Nishant Koul vs Romesh Chander And Ors
2021 Latest Caselaw 1752 j&K

                                                            Sr. No. 97


       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU

                                          Pronounced on : 27.12.2021

                                            MA No. 19/2021
                                            CM No. 8285/2021

Nishant Koul                                    .....Appellant(s)/Petitioner(s)
                     Through:        Mr. P.N.Goja, Sr. Advocate with
                                     Mr. M.K.Raina, Advocate.
               Vs
Romesh Chander and ors.                                    ..... Respondent(s)
                     Through:        Mr. M.L.Gupta, Advocate.


Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                               JUDGMENT

1. The appellant through the medium of the present appeal seeks setting

aside of order dated 09.10.2021 passed by the learned Court of

Principal District Judge, Reasi, whereby the prayer sought for by the

appellant in the interim application filed in the suit was declined and

the defendants were directed to file undertaking in the Court that if the

plaintiff succeeds in the suit the defendants shall remove the

construction or any development on the suit land at their own cost and

further that the defendants shall not alienate the land till disposal of

the suit. The order is impugned on the ground that there was no

justification for the trial Court to allow the construction over the suit

land as the basis on which the defendants claim their right in the suit

land is not valid in law, the trial Court having admitted that the suit

requires trial and the rights of the parties can be determined only

during the trial. The trial Court has failed to visualize the real

controversy between the parties. In case the defendants are not

restrained from raising construction the appellant will be subject to

hardship and irreparable loss.

2. The respondent Nos. 1 to 3 have appeared through learned counsel to

contest the appeal. As the relief was sought by the appellant against

the aforesaid respondents before the trial court, therefore, the matter

was taken up for consideration even in the absence of the respondent

No.4

3. Mr. P.N Goja, learned senior counsel appearing on behalf of the

appellant-plaintiff has taken the Court through the various documents

on record in support of his argument that the trial Court erred in not

allowing the prayer of the appellant in the application and allowing

the defendants to raise the construction with the conditions as

mentioned in the impugned order. The argument in precise raised on

behalf of the appellant is that the documents on which the defendants

rely upon do not confer any legal right in the property and as the

issues raised in the suit require consideration, therefore, the order

impugned is bad in law.

4. Mr. M.L Gupta, learned counsel for the respondents, submits that the

order of the trial Court is justified. The right on which the plaintiff

claims relief in the suit is yet to be decided and there being no dispute

that the defendants are in possession of the suit property, therefore, the

order whereby the defendants were given permission to raise

construction cannot be faulted with.

5. The learned counsel for the appellant has referred to AIR 2013 SC

1204 which relates to the conditions which are required to be observed

to validate the adoption.

6. In AIR 1995 SC 2372, the Hon'ble Apex Court has laid down the

conditions in which the injunction can be passed.

7. The counsel for the respondent has referred to CIMA Nos. 161 to 166

and 171 of 2001 decided on 01.03.2002 titled Prem Nath and others v.

Shri Mata Vaishno Devi Shrine Board Katra, wherein this court did

not find favour to grant relief to the plaintiffs in the appeal on the

ground that no legal right existed in favour of the plaintiffs on the

expiry of license by the efflux of time.

8. In 2004 (2) JKJ 99, the court upheld the order of the trial court

whereby the application of the plaintiff for temporary injunction was

dismissed as court directed the defendants to file an undertaking that

in case any change is made in the suit property after the order of this

court, the same shall be removed by the defendants at their own

expense in case the defendants fail in the suit.

9. The perusal of the plaint and documents accompanying it reveal that

there are number of documents filed on which infact both the sides

rely upon. The documents which were executed over a period of time

and the orders passed by the courts in different proceedings with

regard to the property in question have only compounded the

controversy between the parties. The transfer of the property allegedly

by the father T.N Koul in favour of his respondent-wife, the

agreement to sell executed between the mother of the plaintiff in

favour of the contesting respondents, adoption deed and two decrees

passed purportedly qua the suit property are some of the documents

which are in focus.

10. It may be suffice to mention herein that the plaintiff claims to be the

adopted son of T.N.Koul and the adoption deed dated 14th July, 2007

executed between the original parents and the adopted parents is itself

questioned by the defendants in the suit filed by the plaintiff on the

basis of which the plaintiff has based his claim in the suit.

