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2013 DIGILAW 653 (JK)

Nazir Ahmad Lone v. Gh. Qasdir Lone

2013-11-12

ALI MOHAMMAD MAGREY

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1. This petition filed under Article 226 of the Constitution of India read with Section 104 of the Constitution of Jammu and Kashmir challenges order dated 31.08.2012 passed by the learned Additional District Judge, Anantnag in civil miscellaneous appeal file no.1V/a, titled Gh. Qadir Lone & anr. v. Bashir Ahmad Lone & others, whereby the learned civil court has directed maintenance of status quo in respect of the suit land till disposal of the main suit. 2. I have heard learned counsel for the parties and considered the matter. 3. The parties are legal heirs of one Ghulam Hassan Lone who died back in 1990. The petitioners' case is that the respondents separated from the joint family during the life time of their father and that the entire 3rd properties of said Ghulam Hassan were portioned between the parties by Srin a gametes and bounds. It is further their case that the respondents filed a false and frivolous suit before the learned Sub-Judge, Bijbehara on the ground that the suit land is un-partitioned and sought a restraint against the petitioners from raising construction thereon. It is stated that the trial court vide order dated 25.11.2011 declined the said relief to the respondents who filed an appeal against the said order before the Court of learned Additional District Judge, Anantnag and the Appellate Court, vide order, dated 31.08.2012, without considering the facts of the case, directed the parties to maiantain status quo with respect to the suit property/land. The petitioners are aggrieved of the said order passed by the learned Additional District Judge, Anantnag. 4. Perusal of the order dated 25.11.2011 passed by the learned trial court reveals that the respondents filed a suit for declaration and partition by metes and bounds in respect of land measuring 21 Kanals, 5 Marias and 01 Sirsai under Khewat no.6 and 25 Kanals, 18 Marias under Khewat No.45 falling under different survey nos. alongwith Shamilat land situated at village Sangam, Tehsil Bijbehara. Alongwith the suit, the respondents have filed an application for ad interim relief wherein they had made two prayers: first, that non-applicants, petitioners herein, be restrained from alienating the suit land; and second, that they be restrained from changing the nature of the suit property. alongwith Shamilat land situated at village Sangam, Tehsil Bijbehara. Alongwith the suit, the respondents have filed an application for ad interim relief wherein they had made two prayers: first, that non-applicants, petitioners herein, be restrained from alienating the suit land; and second, that they be restrained from changing the nature of the suit property. The trial court vide its aforesaid order allowed the first prayer and ordered that `till disposal of the main suit, non-applicants are restrained from alienating suit land in any manner whatsoever'. The second prayer was declined by the trial court. On appeal against the said order refusing to restrain the non-applicants from changing the nature of the suit property, the Additional District Judge, Anantnag, while allowing the appeal, vide its order dated 31.08.2012, ordered that the parties shall maintain status quo in respect of the suit land till disposal of the main suit. It is this order which is challenged in this writ petition. 5. The question is whether this writ petition is maintainable? In view of the law laid down by the Supreme Court, the answer has to be in the negative. The Supreme Court has clearly laid down that in cases of property rights and in disputes between private individuals Writ Court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority. Reference in this regard may be made to the judgment of the Supreme Court in Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329 . In that case, the Supreme Court has traced the law on the subject as laid down by it from 1950 and reflected upon the scope and ambit of powers under Articles 226 and 227 of the Constitution of India and the powers of the Courts to entertain writ petitions against the orders passed by civil courts. 6. In the instant case there is neither any infraction of statute alleged, nor it is the case of the petitioners that the respondents are acting in collusion with any statutory authority. 7. The learned counsel for the respondents has cited and relied upon a Division Bench Judgment of this Court in Kuldip Singh & ors. v. Krishna Devi & ors., LPAOW no.30/2013, rendered on 16.04.2013, wherein the same ratio has been laid down. 8. 7. The learned counsel for the respondents has cited and relied upon a Division Bench Judgment of this Court in Kuldip Singh & ors. v. Krishna Devi & ors., LPAOW no.30/2013, rendered on 16.04.2013, wherein the same ratio has been laid down. 8. The petition is, accordingly, dismissed as unnecessary, alongwith the connected CMP. Interim direction, if any, passed and subsisting shall stand vacated. No order as to costs.