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2021 DIGILAW 481 (JK)

Parshotam Lal v. Mohd. Rafiq

2021-09-16

JAVED IQBAL WANI

body2021
Order : Javed Iqbal Wani, J. 1. The instant petitions are arising out of one and the same immovable property comprising of 04 Kanal falling under Khasra No. 178 new situated at Village Chack Jaggar (Marh), Jammu, therefore, both the petitions are taken up for final disposal at this stage with the consent of the counsel for the parties. OW 104 No.29/2015 1. Supervisory jurisdiction is being invoked by the petitioners under Article 227 of the Constitution, while throwing challenge to orders dated 07.02.2013 and 06.02.2015 ( for brevity ‘impugned order’) passed by City Judge, Jammu ( for brevity ‘the trial court’) and 1st Additional District Judge, Jammu ( for brevity ‘appellate court’) in case titled ‘Parshotam Lal and others vs. Mohd. Rafiq and others.’ 2. A civil suit for permanent prohibitory injunction came to be filed by the respondents herein being plaintiffs before the trial court against the petitioners herein being defendants before the trial court, in respect of land claimed to have been purchased by the respondents herein pursuant to a sale deed dated 12.06.1981, measuring 04 Kanal falling under Khasra No. 51 min old (178 new) situated at Village Chack Jaggar (Marh) Tehsil & District, Jammu. The application for interim relief accompanying the suit came to be disposed of by the trial court in terms of order dated 07.12.2013, restraining the petitioners herein from interfering into the possession of the respondents herein over the suit land. 3. Aggrieved of the order dated 07.12.2013 passed by the trial court, petitioners herein challenged the same in an appeal before the appellate court, which appeal came to be dismissed vide order dated 06.02.2015 upholding the order of the trial court dated 07.12.2013. 4. 3. Aggrieved of the order dated 07.12.2013 passed by the trial court, petitioners herein challenged the same in an appeal before the appellate court, which appeal came to be dismissed vide order dated 06.02.2015 upholding the order of the trial court dated 07.12.2013. 4. The petitioners herein question both the order of the trial court and appellate court dated 07.12.1013 and 06.02.2015 in the instant petition, inter alia on the grounds that firstly the court below committed a grave illegality and did not appreciate three cardinal principles of law for grant of injunction and caused failure of justice and did not exercise jurisdiction vested in it and in fact failed to exercise jurisdiction, causing failure of justice while passing the impugned orders and that both the courts below committed grave illegality in the process and in fact did not appreciate the reports of the Revenue Field Agencies, Naib-Tehsildar and Tehsildar as also the provisions of Section 56 of the Specific Relief, Act and that the sale deed pursuant to which the respondents herein purchased the land in question in fact had been a paper sale deeds and that the respondents despite the execution of the sale deeds were never in possession of the land in question, when in fact the petitioners had been in possession of the land in question for more than four decades. 5. Per contra the respondents have filed objections, wherein the contention raised and grounds urged by the petitioners in the petition are resisted and controverted. The respondents in the objections have contended that the petition of the petitioners is not maintainable in its present form. 5. Per contra the respondents have filed objections, wherein the contention raised and grounds urged by the petitioners in the petition are resisted and controverted. The respondents in the objections have contended that the petition of the petitioners is not maintainable in its present form. It is further contended that the respondents have purchased the land in question validly and legally pursuant to sale deed dated 12.06.1981 and had been ever since in physical possession of the said land and that a mutation of ownership rights of the land in question has been attested in their favour vide mutation No. 125 dated 07.11.1981 and that upon settlement process the Khasra No. 178 came to be assigned to the land in question and that the possession of the respondents over the land is reflected in Khasra Girdawari since 1981 and that the respondents have been paying charges for irrigation of the land in question since 1981, after execution of the sale deeds and that the petitioners have no right, title, interest or concern with the land in question or to interfere thereof or else to encroach thereupon the same. The impugned orders are being defended by the respondents on the premise that same have been passed by the courts below validly and legally in accordance with law. It is further contended in the objections that the petitioners have been making attempts to grab the land in question from the respondents with malafide intentions with the aid of the revenue field agencies. Heard learned counsel for the parties and perused the record. 6. Before adverting to the issues involved in the instant petition, it would be appropriate and advantageous to refer to the nature, scope and object of injunctions enshrine in Order 39 of CPC hereunder:- Rule 1 of Order 39 of the Code enables a court to grant temporary injunction in the following cases: (i) Where the disputed property is in danger of being wasted, damaged or alienated by any party to the suit, or is wrongfully sold in execution of a decree; (ii) (ii) Where the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors; (iii) (iii) Where the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the disputed property. Rule 1 of Order 39 has to be read with Rule 2 of Order 39 as also clause (c) of Section 94. So temporary injunction can also be granted in the following cases: (i) Where the defendant is about to commit breach of contract, or cause other injury (Or.39, R.2); (ii) Where grant of temporary injunction is necessary to prevent the ends of justice being defeated [S.94(c)].” 