Shahzada vs Aamina And Others
2021 Latest Caselaw 484 j&K/2

           HIGH COURT OF JAMMU AND KASHMIR
                     AT SRINAGAR
                                                         Reserved On: 21/04/2021
                                                       Pronounced On: 27 /04/2021

                                                              CM (M) 16/2020
                                                               CM(570/2020)

Shahzada
                                                 ... Petitioner/Appellant(s)
                     Through: Mr.P. S. Ahmad, Advocate

                            V/s
Aamina and others
                                                             ... Respondent(s)

Through: Mr. Altaf Mehraj, Advocate

CORAM:

HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

1. In this petition, the petitioner on the foundation of the case set up implores for the following reliefs:

Certiorari for quashing the impugned order dated 27.11.2019 passed by Hon'ble Court of Principle District Judge, Anantnag, as contained in Annexure-I along with the order dated 04.11.2019 passed by learned Munsiff (JM) Anantnag, bearing file number 237/A titled as Mst. Shahzada versus Mst. Aamina and others and consequent upon that direct the parties to maintain the status quo with respect to suit property falling under khewat No. 149, khata Nos. 564, 565, 566, 567 reference to survey Nos. 612, 607/1, 411, 1506/611, 1507/612 situated at Seer Hamdan Anantnag.

2. The background facts as stated in the petition by the petitioner

under the cover of which the petitioner claims the reliefs aforesaid,

are in brief as under: -

i) A suit for declaration with consequential relief of

partition and possession accompanied with an

application for interim relief came to be filed by

the petitioner herein against the contesting and

proforma respondents herein in respect of land

claimed to be joint and un-partitioned property

covered under khewat no. 149 Khat No. 564, 565,

566, & 567 and covered under Survey Nos. 612,

607/01, 411, 1506/611, 1507/612 situated at Seer

Hamdan Anantnag.

ii) The claim is lodged by the petitioner qua the land

supra on the ground of inheritance being daughter

of one Mst. Jana D/o Qudoos, one amongst the

four sons of one Ama.

iii) Respondent No. 1 is stated to be the daughter of

the other son of Ama namely Sanaullah. Besides

respondent No. 1 Sanaullah is stated to have also

two more daughters namely Saleema and Raja

(sisters of respondent No. 1).

iv) Proforma respondents 2 to 6 are stated to be legal

heirs of another daughter of Qudoos namely

Khurshi.

v) The other two sons of Ama namely Rasool and

Aziz are stated to have died issueless.

vi) The aforesaid land despite being ancestral property

belonging to Ama (estate holder) is alleged to have

been fraudulently and illegally incorporated in the

name of the respondent No. 1 upon managing

illegal mutations in the revenue records after the

death of her father Sanaullah.

vii) The petitioner herein in the aforesaid suit claims to

have a definite share in the suit land along with

proforma respondents herein having been denied

by the respondent No. 1 herein on account of

aforesaid alleged illegal mutations/entries.

viii) The plaintiff/petitioner herein claimed that the suit

land have had to devolve in two equal shares upon

her and the proforma respondents herein in equal

shares akin to the respondent No. 1 herein and her

other two sisters after the death of their fathers

namely Sanaullah and Qudoos as the said land had

been left by the estate holder Ama.

ix) Upon being denied her share in the suit land by the

respondent No. 1 herein inasmuch as the partition

of the same thereof, the plaintiff/petitioner herein

filed the suit supra.

x) In the application for interim relief accompanied

with the suit supra the trial court passed an order of

status-quo initially on 01.06.2019. The application,

however, came to be dismissed and interim order

vacated vide order dated 04.11.2019.

xi) An appeal came to be filed by the

plaintiff/petitioner herein against order dated

04.11.2019 supra passed by the trial court before

the court of Pr. District Judge Anantnag, which

appeal has also been dismissed vide order dated

27.11.2019.

xii) Both the orders dated 04.11.2019 and 27.11.2019

are impugned in the instant petition while invoking

supervisory jurisdiction of this court under Article

227 of the Constitution, inter-alia amongst others

fundamentally on the grounds that the impugned

orders are patently illegal and that the courts below

failed to appreciate the case of the

plaintiff/petitioner herein in its correct perspective

and in the process passed the impugned orders

beyond the scope of established principles of law

governing the field of granting interim reliefs and

also overlooking various judgements referred

thereto being relevant to the controversy.

