveator i.e. respondent No. 1.

21) Thereafter, in terms of order dated 30.05.2022, the
learned executing court directed the Deputy Commissioner,
Srinagar, as well as Tehsildar, Shalteng, to comply with the
order dated 26.02.2022.
22) Thereafter, the petition bearing CM(M) No.31/2022,
whereby the order dated 26.02.2022, was assailed, also
came to be disposed of as having been rendered infructuous,
in terms of order dated 20.04.2024.
23) The executing court, after taking note of the factual
aspects of the case, in terms of order dated 08.08.2025,
again directed Deputy Commissioner, Srinagar, and
Tehsildar, Shalteng, to seal the property forthwith along with
structure existing over it and be kept at the supurdari of
Tehsildar concerned.
Analysis:
24) The first contention raised by the petitioner is that the
petitioner is the lis pendens purchaser of the property in
CM(M) No.331/2025 c/w
CCP(S) No.596/2021 Page 11 of 20

question, but the learned executing court has not taken into
consideration the same and has proceeded to pass the
impugned order.
25) In the very first writ petition filed by the petitioner,
bearing OWP No. 45/1998, he pleaded that he had acquired
a right in the subject property on the basis of an oral gift
executed by the newly impleaded defendants in the suit. The
petitioner further contended in the said writ petition that the
law governing the right of prior purchase was not applicable
to the instant case. The Division Bench of this Court in terms
of judgment dated 14.09.2012, while adjudicating the LPA
preferred by the original decree holder, framed the following
question:
whether the writ petitioner/respondent No.1
would be bound by the judgment and decree
dated 24.06.1997 by operation and application of
the principle of lis pendens?
26) The above-mentioned question was answered by the
Division Bench by holding that the principles of lis pendens
would apply in respect of transfers/alienation which have
been affected after filing of the civil suit by the appellnat,
Mst. Zainab Begum, and the judgment and decree dated
24.06.1997, passed by the civil court would be applicable to
the oral gift claimed to have been made to the petitioner by
the newly impleaded defendants in the suit. It was also
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observed that once the rights of the parties including right
of any subsequent beneficiary of a transaction are to be
governed by the judgment and decree of civil court dated
24.06.1997, then no obstruction could be placed by the
subsequent transaction including oral gift.
27) The said judgment was assailed by the petitioner, albeit
without success, and the findings recorded by the Division
Bench have since attained finality. The petitioner cannot
now be permitted to shift his stance and advance an entirely
new plea that he is a bona fide purchaser of the property in
question. In Amar Singh v. Union of India , (2011) 7 SCC
69, the Hon’ble Supreme Court of India has observed that
“ This Court wants to make it clear that an action at law is not
a game of chess. A litigant who comes to Court and invokes
its writ jurisdiction must come with clean hands. He cannot
prevaricate and take inconsistent positions.”
28) Consequently, the contention raised by the petitioner
is devoid of merit and stands rejected.
29) It was next contended that the judgment and decree
dated 24.06.1997, is a nullity as the provisions of Right of
Prior Purchase Act were not applicable in case of the
commercial property. The petitioner had raised an identical
ground in Civil Revision No.43/2013, decided on
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CCP(S) No.596/2021 Page 13 of 20

