Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 40 (JK)

Mohd. Umar Nizami v. Ab. Qayoom Nizami

2014-02-06

MOHAMMAD YAQOOB MIR

body2014
1. This Civil 1st Miscellaneous Appeal is directed against the order passed by the Court of 2nd Additional District Judge, Jammu dated 23rd August, 2012, in terms whereof, till disposal of the suit, status quo has been directed to be maintained, vis-a-vis, alienation of the suit property and the awarded amount. Further, application filed by Haji Mohammad Abdullah-appellant No. 2 for vacation of order dated 08.08.2006 and for permission to raise further construction of the Hotel building has been dismissed. 2. The factual matrix precisely has to be noticed for effectual adjudication of this Appeal. 3. Respondent Nos. 1 and 2 (Plaintiffs) have filed suit for declaration, partition, injunction and for settlement of accounts titled Abdul Qayoom Nizami and anr. v. Mohammad Umar Nizami and others. Suit property include land measuring 10 kanals 11 marlas covered by Survey No. old 127-min and new 729. Out of this parcel of land, appellant-Mohd Umar Nizami, one of the defendants in the suit, has executed a General Power of Attorney in favour of appellant No. 2-Haji Mohammad Abdulla, vis-a-vis, 12 marlas of land, in terms whereof, appellant No. 2 has been delivered the possession of these 12 marlas of land and has been authorized to raise any type of construction further to do all whatever shall be required to be done by the appellant. The said Power of Attorney has been executed on 10th December, 2010. On the strength of this Power of Attorney, appellant No. 2 has raised the construction of a Hotel building to the level of first floor and only thereafter an application has been filed by the plaintiffs seeking restraint order as against appellant No. 2, who was not arrayed as a party defendant. 4. Initially, alongside suit, application for grant of injunction has been filed. On consideration whereof, trial Court has passed the order dated 08.08.2006, in terms whereof, defendant Nos. 1 to 17 (private parties) have been directed to maintain status quo qua the suit property till next date of hearing. As against the official defendants, only notice has been issued. Said direction has been extended on the adjourned dates of hearing, such as, 31.08.2006, 28.09.2006, 30.10.2006 and 08.01.2007 which was to remain effective till 22.02.2007. From 22.02.2007, interim direction has not been extended. 5. As against the official defendants, only notice has been issued. Said direction has been extended on the adjourned dates of hearing, such as, 31.08.2006, 28.09.2006, 30.10.2006 and 08.01.2007 which was to remain effective till 22.02.2007. From 22.02.2007, interim direction has not been extended. 5. One more application has been moved so as to seek restraint order against the State from disbursing the compensation, vis-a-vis, acquired land which has also been granted. 6. In the order impugned, it has been mentioned that the order of status quo is confined to alienation of the suit property. Learned trial Court has observed that co-sharer or anybody claiming through him, occupation of a portion of a joint holding can protect his possession from interference by anybody including other co-sharer. The possession of Haji Mohammad Abdulla is permissive. He has stepped into the shoes of defendant (appellant No. 1 herein), so is in occupation of the land on his behalf but has to await till suit property including the land is partitioned by metes and bounds. He cannot be permitted to raise any kind of construction over the portion in his possession of the suit property, till partition by metes and bounds; otherwise, it would be detrimental to the interest of other co-sharer. 7. Learned counsel for the appellants would contend that when co-sharer in effect is in possession of the portion of suit property, finally, its partition is permitted still he can retain the portion of land occupied. However, only bar is that he must not be in possession of more than the share. He would further submit that appellant No. 1 has executed valid Power of Attorney in favour of appellant No.2, who has raised the construction because possession was delivered to him of 12 marlas of land which was exclusively prior thereto in possession of appellant No. 1. The respondents (Plaintiffs) did not raise any objection till completion of construction of the first floor. Even some of the material required for the construction was purchased by appellant No. 2 from plaintiff No. 1. When he started purchasing the material from some other concern that infact became the cause for seeking restraint order. 8. The respondents (Plaintiffs) did not raise any objection till completion of construction of the first floor. Even some of the material required for the construction was purchased by appellant No. 2 from plaintiff No. 1. When he started purchasing the material from some other concern that infact became the cause for seeking restraint order. 8. In opposition, learned counsel for the respondents would submit that appellant No. 2 has raised the construction on the strength of the interim order which he has obtained from the Court of Munsiff, Ramban in a suit which was filed by him titled Mohd. Abdullah v. Qayoom Nizami, instituted on 13th June, 2012, which, in view of non-prosecution, stand consigned to records on 03.10.2012. 