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2003 DIGILAW 370 (JK)

Lasu Sheikh v. Ramzan Parray

2003-11-28

SYED BASHIR-UD-DIN

body2003
Revision petitioners 1 to 3 have filed suit for declaration and injunction to challenge sale deeds executed on 4.4.1970 and 4.8.1970 as devoid of any legal force and to restrain Ramzan Parray defendant to the suit (respondent to the revision petition) to interfere with the possession of the land subject of matter of suit. The property belongs to one Ali Sheikh who died issueless and the plaintiff and proforma defendants (revision petitioners) claim to have succeeded to the entire matrooka estate of said Ali Sheikh legal heirs. The sale deed purportedly executed by said Ali Sheikh in favour of the defendant/respondent as above is prayed to be declared (on pleaded grounds) as null and void, and devoid of any legal force. Respondent/ defendant has contested the suit as well as the revision petition. He claims to be the lawful owner of the property after the two sale deeds were executed by said Ali Sheikh in his favour. He has also pleaded that he is in possession of the subject of the sale and the lis. An application for temporary injunction was moved before the trial court of Munsiff Sumbal Sonawari. The trial court has after hearing parties, on application of legal parameters of prima facie case, balance of convenience and irreparable loss on coming to the conclusion that the plaintiff has no case for injunction, dismissed the application. Even so, the defendant contesting respondent has been bound by an undertaking that he is not to alienate to suit property during the pendency of the suit. The petitioners challenged the order in Appeal. The Principal District and Sessions Judge Baramulla after hearing the parties on perusal of record on consideration upheld the order of the Munsiff and recorded finding that the conclusion drawn by the Munsiff are supportable on record and, therefore, dismissed the appeal. These orders dated 7.6.2003 and 20.10.2003 are challenged in this petition. The counsel submits that the impugned orders are not based on facts and are erroneous in law, though good grounds were raised to assail the order. The District Judge has not bestowed the attention to focus on the issue of injunction. The counsel submits that the Munsiff in his order has at page 4 observed that the respondent is out of possession, however, this aspect of the matter has been taken care of by District Judge in the order. The District Judge has not bestowed the attention to focus on the issue of injunction. The counsel submits that the Munsiff in his order has at page 4 observed that the respondent is out of possession, however, this aspect of the matter has been taken care of by District Judge in the order. It is dealt with and the District Judge has recorded a lucid finding. Read in the context and totality of facts, trial Munsiff has slipped to write that the defendant is out of possession, when the fact is that for all intents and purposes he has come up with the finding that the possession is not with the plaintiff. This conclusion of the two courts is based on revenue records, recital in the documents for sale, mutation proceedings and other available record. The concurrent findings of courts for purpose of interim injunction and applicable legal principals to facts of this case, not shown vitiated or to suffer from any error. Nothing appears on record to show that the impugned order legally or suffers from any jurisdictional error. No case of failure of justice or jurisdictional impropriety is pointed out. It is not in dispute that both trial and appellate courts have passed the impugned orders within Jurisdiction. In such a case revisional powers are not available to take on factual and legal conditions. In M/S D.L.F Housing and Construction Co.(P) Ltd. v. Sarup Singh and others, AIR 1971 SC: 2324, the Supreme Court, while dealing with exercise of revisional jurisdiction by High Court under Section 115 of CPC observed:- ".......The mass of reported cases only serve to show that the High Courts do not always appreciate the limits of their Jurisdiction under this section. The legal position was authoritatively laid down by the Privy Council as far back as 1984 in Raja Amir Hassan Khan v. Sheo Baksh Singh (1883-1884) 11 Ind. App 237 (PC). The Privy Council again pointed out in Balakrishana Udayar v. Vasudeva Ayyar, 44 Ind. App 261 : AIR 1917 PC 71 that this section is not directed against the conclusions of law or fact in which the question of Jurisdiction is not involved. App 237 (PC). The Privy Council again pointed out in Balakrishana Udayar v. Vasudeva Ayyar, 44 Ind. App 261 : AIR 1917 PC 71 that this section is not directed against the conclusions of law or fact in which the question of Jurisdiction is not involved. This view was approved by this Court in Keshar Deo v. Radha Krishan, 1953 SCR 136 : AIR 1953 SC 23 and has since been reaffirmed in numerous decisions." The revision petition is not merited and is dismissed with the observation that pendent lit, subject of the suit shall be preserved and no steps (may be by way of sale or otherwise), as directed by trial court, be taken to deprive the party of the benefit who may ultimately succeed in the Suit.