Law:

Section:

Specific Relief Act (I of 1877)--- ----S. 54---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42---Appeal to Supreme Court---Suit for permanent injunction---Shamilat deh land---Possessory right, transfer of---Scope---Trial Court decreed suit which was remanded by the Appellate Court below for decision afresh---High Court on second appeal set aside the and decree of Appellate Court and restored that of Trial Court---Contention of defendant was that decree of title of undivided Shamilat deh land could not be granted---Validity---Trial Court had granted decree of title with regard to undivided Shamilat deh land---No right of title in Shamilat deh land could be conferred unless same was legally partitioned according to the entitlement of proportionate shares of owners of village---Vendee who had stepped into the shoes of vendor could not claim rights more than that of vendor---If any transaction of Shamilat deh land was made out then same would only transfer the possessory rights and not the title of such land---Sale deed in favour of plaintiff would only confer upon him the possessory rights vested in the vendor and not the title of sold property---Both the parties were co-owners of the village and they were entitled to proportionate share in the Shamilat deh land---Owner in the village who was in possession of a portion of Shamilat deh land was entitled to retain the same unless property was legally partitioned---Courts below fell in error of law, mis-read and non-read the evidence---Assertion of defendant was an admitted fact which had been proved from the evidence of the parties---Both the parties were in possession of the pieces of suit land but exact measurement of land in their possession was not ascertainable---Factual proposition on the basis of available evidence on record could not be resolved---First Appellate Court had rightly accepted the application for appointment of commission to ascertain the on-spot position of the parties---Impugned was set aside and case was remanded to the Trial Court with the direction that a commission should be appointed to ascertain the on-spot position of the parties and thereafter decree for mandatory…

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