9. Be that as it may, the position is that appellant No. 2, on the strength of the valid irrevocable Power of Attorney, has raised the construction to the knowledge of the respondents (Plaintiffs). Furthermore, then, no prohibitory order was in force. 10. It was contended by learned counsel for the respondents (Plaintiffs) that Mohd Abdullah-appellant No. 2 has no right to file appeal as he was not a party to the suit but the submission is without any substance because (i) He is the Attorney holder and (ii) he has filed an application which has been rejected, therefore, infact he is a party-defendant, so has every right to challenge the order. That apart, appellant No. 1 is otherwise a party to the suit, who too has challenged the order. Therefore, the appeal is competent. 11. It is trite that a co-sharer can raise the construction and use the parcel of land which is in his possession out of the joint property. The only embargo is that (i) he must not be in possession of more than his share and (ii) he must not raise construction in a manner which will dimmish the value of the land. Same position has been settled in the judgment rendered by this Court in CIMA No. 89/2008 titled Mohammad Akram Siah. v. State and ors; 2010 (2) JKJ 297 [HC] : 2009 (II) SLJ 466. 12. In the case titled Rahti v. Wali Ganai and ors, reported as AIR 1966 J&K 39 : JKJ Soft JKJ/15139, Division Bench of Court, has held as under:- "11. v. State and ors; 2010 (2) JKJ 297 [HC] : 2009 (II) SLJ 466. 12. In the case titled Rahti v. Wali Ganai and ors, reported as AIR 1966 J&K 39 : JKJ Soft JKJ/15139, Division Bench of Court, has held as under:- "11. Analysing the effect of the authorities cited above, the following legal propositions emerge: (i) That a co-sharer cannot transfer a specific portion of his share in any particular survey number of Khasra Number if he is not in actual possession of any portion of the joint holding. (ii) That where a co-sharer is in exclusive possession of a piece of joint holding not exceeding his share either by convenience or without any hindrance from other co-sharer, such co-sharer can transfer this interest but in such a case the transfer will be subject to the rights of other co-sharers at the time of partition. Moreover, in such cases, the co-sharer is entitled to transfer only his share in the holding and cannot exceed his share. (iii) Where a co-sharer is in exclusive possession of a portion of the land, he is entitled to remain in possession of the same and his possession cannot be disturbed at the instance of others cosharers who can only do so by seeking partition." 13. It is nowhere projected that raising of the construction of a Hotel building in any manner diminishes the value of the property. Needless to say, when the property is joint and un-partitioned and it may take long time for partition, would that mean that the co-sharer even if requires the portion of land in possession for residential house, will not be permitted to raise construction, of course, subject to conditions. If answer is no, then repercussion would be totally to the disadvantage of the co-sharers. 14. Learned counsel for the respondents would further contend that the construction raised on the strength of the Court order which was obtained with the commencement of the vacations, therefore, plaintiffs/respondents could not stop the construction. All such pleas have not been raised nor considered by the trial Court and neither referred to in the order impugned. 15. 14. Learned counsel for the respondents would further contend that the construction raised on the strength of the Court order which was obtained with the commencement of the vacations, therefore, plaintiffs/respondents could not stop the construction. All such pleas have not been raised nor considered by the trial Court and neither referred to in the order impugned. 15. Keeping in view the above facts and circumstances of the case trial Court does not appear to have appreciated all aspects of the case and has not arrayed appellant No. 2 as party-defendant when he was required to be impleaded as party defendant Appellant No. 2 now shall stand impleaded as defendant in the suit. 16. Order impugned, in the aforesaid background is not sustainable, as such set aside. Case is remanded back to the trial Court for deciding the application for injunction and all other ancillary applications preferably within a period of one month from the date parties cause appearance before the trial Court. Until disposal of such application, status quo shall be maintained. If the application for injunction is not disposed of within one month, reasons for delay in disposal shall be recorded. 17. The observations made hereinabove, shall not in any manner, prejudice the mind of the Trial Court while deciding the suit and applications on merits. 18. Learned counsel for the parties are directed to ensure appearance of the parties either in person or through their counsel before the trial Court on 17th February, 2014. 19. Copy of the order along with trial Court records be sent back forthwith. 20. Appeal allowed as above.