7. As is evident from above, an interim or temporary injunction/relief is a judicial remedy by which a person is ordered to refrain from doing or to do a particular act or thing. 8. A reference to the following judgments of the Apex Court would also be relevant and germane herein passed in case titled “Dalpat Kumar and another Vs. Prahlad Singh and Others, reported in 1992 (1) SCC 719 , wherein following has been provided at paras 4 and 5:- “4……..……..……..Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court’s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. 5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. 5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 9. Further Apex court in case titled as “Gujarat Bottling Co. Ltd. Vs. Coca Cola Co. reported in 1995 (5) SCC 545 , has observed following qua interim-injunctions:- “In the leading case of Gujarat Bottling Co. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.” 9. Further Apex court in case titled as “Gujarat Bottling Co. Ltd. Vs. Coca Cola Co. reported in 1995 (5) SCC 545 , has observed following qua interim-injunctions:- “In the leading case of Gujarat Bottling Co. Ltd. V. Coca Cola co., the Apex Court observed that the decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.” 10. Keeping in mind the above legal position, now the issues raised in the petition may be addressed. 11. Indisputably, the respondents have purchased the land in question pursuant to the sale deeds executed on 12.06.1981. Mutation also stand attested in the relevant revenue records in their favour. Thereafter, the petitioners as against the said material /record of the respondents placed before the courts below have denied the ownership and possession of the respondents qua the land in question, merely on the basis of entries recorded in revenue records reflecting therein predecessor-in-interest of the petitioners Om Parkash and his father in possession of the land in question as also a report of the revenue officials including receipts of Aabana/Water Tax and report of revenue official thereof. 12. The possession of title deed in respect of an immovable property in law is deemed to be the perfect title of the property held by such person. The possession of such property is also deemed to be with the person holding the said title deeds. 12. The possession of title deed in respect of an immovable property in law is deemed to be the perfect title of the property held by such person. The possession of such property is also deemed to be with the person holding the said title deeds. The trial court while considering the facts and circumstances of the case has exercised discretion qua the grant of interim relief validly and legally, so also has the appellate court tested the validity of the order of the trial court in terms of the impugned order dated 06.02.2015 validly and legally and rightly upheld the same. 13. The object of making an order of interim relief in law is to evolve a workable formula required in a particular situation keeping in mind pros and cons of the matter. The trial court has rightly found the respondents herein having a prima facie case and balance of convenience in their favour, as also has rightly weighed competing possibilities/probabilities of likelihood of injury the respondent-plaintiffs may suffer if the injunction is withheld. The appellate court as well has rightly analyzed and tested the order of the trial court while dismissing the appeal of the petitioners. 14. The exercise of supervisory jurisdiction sought by the petitioners in the instant petition in view of law laid down by the Apex Court in Shalini Shayam Shetty & anr vs. Rajindra Shankar Pati, reported in 2010 (8) SCC 3291 cannot in the facts and circumstances of the case be exercised on the principle laid down in the judgment (supra) that High Court cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the order of the courts inferior to it and cannot as well act in exercise of this power as a court of appeal over the orders of the subordinate courts, inasmuch as, further the High Court cannot interfere to correct mere error of law and fact or just because another view than the one taken by the court subordinate to it is a possible view. 15. Having regard to the aforesaid analysis and the position of law enunciated by the Apex Court in the judgments (supra) the exercise of supervisory jurisdiction qua the impugned orders is not warranted in the facts and circumstances of the case. 15. Having regard to the aforesaid analysis and the position of law enunciated by the Apex Court in the judgments (supra) the exercise of supervisory jurisdiction qua the impugned orders is not warranted in the facts and circumstances of the case. Resultantly, the petition fails and is, accordingly, dismissed along with connected IA(s). OW 104 92/2014 1. The instant petition has been filed by the petitioners calling in question the orders dated 17.07.2014 and 24.07.2014 (for brevity ‘impugned orders’) passed by the Court of Munisff, Jammu ( for brevity ‘the trial court’) in case titled Parshotam Lal and others vs. Mohd. Rafiq and others. 2. It is being stated in the petition that a civil suit came to be filed by the respondents herein against the petitioners before the trial court and one dead person, namely, Krishan Chopra seeking a declaration for declaring the sale deed dated 12.06.1981 executed between the said Krishan Chopra and the petitioners in respect of land measuring 04 Kanal falling under Khasra No. 178 new situated at Village Chack Jaggar (Marh), Jammu as null and void and also for declaring the respondents, as owners in possession of the land in question on the ground of adverse possession and with consequential relief of permanent prohibitory injunction seeking therein that the petitioners herein be restrained from selling and alienating the land in question to any person or cause any interference into the possession of the respondents herein over the land in question. 