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2018 DIGILAW 69 (JK)

Aniece Chowdhary v. Javed Chowdhary

2018-02-06

ALOK ARADHE

body2018
JUDGMENT : Alok Aradhe, J. The petition is admitted to hearing. With consent of the parties, the same is heard finally. 1. In this petition under Section 104 of the Constitution of the State of Jammu and Kashmir the petitioner inter alia has assailed the validity of the order dated 31.07.2007 passed by the Principal District Judge, Jammu by which ad interim order dated 08.12.2006 passed by the Trial Court has been set aside. 2. Facts giving rise to the filing of this petition briefly stated are that the petitioner has filed a suit seeking relief of permanent prohibitory injunction restraining the respondents from interfering in the peaceful possession of the petitioner over the land admeasuring 42 kanals 15 marlas forming part of Khasra No. 138 (17 kanals 12 marlas) Khasra No. 280 (19 kanals 06 marlas), Khasra No. 281 (03 kanals 11 marlas) and Khasra No. 282 (2 kanals 6 marlas) situate at village Birpur, Tehsil Samba, District Jammu. The claim of the petitioner is based on the ground that his father was in exclusive possession of land as owner. It is the case of the petitioner that the respondent-1 had committed certain omissions and commissions which were unbecoming of a faithful son. Therefore, father of the petitioner executed a deed dated 16.03.2006 which was registered on 17.03.2006 by the Sub-Registrar, Jammu by which the respondent-1 was disowned and declared, not entitled to any property belonging to the father of the petitioner. It is further submitted that the father of the petitioner had also executed a Will, which was registered on 17.03.2006 by which the land admeasuring 42 kanals 15 marlas was bequeathed in favour of the petitioner. It was further stated that the father of the petitioner had executed a power of attorney in his favour on 17.03.2006 to look after and manage the affairs of the land in question. The father of the petitioner expired on 09.04.2006. However, the respondents started interfering with the possession of the land in possession of the petitioner. Accordingly, the petitioner filed the suit seeking the relief as stated supra. 3. The respondents filed the writ statement in which inter alia it was pleaded that the power of attorney lapsed the death of the father of the petitioner, namely, Fathe Ali Chowdhary, on 09.04.2006. Accordingly, the petitioner filed the suit seeking the relief as stated supra. 3. The respondents filed the writ statement in which inter alia it was pleaded that the power of attorney lapsed the death of the father of the petitioner, namely, Fathe Ali Chowdhary, on 09.04.2006. It was further submitted that the petitioner was never put in possession of the suit land and no documentary evidence was placed on record to show that he was in possession of the suit land. 4. The Trial Court by an order dated 08.12.2006 allowed the application for interim injunction filed by the petitioner. The Trial Court by placing reliance on the power of attorney as well as Will, inter alia, held that the plaintiff is in possession of the land in question. It was further held that the plaintiffs father was in possession of the land and handed over the possession of the same to the petitioner. The Trial Court further held that there is a serious question to be tried in the suit. Accordingly, it was held that the petitioner has made out a prima facie case and the balance of convenience also lies in his favour and in case the petitioner is dispossessed, he will suffer an irreparable loss. The aforesaid order was challenged by the respondents in an appeal before the Principal District Judge, Jammu, the Lower Appellate Court. The Lower Appellate Court vide order dated 31.07.2007 set aside the order of the Trial Court dated 08.12.2006. The Lower Appellate Court inter alia held that the plaintiff has no prima facie case to go to the Trial Court, on the ground that he came in exclusive possession of the suit land in the life time of his father by virtue of Will or the power of attorney executed by the father of the petitioner on 17.03.2006. It was further held that balance of convenience also does not lie in favour of the plaintiff. Accordingly, the order passed by the Trial Court was reversed. In the aforesaid factual background, this petitioner has been filed. 5. Learned counsel for the petitioner submitted that the Lower Appellate Court grossly erred in interfering with the well reasoned order passed by the Trial Court. Accordingly, the order passed by the Trial Court was reversed. In the aforesaid factual background, this petitioner has been filed. 