03.07.2018, albeit without success, and it would be apposite
to take note of paragraph 4 of the judgment, which is
extracted as under:
4. The application under section 47 of the Code, the
petitioner sought dismissal of the execution
proceeding. He, firstly claimed that he has acquired
the suit property on the basis of oral gift made in his
favour by respondents (defendants/ judgment
debtors) 3 to 5 and the same has been duly mutated
in his favour in the revenue records and that he has
acquired the status of a legal representative of the
said respondents / judgment debtors, competent to
maintain his claim under section 47. Further he con-
tended that the 'suit property, besides the land
measuring 5440 sft., comprises also of a single storey
structure with the bandsaw run therein for conducting
business in manufacture and sale of fruit boxes. He
assailed the judgment and decree primarily on the
ground that the decree is nullity as 'no right of prior
purchase is available about the place of business as
prescribed by section 5 of the Jammu and Kashmir
Right of Prior Purchase Act, SVT, 1993' (For short the
Act) and that the trial court did not have inherent
jurisdiction to pass the decree about the land on the
basis of alleged right of prior purchase, which is not
available under the statute. In addition, the petitioner
contended that the decree is not executable as the
land under the judgment and decree has not been
identified inasmuch as the decree relates to land
only, whereas the suit property comprises of a
structure also and that the execution petition is time
barred.
30) The order dated 03.07.2018 was sought to be reviewed
by Review Petition bearing No. 06/2018, but review petition
was dismissed in terms of order dated 21.07.2018. For the
purpose of assailing the order dated 03.07.2018, passed in
Civil Revision No 43/2013, and order dated 21.07.2018,
passed in Review Petition No.06/2018, the petitioner raised
CM(M) No.331/2025 c/w
CCP(S) No.596/2021 Page 14 of 20

the similar grounds before the Hon'ble Apex Court, but the
SLP preferred by him was dismissed in terms of order dated
26.08.2021.
31) Finality in litigation is a basic tenet of jurisprudence,
and permitting the petitioner to continually re-agitate
identical issues would render legal proceedings
interminable. It would be profitable to take note of the
observations made by the Hon’ble Supreme Court of India in
B.S. Lalitha v. Bhuvanesh, 2026 SCC OnLine SC 860 ,
which are extracted as under:
35. The provision embodies a rule of conclusiveness that is
founded in considerations of public policy. It rests upon the
salutary doctrine that there must be a finality to litigation,
and that a party which has once succeeded or failed on an
issue should not be permitted to re-agitate the same at a
subsequent stage. The principle applies not only between two
separate suits but also between two stages of the same litigation
what is referred to as ‘interlocutory res judicata .’ In Satyadhyan
Ghosal (supra), a three-Judge Bench of this Court in Para 8 held:
“ The principle of res judicata applies also as between two stages
in the same litigation to this extent that a court, whether a trial
court or a higher court having at an earlier stage decided a
matter in one way will not allow the parties to re-agitate the
matter again at a subsequent stage of the same proceedings. ”
(emphasis added)
32)
Also, it does not lie in the mouth of the petitioner to
urge that he was denied an opportunity of being heard. His
pleas were duly considered and adjudicated upon by the
executing court, this Court, and the Hon'ble Supreme Court
CM(M) No.331/2025 c/w
CCP(S) No.596/2021 Page 15 of 20

of India, though on each occasion, his efforts met with
failure. Accordingly, this contention of the petitioner too is
rejected.
33) Lastly, it was contended that in terms of order dated
30.07.2018, the executing court had become functus officio
as it had consigned the execution petition to records. It
needs to be noted that on the very next day, i.e. on
01.08.2018, the decree holder complained to the executing
court about the conduct of the Deputy Commissioner and
Tehsildar, Shalteng, wherein the applicant had stated that
signatures were obtained on plain paper and some objector
was in possession of the said property. Interestingly, the
petitioner also filed an application stating therein that the
subject property was in his possession, thereby disputing
the report submitted by Tehsildar concerned dated
26.07.2018, pursuant to which the execution proceedings
were consigned to records. Once there is admission on the
part of the petitioner that the subject property is in his
possession, the order, pursuant to which the execution
proceedings were consigned to records, becomes
meaningless. Otherwise also, the petitioner cannot raise this
plea in the instant petition, more particularly when the
petitioner had raised similar plea in CM(M) No.31/2022, and
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CCP(S) No.596/2021 Page 16 of 20