3. Heard learned counsel for the petitioner and the contesting respondent No. 1 and perused the record.

4. Learned counsel for the petitioner while making his submissions

reiterated the contentions raised and grounds urged in the petition

while seeking quashment of the impugned orders, whereas the

counsel for the contesting respondent No. 1 controverted and

resisted the contentions raised and grounds urged by the learned

counsel for the petitioner, as also raised a preliminary objection

qua the maintainability of the petition while placing reliance on

judgment of the Apex Court in case titled Radhey Shyam and

another versus ChhabiNath (2015) 5SCC 423.

5. Before proceeding to advert to the issues involved in the petition, it

would be appropriate and advantageous to refer to the nature,

scope and object of injunctions enshrined in Order 39 of CPC as

under:-

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) Where the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors;

(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)].

6. 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. The primary purpose of granting interim

relief is the preservation of property in dispute till legal rights and

conflicting claims of the parties before the court are adjudicated.

The object of making an order of interim relief is to evolve a

workable formula required in a particular situation, keeping in

mind pros and cons of the matter while striking a delicate balance

between two conflicting interests. The underlying object of grant

temporary injunction is to maintain and preserve the lis/subject

matter and to prevent any change in it until the final determination

of the suit. An injunction may be in a restrictive form or a

mandatory form.

7. The Apex court in case titled as "Dalpat Kumar and another Vs.

Prahlad Singh and Others, reported in 1992 (1) SCC 719, being

relevant and germane herein at Para 4, & 5, restated the principles

qua grant of interim injunctions as follows: -

"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. 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.

8. Further Apex court in case titled as "Gujarat Bottling Co. Ltd.

Vs. Coca Cola Co. reported in 1995 (5) SCC 545, observed

following: -

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."

9. A further reference to the judgement of the Apex court passed in

"Colgate Palmolive (India) Ltd V. Hindustan Lever Ltd.,

reported in 1999 (7) SCC 1, wherein at Para 24, being relevant

and germane herein, wherein the Apex court laid down as under:-

"24.We, however, think it fit to note herein below certain specific considerations in the matter of grant of interlocutory injunction, the basic being non-expression of opinion as to the merits of the matter by the court, since the issue of grant of injunction, usually, is at the earliest possible stage so far as the time-frame is concerned."

10. In view of the aforesaid legal position and the principles laid down

by the Apex court, the validity or otherwise the impugned orders is

required to be tested, while having regard to the case setup by the

parties.

11. A reference to the pedigree table of the parties being undisputed

and relevant and germane hereto needs to be extracted and

reproduced here under: -

Ama

(estate holder)

Rasool Aziz Sana ullah Qadoos (dead, issueless) (dead, issueless)

Saleema Raja Aamina (defendant/ respondent No.1)

Jana Khurshi

Shazada (plaintiff/petitioner)

Rashid Mushtaq Naseer Shameema Mehmooda (proforma defendants/respondents)

12. Perusal of the record reveals that the plaintiff while maintaining

the suit in question had specifically pleaded and lodged a claim

qua the land detailed out in the suit originally belonging to the

estate holder namely Ama. The plaintiff petitioner herein claimed

the right in the subject matter of the suit on the premise that her

mother Jana inherited along with her sister Khurshi their father

Qudoos who had been one of the sons of original estate holder

Ama, besides Sanaullah, Aziz and Rasool. While Rasool and Aziz

had died issueless, Sanaullah and Qudoos had issues including

respondent No. 1 herein as also the petitioner and proforma

respondents herein.

