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2016 DIGILAW 38 (JK)

A. B. Qayoom v. Wahida Begum

2016-02-11

BANSI LAL BHAT

body2016
JUDGMENT : BANSI LAL BHAT, J. 1. This petition filed under Section 104 of Constitution of Jammu and Kashmir corresponding to Article 227 of Constitution of India seeks setting aside of order dated 09.02.2015 passed by learned District Judge Bhaderwah by virtue whereof appeal preferred against order of ad-interim injunction dated 15.09.2014 passed by Munsiff Gandoh in Civil Suit titled Abdul Qayoom and Others vs. Wahida Begum has been allowed, application for temporary injunction has been dismissed and respondent No. 1 has been directed to file an undertaking to the effect that in the event of present petitioner succeeding in his claim in the suit, respondent No. 1 shall pull down the structure and hand over vacant possession of the subject matter of the suit the present petitioner. 2. It appears that the present petitioner filed a suit seeking declaration that the Gift Deed dated 04.06.2013 executed by respondent No. 2 in favour of respondent No. 1 in respect of land measuring 1 kanal 10 marlas falling under khasra No. 161 situated at village Bhatyas Tehsil Gandoh District Doda was null and void and inoperative as against rights of petitioner who also set up a claim for right of prior purchase over the suit land together with proforma respondent. Petitioner also sought relief of possession of the subject matter of suit and also prayed for a decree of permanent injunction restraining respondent No. 1 from raising construction upon or changing the nature of subject matter of the suit. Petitioner claimed that he along with respondent No. 2 and the proforma respondent were co-sharers and in a oral private partition, the subject matter of suit had been settled on respondent No. 2 who had sold the same to respondent No. 1 through the medium of registered Sale Deed dated 04.06.2013 camouflaging it as a Gift Deed to defraud the Sub-Registrar and also defeat rights of preemption vested in petitioner and proforma respondent. It is claimed that respondent No. 1 was not related to proforma respondent and assertion in this respect in the plaint was false. It is further claimed that respondent No. 1 intended to raise construction on the subject matter of suit which was an agricultural land. Respondent Nos. 1 and 2 contested the suit by denying the allegations in the plaint. It is further claimed that respondent No. 1 intended to raise construction on the subject matter of suit which was an agricultural land. Respondent Nos. 1 and 2 contested the suit by denying the allegations in the plaint. Denying the factum of petitioner being co-sharer of the subject matter of the suit along with respondent No. 2 and proforma respondent, it was pleaded that in the private partition dating back to three decades the subject matter of suit had fallen to the share of respondent No. 2 who was competent to alienate it in favour of respondent No. 1. Denying the allegation of Gift Deed dated 04.06.2013 as a sham transaction in the nature of sale it was pleaded that the Gift Deed was validly executed and there was no sale. Along side the suit petitioner filed an application for grant of temporary injunction. Learned Munsiff, trying the Suit, was of the view that the petitioner had made out a prima-facie case for relief in his favour, balance of convince too was in his favour and that he would suffer irreparable loss if preventing relief is not granted. Thus, order 15.09.2014 temporarily restraining respondent No. 1 came to be passed. Same was assailed in appeal preferred before learned District Judge Bhaderwah who found that the petitioner, respondent No. 2 and the proforma respondent were real brothers and in record of Girdawari all the three brothers were reflected as being in possession of their separate shares allotted under an oral family partition. The appellate Court found that joint status stood severed and the subject matter of suit had fallen to the share of respondent No. 2 which was duly reflected in record of Girdawari. Learned District Judge also found that the petitioner had admitted the factum of suit land having fallen to the share of respondent No. 2 in his suit. The Appellate Court was also of the view that the preferential right of prior purchase being a weak right could be defeated in a legitimate manner. Thus, the appellate Court was of the view that there was no prima-facie case made out in favour of the petitioner. However, as a matter of abundant caution, while allowing the appeal, it insisted upon filing of an undertaking by respondent No. 1 to safeguard the legitimate interests, if any, of the petitioner. 