Jammu & Kashmir High Court
Noor Ali vs Bashir Ahmed And Others on 2 December, 2021
Sr. No.74
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 02.12.2021
CM (M) No. 56/2021
CM No. 8699/2021
CAV No. 2094/2021
Noor Ali ..... Petitioner(s)
Through: Mr. Faheem Showkat Butt, Advocate.
Vs
Bashir Ahmed and others ..... Respondent(s)
Through: Mr. G. S.Thakur, Advocate.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
1. The petitioner through the medium of present petition filed under Article
227 of the Constitution of India seeks issuance of writ of certiorari for
quashment of order dated 28.10.2021, passed by the court of learned
Additional District Judge, Jammu. The said court denied the interim
relief to the petitioner in the suit.
2. The case of the petitioner in the suit is that he along with the defendants
is co-sharers in the land measuring 05 kanal05 marlas in khasra no.2319
and 01 kanal 14 marlas falling in khasra no.2320 situate at Kote tehsil
Bhalwal, Jammu and has not been partitioned till date. The parties have
been in the peaceful possession of the suit property and being held by the
parties to the suit together as co-sharers equally. The plaintiff and the
defendants in the suit are real brothers. The defendants after the death of
the father of the parties intended to start construction on the suit property
which compelled the plaintiff to approach the SDM, Jammu (North) with
a complaint and the Tehsildar stopped the construction that was being
raised by the defendants. The plaintiff approached the Tehsildar for
implementation of order but no action has been taken by the Tehsildar
when approached. As the defendants continued with the construction, the
same has given cause of action to the plaintiff to file the present suit. The
prayer in the suit is for restraining the defendants from dispossessing the
plaintiff or interfering into his peaceful possession of the suit property to
the extent of his share or transfer the property by any mode.
3. The written statement is filed by the defendants wherein it is submitted
that the defendant No.1 is in possession of 10 kanals 15 marlas of land
and out of which 3 kanals 6 ½ marlas falling in khasra no.2319 has been
acquired by the National Highway and the compensation awarded was
managed to be transferred by the plaintiff in his account and now the
defendant is in possession of more than 7 kanals of land in this khasra
number. The property consisting of 50 kanals of land in different khasra
numbers was partitioned by the father of the parties during his life time.
The defendant No.1 being in possession of his own share, he cannot be
deprived of his right to raise construction in the land occupied by him. It
appears from the record annexed with the file that the plaintiff filed
further pleadings in the matter wherein he has more or less reiterated the
stand taken in the plaint. The plaintiff has denied that any oral partition
has taken place.
4. The plaintiff also filed application for interim injunction before the trial
court. The trial court vide order dated 01.10.2021 dismissed the
application and allowed the defendant No.1 to raise the construction with
the rider that in case the partition is to take place and the construction is
required to be demolished the same shall be carried out by the defendants
without raising any claim or compensation from the other co-sharers or
that the construction being raised shall in no way exceed his share. The
appeal preferred against the order of the trial court also came to be
dismissed by the court of learned Additional District Judge, Jammu vide
order dated 28.10.2021.
5. The relief claimed by the petitioner herein in the suit is to the extent that
the defendants be restrained from dispossessing or interfering in the
peaceful possession of the plaintiff to the extent of a share measuring 5
kanals 5 marlas in Khasra No. 2319 and 1 kanal 14 marlas falling in
Khasra No. 2320. The perusal of the written statement filed by the
defendants reveals that the defendant No.1 claims to be raising
construction in the land allegedly within 7 kanals and 8 ½ marlas of the
land falling in Khasra No. 2319. The plaintiff has vaguely stated of his
and that of the defendants physical possession in the land in question. He
has not stated the extent of suit land of which he is in physical
possession, though the plaintiff at the same time states that the
defendants are illegally raising construction in the suit land. It is not the
case set up by the plaintiff before the trial court that the defendants are
not in possession of the land on which they are raising construction or
that they hold the land in excess of their share and that is why they
cannot deal with the land in the manner they like unless the land is
partitioned. Of course the land is partitioned or not is a matter of trial and
this court cannot give its final verdict on the same in the present petition
nor the courts below have done so while disposing of the interim
application. Mere raising of construction may not amount to ouster of the
co-sharer in all the cases and it depends upon facts of each case as to
whether such construction leads to the same or not.
6. The reliance placed by the petitioner upon the judgment passed by this
court in Girdhari Lal vs. Ram Lal (CSA 14/2003 decided on 03.10.2018)
is misplaced though there can be no dispute with the proposition of law
mentioned on the basis of earlier judgments of the courts. The facts of
the case in that case were quite different from the present and the court
was dealing with the matter in second appeal.
7. In Mohammad Yaqoob Lone versus Hamidullah Lone and others (CM
(M) NO.127/2021 decided on 05.10.2021 this court decided the interim
application keeping in view the facts of the case. This court will not
interfere in the order passed by the courts unless the court is of the view
that the order passed by the appellate court is perverse, palpably unjust or
apparently not in consonance with the statute and therefore requires
interference by this court. Mere wrong interpretation of law or that the
court could have taken another view in the matter is not a ground to set
aside the order under challenge. In the present case also, the appellate
court while dismissing the claim of the plaintiff, petitioner herein, has
also upheld the second part of the order which in the opinion of this court
takes care of the interest of the plaintiff in the case.
8. The court does not find any reason to interfere in the orders of the both
the courts below only for the reason that the court should not have denied
the relief to the plaintiff as prayed for by him.
9. Mr. G.S.Thakur, learned counsel for the respondents had argued that the
writ petition under Article 227 of the Constitution of India does not lie as
the court cannot issue writ of certiorari under the said Article.
10. Mr. F.S.Butt, learned counsel appearing for the petitioner had contested
the argument of the learned counsel for the respondents and submitted
that this court in exercise of its supervisory jurisdiction can quash the
order of the appellate court if not passed in accordance with law.
11. The court need not dwell on this aspect of the matter in detail as this
court has not otherwise found merit in the present petition. It is suffice to
mention that the hon'ble apex court in Radhey Shyam and ors. Vs.
Chhabi Nath and ors reported in 2015 AIR (SC) 3269 while referring to
the authorities held that the writ Court should not interfere in cases of
property rights and in dispute between private individuals unless there is
any infraction of statute or when the private individual is shown to be in
collision with a statutory authority.
12. In any case, the Court finds no reason to entertain the present petition in
view of the discussion made above. The main petition is without merit
and is accordingly dismissed along with connected CM(s).
(Puneet Gupta)
Judge
Jammu/02.12.2021*Narinder
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No
NARINDER KUMAR SHARMA
2021.12.02 13:09
I attest to the accuracy and
integrity of this document