5. Learned counsel for the petitioner submitted that the Lower Appellate Court grossly erred in interfering with the well reasoned order passed by the Trial Court. It ought to have been appreciated by the Lower Trial Court that the father of the petitioner had executed a power of attorney in his favour and thereafter had executed a Will dated 17.03.2006. After execution of the Will, the petitioner became owner and he was in possession of the land in question. It is further submitted that the Lower Appellate Court ought not to have been interfered with the well reasoned order of the Trial Court. In support of his submissions, learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Mysore State Road Transport Co. vs. Mirja Khasim Ali Beg and Anr., AIR 1977 SC 747 ; Full Bench decision of Allahabad High Court in the case of Babu Ram Ashok Kumar and Anr. vs. Antarim Zila Parishad, AIR 1964 (Allahabad) 534 and decision of this High Court in the case of J and K State Forest Corpn. and Ors. vs. Abdul Hamid Thoker and Anr., AIR 2004 J and K 130. 6. On the other hand, learned counsel for the respondents submitted that power of attorney did not survive after the death of the father of the petitioner. It was further submitted that Will did not mention that the possession was handed over to the petitioner and no documentary evidence was placed on record to the effect that the petitioner was in possession of the suit land. It was further submitted that the findings recorded by the Lower Appellate Court are based on meticulous appreciation of evidence and by no stretch of imagination can be said to be either arbitrary or perverse, warranting interference of this Court in exercise of power under supervisory jurisdiction of this Court. In support of his submissions, learned counsel for the respondents referred to decision of this Court in the case of Ashraf Khan vs. Shadi Khan and Ors., 2014 (1) JKJ 352 [HC]. 7. I have considered the submissions made by the learned counsel for the parties and have perused the record. In support of his submissions, learned counsel for the respondents referred to decision of this Court in the case of Ashraf Khan vs. Shadi Khan and Ors., 2014 (1) JKJ 352 [HC]. 7. I have considered the submissions made by the learned counsel for the parties and have perused the record. From the perusal of the record and the pleadings in the plaint, it is evident that the plaintiff in unequivocal terms has stated that he is in possession of the suit land. The power of attorney was executed in favour of the petitioner on 17.03.2006. In the aforesaid power of attorney, the plaintiffs father has stated that he is the owner of the land in question situate at village Birpur. The petitioner came to be in possession of the aforesaid land on the basis of the power of attorney. It is pertinent to note that it is not the case of the parties that their father owned any other land except suit land in village Birpur. Thereafter, a Will was executed in his favour on 17.03.2006 and the father of the petitioner expired on 09.04.2006. On the death of the father of the petitioner, the Will became operative and the petitioner continued to be in possession of the land in dispute. The Trial Court on the basis of the meticulous appreciation of evidence recorded that all the three ingredients for grant of injunction were made out by the plaintiff. The Lower Appellate Court grossly erred m interfering with the well reasoned order of the Trial Court merely on the ground that the petitioner was not in exclusive possession of the land in question on the basis of the Will or the power of attorney. It is well settled in law that when the Trial Court exercises the jurisdiction to deal with the prayer for injunction on sound principles of law, the Lower Appellate Court should be slow to interfere with the exercise of such discretion by the Trial Court. In this connection, reference may be made to the decision of the M.P. High Court in the case reported in 1972 MPLJ 78 as well as decision of this Court in the case of Jammu and Kashmir Forest Corporation (supra). The Lower Appellate Court, therefore, clearly exceeded its jurisdiction in interfering with the well reasoned order passed by the Trial court. 8. The Lower Appellate Court, therefore, clearly exceeded its jurisdiction in interfering with the well reasoned order passed by the Trial court. 8. In view of the preceding analysis, the impugned order dated 31.07.2007 passed by the Lower Appellate Court cannot be sustained in the eye of law. It is accordingly quashed. Taking into the fact that the Civil Suit was instituted in the year 2007, the Trial court shall make an endeavour to dispose of the suit as expeditiously as possible. Needless to state that the parties shall co-operate with the Trial Court for early disposal of the suit and shall not seek any unnecessary adjournments. Let the record of the Trial Court be sent back forthwith. 9. This petition is disposed of along with connect MP.