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2018 DIGILAW 993 (JK)

Mohamad Shaban Ganai v. Abdul Rashid Bhat

2018-12-18

RASHID ALI DAR

body2018
JUDGMENT : 1. By medium of the appeal, the appellant prays for setting aside the order dated 29-10-2018 passed by the learned Principal District Judge, Budgam in file No. 142/N titled Mohammad Shaban Ganai V/s Abdul Rashid and Ors. 2. Facts giving rise to the filing of the appeal as quoted in memo are that: (i) The appellant has filed a civil original suit before the court of learned Principal District Judge, Budgam for grant of decree of declaration and permanent injunction in respect of suit land measuring 19 Marlas comprises of Surey No. 818 situated at Friends colony, Estate Baghat-i-Kanipora. Alongside the main suit the appellant had filed an application for grant of interim relief. The trial court vide order dated 28-12-2017 passed an exparte order of injunction in favour of the appellant in the application for grant of interim relief where under the respondents were restrained from interfering in the possession of the appellant over the suit land bearing Survey No. 818 situated at Friends Colony, Estate Baghat-i-Kanipora. Thereafter the trial court put the respondents on notice and consequent upon the service the respondents appeared before the trial court and filed their written statement. The trial court thereafter took up the application for interim relief for consideration and heard the arguments therein and finally disposed of the application for interim relief by virtue of order dated 29-10-2018 rejecting the application of the petitioner.. 3. Aggrieved by the said order dated 29-10-2018 (for short impugned order) the appellant challenge the same on the following grounds: (i) That the order impugned dated 29-10-2018 passed by the trial court is liable to be set aside as the trial court has passed the impugned order in clear violation of the legal position established by law for finding out the primafacie case for grant of interim relief. It is in place to submit that the appellant had annexed the copy of the extract of Girdwari with the plaint in which the appellant is recorded as owner and possessor of the suit land and in terms of the Section 31 of the Land Revenue Act presumption of correctness is attached to such entry in terms of the provisions of Land Revenue Act. The trial court has been oblivious of the legal position that it had to judge the apparent strength of the case of the appellant on the basis of the revenue record but the trial court has over stepped its jurisdiction by failing to adhere to such legal position. (ii) That the impugned order passed by the trial court is liable to be set aside as the impugned order is palpably wrong as it has observed by the trial court that the appellant has made suppression of the fact that he has filed a suit in respect of Survey No. 815 which is pending before the Sub Judge (Special Mobile Magistrate) Budgam and such suppression of fact between the same parties has been held to disentitled the appellant for interim relief. This finding of the trial court is not countenanced under law as according to the submissions of the appellant, the appellant had filed a suit against the respondents in respect of Survey No. 815 Min and the suit land was under the threat of invasion of rights of the appellant qua the suit land that is why the appellant ha filed a suit against the respondents qua the suit property and it is wrong on the part of the trial court to hold that the appellant has made suppression of fact before the trial court in respect of the suit. 4. Mr. Kuchay, learned counsel appearing for the appellant submits that in light of the recent Girdwari entries existing in favour of the appellant herein in the year 2017, the learned trial court ought to have at least ordered for maintenance of status quo and should not have vacated the interim assistance granted earlier. In case, the other side was aggrieved of such entry, they had to challenged it before the revenue authorities. The endeavor of the court should be to preserve the lis and not to frustrate the same. It is his further argument that irreparable loss would be caused to the appellant here if the lis is not protected and suit allowed to be tried on the basis of the plea taken in the suit. 5. Per contra, Mr. Wani learned counsel for the respondents submits that trial court has rightly vacated the interim assistance and held the appellant herein not to be entitled to the same. 5. Per contra, Mr. Wani learned counsel for the respondents submits that trial court has rightly vacated the interim assistance and held the appellant herein not to be entitled to the same. In this regard, he made reference of the abstinence on the part of the appellant herein to spell out as to how he could be treated as owner and how the earlier entries continuously made in favour of the respondents had been a weighing factor with the learned trial court to opine that balance of convenience swinging in their favour. His further submission is that a mere stray entry has been held very rightly by the learned trial court to be not sufficient to pass any interim direction. It is further submitted that respondents having right to enjoy property therefore could not be direction to abstain from enjoying it and so the learned trial court has in that view of the matter refrained from invoking the discretionary jurisdiction in favour of the appellant. 6. I have heard learned counsel for the parties and perused the record. 7. It emanates from the perusal of the impugned order that the learned trial judge had found no ground for continuance of interim assistance in light of stand taken by the parties and so vacated the ad-interim assistance granted earlier. The learned trial court has given reasons as to why the interim assistance could not be continued which include the failure on the part of the appellant herein to manifest the case prima facie to be adjudicated at trial. The balance of convenience also has been weighed along with other considerations. 8. Rule regarding interference by the appellate court has been teresly settled by the Hon’ble Apex Court. It requires the appellate court to exercise circumspection in making interference in the use of the discretion by the trial court unless the appellant would be able to show that the said court while granting or withholding injunction has acted unreasonably or capriciously or has ignored relevant facts. Reliance in this regard can be placed on the judgment of the Hon’ble Apex Court in Firm Ishardass Devi Chand Vs. R. B. Prakash Chand AIR 1969 SC 938 , Wander Ltd Vs. Antox India P. Ltd 1990 Supp (1) SCC 727 and Skyline Education Institute (India) P. Ltd. Vs. S. L. Vaswani 2010 (42) PTC 217 (SC). 9. Reliance in this regard can be placed on the judgment of the Hon’ble Apex Court in Firm Ishardass Devi Chand Vs. R. B. Prakash Chand AIR 1969 SC 938 , Wander Ltd Vs. Antox India P. Ltd 1990 Supp (1) SCC 727 and Skyline Education Institute (India) P. Ltd. Vs. S. L. Vaswani 2010 (42) PTC 217 (SC). 9. There is nothing on record to suggest that discretion has been exercised by trial court capriciously or unreasonably in the instant case. The view taken by the learned trial court that the appellant has not been able to satisfy it as to how he was contending to be owner in possession of the property and so having the right to enjoy the property to the exclusion of the respondents herein, cannot be treated misplaced in the facts and circumstances. Similarly, the opinion that the balance of convenience does not swing in favour of the appellant too cannot be erroneous. The trial court also seems to have correctly considered the plea taken by the respondents that they ex-facie had right to enjoy the property and as such cannot be so restrained pending adjudication of the suit, was also proper. Resultantly the appeal is found without any merit and is accordingly dismissed. However, any action taken pending disposal of the lis viz-a-viz suit property shall remain subject to further outcome of the case.