3. It is being stated that in the application for interim relief accompanying the suit, the trial court vide interim order on 06.06.2013 directed maintenance of status quo on spot with respect of the suit land. 4. It is being stated that the petitioners herein filed written statements as well as objections to the suit and the application for interim relief inter alia stating therein that the suit has been filed against a dead person i.e., Krishan Chopra, as such, the suit is not maintainable. 5. It is being next stated that the respondents herein after filing of the written statements to the suit, the petitioners herein on 09.10.2013 filed an application for binging on record the legal representatives of the deceased Krishan Chopra. 5. It is being next stated that the respondents herein after filing of the written statements to the suit, the petitioners herein on 09.10.2013 filed an application for binging on record the legal representatives of the deceased Krishan Chopra. The said application is said to have been allowed by the trial court after objections came to be filed by the petitioners herein to the same, vide order dated 17.07.2014 allowing the son of the deceased Krishan Chopra to be brought on record as legal heir of the deceased. 6. It is being next stated that on 24.07.2014 when the case had been fixed for further proceedings, the counsel for the respondents herein requested the trial court for extension of interim direction initially granted on 06.06.2013 and though the counsel for the petitioners herein resisted the prayer on the ground that the order had never been extended from time to time, yet the trial court extended the same till next date of hearing i.e., 19.08.2014. 7. The petitioners thus, challenge the impugned orders in the instant petition inter alia on the grounds that the same came to be passed against the law and facts of the case and prejudicial to the interest of the petitioners as also justice, equity and fair play. The impugned orders are contended to have been passed by the trial court while exercising jurisdiction illegally and with material irregularity and without appreciation of facts and circumstances of the case. 8. Per contra, respondents have filed objections, wherein it is contended that the petition is mis-conceived and not maintainable. It is being stated in the objections that the impugned orders have been passed by the trial court validly and legally. Petition thus, is prayed to be dismissed. Heard learned counsel for the parties and perused the record. 9. Perusal of the record tends to show that admittedly the suit came to be filed by the respondents herein against the dead person being Krishan Chopra –defendant No. 5 in the plaint and that the said fact of his death surfaced upon filing of written statement to the suit by the petitioners herein, whereupon an application came to be field by the respondents herein for bringing on record the legal representatives of the said deceased. The trial court rightly entertained the application, allowed the same while placing reliance on the judgment of the Apex Court titled as Karuppaswsamy and others vs. C. Ramamurthy, 1993 (4) SCC 41 , and the judgment of this Court titled as Ghulam Nabi vs. State, 2009 SLJ (II) 533, thus, the impugned order dated 17.07.2014 does not call for any interference. 10. So far as challenge thrown to order dated 24.07.2014 is concerned, record tends to show that the trial court passed order of status quo initially on 06.06.2013 in the application for interim relief and extended the same in terms of order dated 02.07.2013, however, thereafter did not extend the same till 24.07.2014, on which date the trial court extended it at the request of the counsel for the respondents herein. The trial court ought to have realized that initially when interim order was passed on 06.06.2013 same was to remain in operation till next date of hearing and was, accordingly, thus, extended on the next date of hearing i.e., 02.07.2013, Thereafter the said order was never extended till the passing of the impugned order dated 24.07.2014, thus, the interim order can safely to be said to have lost its force after 02.07.2013. What was prayed for by the counsel for the respondents herein on 24.07.2014 in essence was for grant of a fresh interim order against the petitioners herein and in such a situation, the trial court was required to provide an opportunity of hearing to the respondents herein to project their version and to resist the grant of such fresh injunction. 11. The trial court has not done so, thus, has in the process erred and has caused miscarriage of justice to the petitioners herein. The impugned order, therefore, is not sustainable and is accordingly set aside. However, setting aside of the impugned order dated 24.07.2014 shall not stand in the way of the respondents herein from seeking any fresh interim relief in their favour from the trial court and in the event any such prayer is made, the trial court shall be free to consider the same after providing an opportunity of hearing to the petitioners herein. 12. Viewed in the context what has been observed, considered and analyzed hereinabove, the instant petition shall stand disposed of along with connected IA(s). 13. 12. Viewed in the context what has been observed, considered and analyzed hereinabove, the instant petition shall stand disposed of along with connected IA(s). 13. A copy of this judgment shall be placed on the record of OW 104 92/2014.