13. Perusal of the record reveals that respondent No. 1 herein had got

the suit land pursuant to a mutation as legal heir of Sanaullah who

also had got the same mutated in his own name after the death of

his father Ama. Whether the said mutations are legally sustainable

or not cannot be gone into either by the courts below or by this

court, yet law is settled that the mutation entries in the revenue

records does not create or extinguish the title nor have any

presumptive value on title. The defendant/respondent No. 1 has

denied the claim lodged by the plaintiff/petitioner herein qua the

land in question primarily on the premise that the father of the

plaintiff/petitioner herein had pre-deceased his father Ama the

estate holder, as such, the plaintiff/petitioner herein got excluded

from inheriting her father and grandfather Ama.

14. Be that as it is, perusal of the record indisputably would reveal that

there has been conflicting claims made and raised by the parties

before both the courts below in their respective pleadings, which

would require a full dressed trial affording an opportunity to the

parties to substantiate their respective claims by leading evidence.

15. Perusal of the pedigree table supra prima-facie establishes that the

contesting parties have based their claims in the suit land being the

estate of the original estate holder Ama. There is no dispute about

the said fact between the parties. The defendant/respondent No. 1

herein claimed to have acquired/inherited the land in question

validly excluding the plaintiff/petitioner herein and proforma

respondents on the ground/defense setup by the

defendant/respondent No. 1 herein contrary to the claim of the

plaintiff/petitioner herein and same in essence constituted a prima-

facie case based on the said first impression. Both the courts below

seemingly have overlooked this fundamental issue confusing a

prima-facie case with the prima-facie title so much so a case

proved to the hilt and in the process failed to evolve a workable

formula required in the situation keeping in mind the pros and cons

of the matter and striking a delicate balance between two

conflicting claims and interests of the parties as raised and urged in

their respective pleadings inasmuch as ignoring the greater

hardship, inconvenience and mischief likely to be suffered by the

plaintiff/petitioner herein as against the defendant/respondent No.

1 herein as the defendant/respondent No. 1 admittedly has been

and is in possession, occupation and enjoyment of the suit land

thus, warranted prevention of irreparable loss and injury to the

plaintiff/petitioner herein in the facts and circumstances of the

case.

16. Perusal of the impugned orders reveal that both the courts below

have while passing the impugned orders conducted a mini trial of

the case, so much so have expressed opinions about the merits

thereof while dealing with an application for interim relief which

exercise is forbidden by the Apex court in Colgate Palmolive's

case supra.

17. A combined reading of the impugned orders manifestly tend to

demonstrate that the matter has not received appropriate

consideration by both the courts below and instead the courts

below have grossly erred in exercise of jurisdiction vested unto

them and in the process have caused miscarriage of justice, thus

warranting exercise of supervisory jurisdiction by this court under

Article 227 of the Constitution. The judgement of the Apex court

in Radhey Shyam's case supra referred to and relied upon by the

learned counsel for the respondent No. 1 does not lend any

support to the case of the defendant/respondent No. 1 herein but

instead supports the case of the plaintiff/petitioner herein in view

of the failure of the courts below noticed in the preceding paras.

18. Viewed thus, what has been observed, considered and analyzed

hereinabove, the petition is allowed and the impugned orders dated

4.11.2019 and 27.11.2019 are set aside with a direction to the trial

court to reconsider and revisit the application for interim relief

afresh after hearing both the parties, who shall appear before the

trial court on 20.05.2021. Till then the parties shall maintain status

quo with respect to the suit property.

19. It is made clear that nothing hereinabove shall be construed to be

expression of any opinion about the merits of the case.

20. Disposed of along with connected CM(s).

(JAVED IQBAL WANI) JUDGE

Srinagar 27-04-2021 Ishaq

Whether the order is speaking: Yes Whether the order is reportable: Yes

ISAQ HAMEED BHAT 2021.04.27 11:55 I attest to the accuracy and integrity of this document