The learned trial Magistrate has rightly released the shop in favour of respondent nos.1 & 2 and said finding can neither be termed as perverse or erroneous in view of record available before the trial Magistrate, therefore, this Court does not find any illegality in the order impugned. This was said in the case of Mushtaq Ahmad Khan V/S Rafiq Ahmad Sheikh and Anr [CRMC No.439/2018] by Mr. Justice Rajnesh Oswal in the High Court of Jammu and Kashmir
The facts of the case date back to 19th April, 2018 when the Trial Court passed an order by virtue of which the shop that was initially attached was ordered to be restored to the tenant/applicant therein. Assailing the order, the petitioner filed a writ petition on the ground that the trial Magistrate has not conducted any enquiry whatsoever and in illegal exercise of jurisdiction and provisions of law has directed the restoration of the shop in favour of contesting respondents.
The petitioner contended that the shop belongs to the petitioner and proforma respondents jointly and as such, same could not have been attached by the trial Magistrate and he has further argued that the property stands partitioned between the petitioner and proforma respondents.
Per contra, the respondents contended that respondent nos.1 & 2 are the tenants and learned trial court after perusing the rent agreement ordered the release of shop in question of respondent no.1 & 2 and it is further argued that that the suit stands dismissed and only restoration application is pending before the learned trial Court
From the record it is not disputed that the shop was attached by the learned trial Magistrate in a complaint titled Noor-Ud-din Khatana versus Asif Ahmad Khan. From the perusal of the application filed by the petitioner it transpires that the said shop was initially released in favour of Rafiq Ahmad Sheikh on 14 th March, 2016, however, the said shop was again attached on 17th March, 2016 when the said application was filed by Mushtaq Ahmad Khan. In the said application it was stated that the accused i.e. Asif Ahmad Khan has never executed any rent deed in respect of shop in question in favour of any person and the rent deed produced by Rafiq Ahmad Sheikh is fake and forged. The learned trial court after perusing the rent deed released the shop in favour of tenant i.e. respondent nos.1 & 2.
The Court after perusing the findings of the Trial Court, said that “The said rent deed was challenged by the petitioner and proforma respondents and the said suit was decreed in part in ex parte. The learned trial Magistrate while releasing the shop in favour of respondent no.1 has observed that shop was given on rent with effect from December, 2013 against an amount of Rs.20,000/= and it was further highlighted that the landlord has acknowledged receipt of Rs.11 lacs as premium from the tenant, so once there was a rent deed, prima facie depicting possession of respondent nos.1 & 2, the learned trial Magistrate has rightly released the shop in favour of respondent nos.1 & 2” . Hence, the petition, as such, was found to be without any merit and the same is dismissed accordingly.