Research › Search › Judgment

J&K High Court · body

2003 DIGILAW 384 (JK)

Ashmi v. Gh. Hassan Mir

2003-12-08

S.K.GUPTA

body2003
Per Honble Mr. Justice S. K. Gupta (Oral) : Through the currency of this revision petition, the petitioner seeks reversal of the order dated; 30.8.2003 propounded by learned District Judge, Kupwara by virtue of which he has set aside the order dated : 30.3.2002 passed by Sub-Judge, Kupwara in dismissing the application of the plaintiff/respondent for interim relief and allowed the appeal in restraining the respondents from making any construction on the suit land till its finality. 2. The facts drawn form the judgment of the appellate court are necessary for disposal of this petition to be tersely are that the plaintiff and the father of defendants No. 1 to 4 being real brothers, are recorded in the revenue record as co-owners in equal sharer. It is further stated that the land is ancestral property of the parties and happened to be enjoying peaceful possession thereof. It is stated that the father of defendants 1 to 4, being Numbardar and influential person, managed in his name the entry of self cultivation by concerned patwari and the same litigation also started amongst them in taking out proceedings under section 145 Cr. P.C. pertaining to the possession of the land in dispute giving rise to the breach of peace on spot. That on the death of their father, defendants 1 to 4, being their legal heirs, stepped into his shoes. The property, however, remained joint and unpartitioned amongst the co-sharers, plaintiff and defendants 1 to 4, as no partition had taken place. However, defendants 1 to 4 executed an agreement and transferred the land in exchange to defendants 5 to 7 blatantly ignoring the rights of plaintiff over the said land. On the basis of this document, respondents 5 to 7 collected material and started construction. However, defendants 1 to 4 executed an agreement and transferred the land in exchange to defendants 5 to 7 blatantly ignoring the rights of plaintiff over the said land. On the basis of this document, respondents 5 to 7 collected material and started construction. The plaintiff approached the defendants and requested them to acknowledge his right and treat the agreement as ineffective and refrain from interfering into his peaceful possession but without any positive response which persuaded him to commence the suit against the defendants for declaration and perpetual injunction, along with an application for ad interim injunction under O. 39 Rules 1 and 2 C. P. C. The trial court, on filing of the objections by the defendants/non-applicants and after hearing the parties, disallowed the application for interim relief, but, at the same time, permitted the non-applicants to continue the construction on their furnishing an undertaking to the effect that in case they lose in the main suit, they shall demolish and bring down the construction raised by them and shall not claim, any damages from the plaintiff-applicant. Aggrieved by the order passed by the Sub-Judge, Kupwara dated : 30.3.2002, appeal was preferred by the plaintiff-respondent which was allowed by the impugned order in this revision petition and thus became the subject matter of challenge in this revision petition. 3. I have heard Mr. Sofi, learned counsel for the petitioner and perused meticulously the order impugned in the revision petition. 4. The admitted facts emerging out of the record in this case are that the plaintiff and the father of defendants No. 1 to 4 are the real brothers. After the death of father of defendants 1 to 4, being legal heirs, they came in possession over the land. The land, subject matter of dispute, is stated to be joint amongst the parties who happened to be the co-sharers, as no partition is stated to have taken place, as per averments in the plaint. The defendants 1 to 4 in the written statement, however, stated that they are in possession of the land has fallen to the share of their father during family partition, which stands reflected in the revenue record but no revenue record or partition deed is stated to have been produced in the court. The defendants 1 to 4 in the written statement, however, stated that they are in possession of the land has fallen to the share of their father during family partition, which stands reflected in the revenue record but no revenue record or partition deed is stated to have been produced in the court. The defendants 1 to 4, however, exchanged the land by transfer to defendants 5 to 7 in claiming to be the owner in possession thereof. Further plea is taken that after the death of their father it was necessary that the same should have been mutated in their favour. Further stand of the defendants was that the land in dispute was exchanged with defendants 5 to 7 who had no right or title on the said land. 5. Whereas the stand of the plaintiff before the trial court is that the suit land is an ancestral land of the plaintiff and defendants 1 to 4 and is held by them jointly in the revenue record. The land could not be transferred in exchange by defendants without there being any partition amongst them. Mr. Sofi, learned counsel appearing for the petitioner, however, during the course of arguments admitted that the revenue record does not show any partition having taken place in between the parties in respect of the ancestral land held by them as ancestral property. He, however, stated that the land transferred to defendants 5 to 7, the petitioners herein, was in exchange by executing an agreement and on which the petitioners are raising construction. Mr. Sofi, learned counsel, however, candidly conceded to a query made by the Court as to whether the land in dispute was transferred to defendants 5 to 7 by a registered deed, to which he conceded and frankly stated that the transfer has not been effected by a registered deed. This is well settled laws that the transfer of an immoveable property affected by unregistered deed does not vest any right in the transferee. The defendants 5 to 7, petitioners herein, therefore, are no more than the strangers to the land in dispute as no right is vested in them in the land. Under these circumstances, the transferee, respondents, 5 to 7, cannot be allowed to enjoy the possession of the property under transfer at the instance of one of the co-sharers-defendant No. 1 by a construction on the said land. 6. Under these circumstances, the transferee, respondents, 5 to 7, cannot be allowed to enjoy the possession of the property under transfer at the instance of one of the co-sharers-defendant No. 1 by a construction on the said land. 6. It is well settled law that plaintiff seeking injunction must show prima-facie case, triable issue and balance of convenience for granting the injunction. In the instant case, the plaintiff claiming to be a co-sharer along with defendants 1 to 4 in unpartitioned property has undoubtedly a prima-facie case to seek injunction against stranger, respondents 4 5 to 7 from raising any construction on the suit land. Even the balance of convenience also lies in his favour of granting the injunction rather than with-holding it. Regard being had to the nature of the controversy, nature of the suit and particular rights asserted by the parties, which give rise to be triable issue, required to be determined/adjudicated upon, on the basis of evidence in the main suit. In this view of the matter, I do not find any legal infirmity or frailty in the order impugned dated : 30.8.2003 passed by the learned District Judge, Kupwara. The view taken by the learned District Judge, Kupwara in my opinion is a view to which no exception can be taken. 7. Before I part with this revision petition, it may be pointed out that any expression of opinion shall remain confined to the disposal of this revision only and shall have no bearing on the merits of the case. 8. In the facts and circumstances of the case I do not find any merit in this revision and the same is accordingly dismissed at a preliminary stage of admission.