in terms of order dated 10.03.2022, the contention of the
petitioner was recorded that there was no lis pending before
the executing court. During the hearing of application
bearing CM No. 1469/2022 arising out CM(M) No.31/2022,
the argument was raised by the learned counsel for the
petitioner that once the executing court had disposed of the
matter, no lis was pending before the court below. While
allowing CM No.1469/2022, preferred by respondent No.1 in
terms of order dated 13.04.2022, in paragraphs 10 and 11
of the order, it was recorded as under:
10. The decree sought to be executed has attained
finality, despite after several rounds of litigation
between the contesting parties, and the decree passed
in the year 1997 is yet to be executed despite all efforts
of the applicant-respondent No.1. It can't be said that
the decree cannot be executed simply for the reason
that some Contempt matter is pending before this
Court or before the Executing court also, with regard to
the same matter against the official respondents.
11. There was no stay with regard to the execution of the
decree by this Court; the Executing court has
unnecessarily kept its hands off by observing that the
propriety demands that in view of summoning of the
record by this Court that court should not proceed
further in the matter. It is clarified that in absence of any
clear direction from this Court with regard to not
proceeding further with the case, the Executing court is
under obligation to go ahead with the proceedings
without waiting for any direction yet to be passed by this
Court.
34) The aforesaid order dated 13.04.2022 has attained
finality. This Court in terms of the said order reminded the
executing court of its duty for executing the decree
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expeditiously as directed by the Hon'ble Apex Court in Rahul
S. Shah v. Jetinder Kumar Ghandi & Ors. (2021) 6 SCC
418 and directed the executing court to proceed further in
the execution petition pending on its files. Interestingly, the
petition bearing CM(M) No. 31/2022 was dismissed as
having rendered infructuous pursuant to statement made by
the learned counsel for the petitioner. The petitioner, as
such, is estopped from raising the same issue again, which
has attained finality. Accordingly, this contention of the
petitioner is also rejected.
35) The judgments relied upon by learned counsel for the
petitioner are not applicable to the facts and circumstances
of the instant case.
36) From what has been discussed above, it becomes
evident that the petitioner has left no stone unturned to
scuttle the execution proceedings. He filed numerous
petitions under Article 227 of the Constitution of India before
this court, three SLPs before the Hon'ble Supreme Court of
India, and despite the order dated 13.04.2022 (supra),
passed by this Court, has abused the process of law by filing
the present petition yet again. Once the order dated
26.02.2022 had attained finality in view of the order passed
by this Court in CMP No.1469/2022 arising out of CM(M)
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No. 31/2022, the petitioner could not have filed the present
petition, thereby raising the same issues. It needs to be
noted that CM(M) No.31/2022 stands dismissed as having
rendered infructuous, pursuant to statement made by the
learned counsel for the petitioner, as is evident from the
order dated 20.04.2026.

37) It appears that the petitioner has taken no heed of the
scathing observations made by the Division Bench of this
Court while allowing the Letters Patent Appeal (LPA)
preferred by the original decree-holder vide judgment dated
14.09.2012. The relevant paragraph whereof reads as under:
“ For some people litigation is a passion and it is
used as an engine of harassment to others. If one
set of litigant has lost the litigation, the other group
is kept ready for inflicting fresh dose of litigation
knowing full well the results. They tend to take
chances and wait for the result that judicial
administration might accept their point of view. The
cycle of litigation might have ended in the higher
courts unfavourably, yet a new beginning is made
by initiating another judicial process. These are the
basic features of the case in hand.”

38) The aforesaid observations of the Division Bench
continue to hold full force and effect, even after a lapse of
fourteen years. The petitioner has made it a habit to assail
every order passed by the executing court in a calculated
attempt to frustrate the execution proceedings, as a result of
which the decree-holder has remained deprived of the fruits
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of the decree. This Court is firmly of the view that the
petitioner is guilty of abusing the process of law by
persistently raising identical issues that stand conclusively
settled.
39) In light of above, this Court is of the considered view
that the present petition is nothing but an abuse of process
of law and, as such, the same is dismissed with costs of
Rs.20,000/. Petitioner to deposit cost within four weeks.
40) The proceedings in CCP(S) No.596/2021 shall stand
closed and the contempt petition is disposed of.
(Rajnesh Oswal)
Judge

Srinagar,
30.10.2026
“Bhat Altaf-Secretary”



Whether the judgment is reportable: YES








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