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2015 DIGILAW 50 (JK)

Begum Bibi v. Rohit Mishra

2015-02-25

MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J.:- 1. Suit for permanent prohibitory injunction captioned "Rohit Mishra and Anr. v. Nishat Khan alias Pappu and others" has been filed, as such, is pending before the Court of 1st Civil Subordinate Judge (Municipal Magistrate), Jammu. Alongside suit, an application for grant of temporary injunction has been filed. Vide order dated 26th April, 2008, the learned trial Court has directed the non-applicants (defendants) not to interfere with the possession of the plaintiffs over the suit land i.e. 9 kanals and 6 marlas covered by Survey No. 2889 situated at Village Kot., Tehsil and District Jammu. After objections were filed, the learned trial Court vide its order dated 17.04.2009, made the restraint order absolute. Dissatisfied therewith, the petitioners (defendants) filed the Civil 1st Appeal before the Court of learned District Judge, Jammu which had assigned the same for disposal to learned 1st Additional District Judge, Jammu. Same stands dismissed vide detailed order dated 09.11.2009. 2. Earlier against such orders, remedy of revision in terms of Section 115 CPC was available but after amendment, proviso to Section 115 CPC provides that revision will lie only against the order which has the effect of termination of the suit or other proceedings or against the orders which are final or the orders which if would have been passed in favour of the aggrieved party, would have resulted in termination of the suit proceedings. The Hon'ble Apex Court in the judgment rendered in the case of Surya Dev Rai and others, reported as (2003) 6 SCC 675 , has held that even against the judgment passed in Miscellaneous Appeal arising out of the order of injunction, revision will not lie. It is in the same background, the petitioners (defendants) have filed the instant writ petition. Such petitions are to be entertained in exceptional cases so as to avoid any effort of negating the effect of amendment in Section 115 CPC and in turn to avoid unnecessary protraction in the suit proceedings. 3. Respondents in fact have become the owners on the strength of the Sale Deeds executed in their favour. Such petitions are to be entertained in exceptional cases so as to avoid any effort of negating the effect of amendment in Section 115 CPC and in turn to avoid unnecessary protraction in the suit proceedings. 3. Respondents in fact have become the owners on the strength of the Sale Deeds executed in their favour. According to the learned counsel for the petitioners (defendants), the Sale Deeds so executed in favour of the respondents stand challenged by the medium of a separate, suit wherein the said Sale Deeds have been prayed to be declared as null and void or in alternative the petitioners (defendants) shall be held entitled to purchase the same by exercising the right of prior purchase. 4. The short point which was to be considered by the trial Court as well as the appellate Court is as to whether the plaintiffs had any prima facie case so as to issue the order of injunction and to maintain the same; the answer has to be in affirmative. 5. Perusal of the trial Court record is suggestive of the fact that on 28th March, 2003, one Rashid S/o. Keema has sold the land measuring 4 kanals bearing Survey No. 2889 min in favour of Rohit Mishra, respondent No. 1 and vide another Sale Deed dated 12th August, 2005, Nazir Ahmed S/o. Keema has sold 1 kanal and 6 marlas of land covered by Survey No. 2889 min situated at Village Kot in favour of Rohit Mishra and again vide third Sale Deed dated 28th March, 2003, Mohd. Shafi S/o. Keema has sold 4 kanals of land covered by Survey No. 2889 min situated at Village Kot in favour of Rahul Mishra, respondent No. 2. Extract of Girdawari for the years 2003 to 2008 available on the trial Court record would reveal that Keema was the owner of 9 kanals and 6 marlas of land covered by Survey No. 2889 min. Same was recorded in possession of Som Dutt as owner due to purchase. In the year 2003, when the land was sold in pursuance to the above referred three Sale Deeds duly registered three mutations bearing Nos. 4951, 4952 and 664 have been attested and in the years 2003, 2006 and 2007 said mutations have been given effect and reflected in the Khasra Girdawan, as such, respondent Nos. In the year 2003, when the land was sold in pursuance to the above referred three Sale Deeds duly registered three mutations bearing Nos. 4951, 4952 and 664 have been attested and in the years 2003, 2006 and 2007 said mutations have been given effect and reflected in the Khasra Girdawan, as such, respondent Nos. 1 & 2 (Vendees), are shown in possession of the suit land. The petitioners and respondent Nos. 3 to 7 when started causing interference with the possession as alleged, respondent Nos. 1 & 2 filed the Suit for permanent prohibitory injunction. 6. Prima facie, petitioners and respondent Nos. 3 to 7 are not shown in possession. Neither there is any such documents supporting their claim nor entries in the Khasra Girdawari are in their favour. 7. Visualizing the prima facie weakness of the case, now what has been done is that supplementary affidavit, in addition thereto, a report prepared by Naib Tehsildar dated 22.05.09 has been filed. In para 7 of the said report, it has been mentioned that the suit property should not have been transferred to Keema on the basis of which Keema has sold the land. In fact, it is the legal heirs of Keema, who are entitled to the said land. 8. So far as the question of determination of title and the validity of the Sale Deeds is concerned, same are the questions for trial. While granting temporary injunction, the Court is required to be satisfied on three celebrated principles which the trial Court and the Appellate Court have appreciated properly. 9. Keeping in view the scope of the writ petition or petition under Section 104 of the State Constitution, there is hardly any scope for interference. The trial Court and the Appellate Court concurrently have concluded that it is the respondent Nos. 1 & 2, who's prima facie strength of the case is supported by the records. 10. The observations made by the learned trial Court or by the Appellate Court and the observations made hereinabove, shall not in any manner be construed to be an expression of opinion on the merits of the case. The suit out of which this petition arises or the suits which have been filed challenging the Sale Deeds shall not get in any manner affected by the observations as made hereinabove. The suit out of which this petition arises or the suits which have been filed challenging the Sale Deeds shall not get in any manner affected by the observations as made hereinabove. All the suits pertaining to the suit property as are pending shall be dealt with in accordance with law uninfluenced by the disposal of this writ petition. 11. Writ petition being without any merit, is accordingly, dismissed. Copy of the order along with trial Court record be send to the trial Court forthwith where the parties shall appear on 04.03.2015.