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2006 DIGILAW 279 (JK)

Bashandgani Ishber v. Umar-ud-Din Chopan

2006-11-14

MANSOOR AHMAD MIR

body2006
This appeal is directed against the order dated 16th June, 2005, hereinafter referred to as impugned order, passed by First Additional District Judge, Srinagar in a suit titled Bashandgani Ishber Guptganga Vs. Umar-ud-Din Chopan and others, whereby application filed by the plaintiff for grant of interim relief came to be dismissed. FACTS: 2. Plaintiffs-appellants filed a suit for declaration and mandatory injunction in the representative capacity. Alongside the suit, plaintiffs also filed three miscellaneous applications; one for grant of permission to file the suit in representative capacity under Order 1 Rule 8 of Civil Procedure Code, for short hereinafter referred to as Code, second for dispensation of notice in terms of Section 80 of the Code and third for grant of interim relief. 3. It appears that trial court granted permission to file the suit in the representative capacity under Order 1 Rule 8 of the Code and also dispensed with the requirement of Section 80 of the Code. The trial court issued notice in application for grant of interim relief and directed the parties to maintain status-quo. 4. Defendant No. 1-Respondent No. 1 filed application in terms of Order 39 Rule 4 of the Code for vacation of the order and trial court after hearing the learned counsel for the parties dismissed the application for grant of ad-interim relief. Feeling aggrieved of the said order, plaintiffs preferred this appeal. 5. It appears that during the pendency of the suit Commissioner came to be appointed and Commissioner has submitted report to which parties have not filed objections so far. In terms of the report, defendant No. 1-respondent No.l has raised construction of ground floor. 6. It also appears that land measuring 8 marlas 70 Sft falling under survey No. 1063 came to be allotted by official defendants-respondents in favour of defendant No.l-respondent No.l and accordingly he sought permission for raising construction which came to be granted in his favour and he started raising construction and also raised a shed wherein he is residing as per the report of Commissioner. A Suit came to be filed in the Court of Municipal Magistrate, Srinagar, titled as Mohallawallas of Ishber Vs. Commissioner and others including Umar-ud-Din Chopan- respondent No.l herein. A Suit came to be filed in the Court of Municipal Magistrate, Srinagar, titled as Mohallawallas of Ishber Vs. Commissioner and others including Umar-ud-Din Chopan- respondent No.l herein. That court had not granted any interim relief and during the pendency of the said suit the inhabitants of Ishber filed another suit in which the interim restraint order came to be passed and during the pendency of the suit in hand the suit which was pending before Municipal Magistrate, Srinagar, came to be withdrawn vide order dated 1st July, 2005. 7. Trial court after examining the pleadings and record on the file came to the conclusion that defendant No. 1-respondent No.l has raised construction as per permission and accordingly dismissed the application of the plaintiffs-appellants. 8. Learned counsel for the plaintiffs-appellants argued that the land in question was donated by its owners to `Panchayat Ghar and accordingly necessary entries came to be recorded in the revenue record in possession column indicating `Panchayat Ghar in possession. Thereafter it was decided to construct a hospital in the said land and that is why the property was recorded in the name of Municipality. Official respondents have no right, power or jurisdiction to allot the land in question to defendant No.l vide Order No.608l of 2001 dated 12.09.2001. The said order is illegal, without jurisdiction and null and void and consequently the permission granted for raising construction is also illegal and without jurisdiction and confers no right and title upon defendant No.l-respondent No.l. 9. During the pendency of the appeal the parties have also produced some documents. I have perused the entire record and documents produced during the pendency of this appeal. The moot point for consideration is whether the trial court has exercised the discretion rightly and judiciously? 10. I am of the considered view that trial court has exercised the jurisdiction rightly and judiciously and impugned order merits to be upheld for the following reasons: 11. As per Commissioners report the defendant No. 1 respondent No. 1 has raised construction of the ground floor ant had also constructed a shed in the suit land wherein he is residing. Whether the orders impugned in the suit passed by the official defendants- respondents are illegal, void, without competence and jurisdiction is to be thrashed out during the trial. As per Commissioners report the defendant No. 1 respondent No. 1 has raised construction of the ground floor ant had also constructed a shed in the suit land wherein he is residing. Whether the orders impugned in the suit passed by the official defendants- respondents are illegal, void, without competence and jurisdiction is to be thrashed out during the trial. But fact of the matter is that the allotment order is a weapon in the armoury of respondent No. 1- defendant No. 1 in order to defend the application for grant of interim relief at this stage. The defendant No. I- respondent No. 1 is not trespasser but is claiming title/right/interest in terms of the said order. Thus it can be said that a prima facie case is in his favour and not in favour of the plaintiffs-appellants. 12. Defendant No. 1- respondent No. 1 has obtained permission and raised the construction as per permission. Thus the observation of the trial court that balance of convenience leans in favour of the defendant No. 1- respondent No. 1 is legally correct and in case the construction so raised is dismantled at this stage or if any interim relief is passed in favour of the plaintiffs-appellants against the defendants-respondents that would cause irreparable loss to the defendant No. 1- respondent No. 1 in the given circumstances of the case. 13. Keeping in view the above discussion, one comes to an inescapable conclusion that all the ingredients which are prerequisite for grant of interim relief are in favour of the respondent No. 1 -defendant No. 1. 14. Viewed thus, I am of the considered view that impugned order merits to be upheld and appeal merits to be dismissed. 15. Accordingly, impugned order is upheld and the appeal is dismissed. However, defendant No. 1- respondent No. 1 has to undertake that he has to demolish the construction so raised, if the plaintiffs succeed in the suit. With these observations this appeal is dismissed along with all connected CMP(s). Parties are directed to appear before the trial court on 24.1 1.2006. Registry is directed to send down the record along with a copy of this order.