CM(M)/312/2022 of MST. JANI AND ORS. Vs MOHAMMAD MAQBOOL MAGRAY AND ANR. on 31 December 2022

1. The petitioners have challenged order dated 26.11.2022 passed by learned Additional District Judge, Budgam as also order dated 29.09.2021 passed by learned Sub Judge, Chadoora to the extent they have been directed not to create third party interest in the suit property till the disposal of the suit. learned Additional District Judge, Budgam as also order dated 29.09.2021 passed by learned Sub Judge, Chadoora to the extent they have been directed not to create third party interest in the suit property till the disposal of the suit.

2. Heard learned counsel for the petitioners and perused the record.

3. It appears that the plaintiffs (respondents herein) have filed a suit for declaration, partition, possession and permanent injunction against the defendants (petitioners herein) before the Court of Sub Judge, Chadoora. In the suit the plaintiffs have pleaded that the predecessor in the interest of the parties was owner of land measuring 11 kanals and 6 marlas situated at Mouza Badipora Tehsil Chadoora, out of which defendant No.1 has alienated land measuring 01 kanal and 08 declaration, partition, possession and permanent injunction against the defendants (petitioners herein) before the Court of Sub Judge, Chadoora. In the suit the plaintiffs have pleaded that the predecessor in the interest of the parties was owner of land measuring 11 kanals and 6 marlas situated at Mouza Badipora Tehsil Chadoora, out of which defendant No.1 has alienated land measuring 01 kanal and 08

marlas without the consent of the plaintiffs. It has been further pleaded that the balance land measuring 9 kanals and 18 marlas is the joint property of the parties. It is further pleaded that any claim of the defendants with regard to disposition of the property by the deceased estate holder in favour of defendants by way of oral gift is non-est in the eyes of law. It is also pleaded that when the plaintiffs demanded their due share from the suit property from the defendants, they refused to do so.

4. The defendants in their written statement have claimed that the suit property is in physical possession of defendant No.2 since the year 1991. It has been claimed by the defendants that the estate of the predecessor in interest of the parties has been divided some thirty years back and that the suit land has been transferred in favour of the defendants by way of an oral gift. The defendants further claim that the suit land, as per the revenue records, is in the name of the defendants and they alone are in exclusive possession of the same.

5. The learned trial court after hearing the parties decided the application for grant of interim relief filed by the plaintiffs by virtue of impugned order dated 29.09.2021, whereby the defendants were directed not to create any third party interest and not to change the nature of the suit property. The said order was challenged by the defendants by way of an appeal before learned Addl. District Judge Budgam, who vide impugned order modified the order of the trial court and set aside the direction of the trial Court to the extent it prohibited the defendants from changing the nature of the suit property while maintaining the for grant of interim relief filed by the plaintiffs by virtue of impugned order dated 29.09.2021, whereby the defendants were directed not to create any third party interest and not to change the nature of the suit property. The said order was challenged by the defendants by way of an appeal before learned Addl. District Judge Budgam, who vide impugned order modified the order of the trial court and set aside the direction of the trial Court to the extent it prohibited the defendants from changing the nature of the suit property while maintaining the

directions whereby the defendants were directed not to create third party interest in the suit property.

6. Learned counsel for the defendants/petitioners has submitted that the suit land is admittedly in possession of the defendants and the same is recorded in the revenue record in their names. It has been further contended that the defendants are in fact owners of the suit property and the plaintiffs have no right to seek partition of the said property. According to learned counsel for the defendants/petitioners there is no prima facie case in favour of the plaintiffs and, as such, the trial Court and the Appellate Court were not justified in passing the interim injunction against the defendants/petitioners.suit land is admittedly in possession of the defendants and the same is recorded in the revenue record in their names. It has been further contended that the defendants are in fact owners of the suit property and the plaintiffs have no right to seek partition of the said property. According to learned counsel for the defendants/petitioners there is no prima facie case in favour of the plaintiffs and, as such, the trial Court and the Appellate Court were not justified in passing the interim injunction against the defendants/petitioners.

7. It is a settled law that jurisdiction under Section 227 of the Constitution can be exercised by the High Court only in a case where some grave illegality has been committed by the subordinate court. The jurisdiction has to be exercised sparingly and only in cases where the subordinate court has exercised a jurisdiction not vested in it or when there is failure on its part to exercise its jurisdiction. The power under Article 227 of the Constitution being one of the superintendence cannot be exercised to upset the conclusions, howsoever erroneous they may be, unless there is something grossly wrong or unjust in the impugned order shocking the Court’s conscience or the conclusion is so perverse that it becomes absolutely necessary in the interest of justice for the Court to interfere. A mere wrong decision without anything more is not enough to attract its jurisdiction.Constitution can be exercised by the High Court only in a case where some grave illegality has been committed by the subordinate court. The jurisdiction has to be exercised sparingly and only in cases where the subordinate court has exercised a jurisdiction not vested in it or when there is failure on its part to exercise its jurisdiction. The power under Article 227 of the Constitution being one of the superintendence cannot be exercised to upset the conclusions, howsoever erroneous they may be, unless there is something grossly wrong or unjust in the impugned order shocking the Court’s conscience or the conclusion is so perverse that it becomes absolutely necessary in the interest of justice for the Court to interfere. A mere wrong decision without anything more is not enough to attract its jurisdiction.

8. In the backdrop of afore noted limited scope of this court to interfere in the impugned order, let us now analyse the facts of the present case. The plaintiffs claim that the suit property is joint holding of the parties to the suit which the defendants vehemently deny. However, there is no dispute that the property in question initially belonged to the common ancestor of the parties According to the defendants it was divided 30 years back and as per the partition and the oral gift executed in their favour they have become owners of the property in question to the exclusion of plaintiffs but the same is being disputed by the plaintiffs. These are triable issues which can be decided only after trial of the case. However, one thing is clear that the defendants appear to be in possession of the suit property and for this reason the learned Appellate Court has rightly set aside the direction of the trial court to the extent of prohibiting the defendants from changing the nature of the suit land but no fault can be found with regard to the direction passed by the trial Court as upheld by the Appellate Court whereby the petitioners/defendants have been temporarily restrained from creating third party interest in the suit property. This has been done to protect the subject matter of lis and it does not cause any prejudice to the defendants.

9. For the foregoing reasons, I do not find any error or illegality much less a grave error or illegality in the impugned order passed by the appellate court. Thus there is no ground to interfere in the impugned order.less a grave error or illegality in the impugned order passed by the appellate court. Thus there is no ground to interfere in the impugned order.

10. The petition lacks merit and is dismissed accordingly.

SRINAGAR31.12.2022Sarveeda Nissar

(SANJAY DHAR)

JUDGE

Whether the order is speaking: Yes/NoWhether the order is reportable: Yes/No