3. Heard learned counsel for the parties and perused the record. However, as a matter of abundant caution, while allowing the appeal, it insisted upon filing of an undertaking by respondent No. 1 to safeguard the legitimate interests, if any, of the petitioner. 3. Heard learned counsel for the parties and perused the record. 4. On behalf of petitioner it is contended that the impugned order passed by learned District Judge in appeal is perverse, that there is no formal partition of the property between the three brothers and that the undertaking does not safeguard the interests of petitioner. Per contra, contesting respondents maintain that with severance of joint status the subject matter having become the exclusive property of respondent No. 2, petitioner could not stake his claim for adjudging of the Gift Deed as void or invoke preferential right of prior purchase. It is further contended that there being admission in regard to factum of partition and the subject matter having fallen to the share of respondent No. 2, lis before the Trial Court would not lie. It is further contended that the suit has already been dismissed for non-prosecution. Petitioner, however, claims that motion for restoration of dismissed lis is pending consideration before the Trial Court. 5. Petitioner has invoked supervisory jurisdiction of this Court which can be exercised only in very exceptional circumstances to keep the Courts within bounds of their authority and not for correcting mere errors. The supervisory powers may be exercised in cases occasioning grave injustice or, failure of justice such as when (i) the Court has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. In exercise of supervisory jurisdiction the High Court may not only quash the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant. It may substitute a decision of its own in place of impugned decision. The supervisory jurisdiction may be exercised suo moto as well. Power of superintendence vested in this Court under Section 104 of Constitution of Jammu and Kashmir corresponding to Article 227 of Constitution of India can be exercised when manifest miscarriage of justice has been occasioned. It may substitute a decision of its own in place of impugned decision. The supervisory jurisdiction may be exercised suo moto as well. Power of superintendence vested in this Court under Section 104 of Constitution of Jammu and Kashmir corresponding to Article 227 of Constitution of India can be exercised when manifest miscarriage of justice has been occasioned. However, such power cannot be exercised to correct a mistake of fact and of law. In a recent pronouncement, titled Radhey Shyam and Another vs. Chhabi Nath and Others, 2015 AIR (SC) 3269, a three Judge Bench of the Hon'ble Apex Court, while dealing with the distinctions in exercise of power between Article 226 and 227 of Constitution of India held that the judicial orders of Civil Courts are not amenable to a writ of certiorari under Article 226 that jurisdiction under Article 227 is distinct from jurisdiction under Article 226. Contrary view in Surya Dev Rai has been overruled that despite curtailment of revisional jurisdiction under Section 115 CPC, jurisdiction of the High Court under Article 227 remains unaffected. The Hon'ble Apex Court further held that it was wrong to assume that the jurisdiction under Article 227 has been expanded. It reiterated the view taken in earlier judgments that where remedy for filing a revision has been expressly barred under Section 115 CPC, a petition under Article 227 would lie. Where a Trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal has been rejected and the revisional remedy is barred, petition under Article 227 will lie. Exercise of supervisory jurisdiction, however, would rest upon the three tests referred to here in above. 6. Adverting to the facts of instant case, be it seen that the finding recorded by the Appellate Court on the basis of revenue record that the joint status among the three brothers including the petitioner had been severed qua the subject matter of the suit before Trial Court and that the private partition had resulted in settlement of the subject matter in favour of respondent No. 2 which fact had been admitted by the petitioner before the Trial Court, cannot be termed erroneous, much-less, perverse. Equally true is the observation of Appellate Court that with severance of the joint status petitioner ceased to be a co-sharer and could not invoke preferential right of prior purchase which could otherwise also be defeated by all legitimate means. This finding is further reinforced by the admission of petitioner in his pleadings and he is estoped from retracting the same. Viewed thus, there is no failure of justice. The instant petition is doomed to fail. 7. There being no merit in the petition, the same is dismissed.