11. It may be convenient to refer to the salient features of the suit filed by

the appellant against the respondents-defendant Nos. 1 to 3. The

plaintiff through the suit has sought declaration for setting aside

decree passed by the court of Sub-Judge, Katra vide dated 31.01.2019

in suit titled Romesh Chander and another v. Swarn Singh (File No.

54/Civil) and decree dated 10.01.1996 passed by the court of

Additional District Judge, Reasi in suit titled Romesh Chander and

another v. Gouri Shori Kak (File No. 11/Civil).

12. Learned Senior counsel for the appellant has submitted that the decree

passed by the Sub-Judge, Katra vide order dated 31.01.2019 is

patently erroneous in law as the court passed the decree though the

father of the appellant was necessary party in the case and had every

right to agitate the matter. The suit was filed with a purpose to deprive

the real owner of his property in question. The learned counsel has

also submitted that the decree dated 10.01.1996 is unknown in law as

the court made a declaration of ownership of Romesh Chander and

Avtar Krishan (plaintiff in that suit) to become owners of the land

after the expiry of the statutory period of 12 years. This Court cannot

adjudicate the legality of both the decrees mentioned above in the

present petition as the same are under challenge in the court of law.

Any comment can only prejudice the case of the parties during the

trial and that is why the court refrains from making any observation on

the legality of the decree.

13. The issue of adoption has also been raised during the course of

arguments. Learned counsel for the appellant has submitted that the

adoption deed in favour of the appellant herein is perfectly valid in

law though the learned counsel for the contesting respondents herein

has argued that the adoption deed has not been executed as per law.

The submission is that the respondent No.4 is not a party to the

adoption deed but only a witness in the Will Deed allegedly executed

by T.N.Koul in favour of the plaintiff Nishant Koul. The respondent

No. 4 is witness in the Deed and, therefore, the same does not impinge

the sanctity of the deed is argued by the counsel for the appellant. The

matter encompasses factual as well as the legal aspect which is

required to be determined in the suit. The court in the light of the same

should not record its opinion on the same.

14. The documents which are placed on record, including the ones of

which the mention are made above, do not come to the rescue of the

appellant in the present appeal. The document by virtue of which the

defendants claim their physical possession in the property include the

agreement to sell and the decrees under challenge including the one in

which the respondent No.4 has admitted the claim of the respondents.

The most important factor to mention is that the appellant-plaintiff

Nishant Koul is not in physical possession of the property in question.

The defendants if are in legal possession of the suit property in

question is the issue which is again subject matter of the suit filed by

Nishant Koul. The intervening circumstances appearing in the matter

do not otherwise also make out the physical possession of the

appellant.

15. To say the least, the plaintiff is not only required to prove his status as

that of adopted son of T.N.Koul he is also required to prove the other

claims as raised in the suit filed by him against the contesting

respondents. In the absence of the possession of the appellant in the

suit property and the fact that the plaintiff is in the process of seeking

declaration against the decrees passed in favour of the respondents in

the two suits, it cannot be said that the plaintiff had any prima facie

case in his favour. The equity also does not favour him. The mere

raising of certain claim in the suit and the fact that the issues require

determination before the trial court does not give a blanket right to the

plaintiff to claim the interim relief in the suit. It is always the overall

facts and circumstances of the case which determine as to whether the

plaintiff is entitled to the interim relief or not. The court is not

convinced that any irreparable loss is going to be caused to the

plaintiff in case the interim relief as prayed for in the application is not

granted at this stage of the case. This court is of the considered

opinion that the trial court has not faulted while passing the impugned

order. The direction passed by the trial court that the defendants

cannot be denied from enjoying the property is not erroneous and

illegal discretion exercised by the trial court merely because the issues

have been raised by the plaintiff and he may ultimately succeed in the

suit. The trial court while allowing the defendants to raise construction

has also directed the defendants to remove the construction for any

development on the suit land at their own costs if they fail in the suit

and sell out and shall further not to alienate the land till the disposal of

the suit. The court is of the view that the conditions imposed by the

trial court while disposing of the interim application has taken

complete care of the interest of the appellant herein in case the

appellant finally succeeds in the suit.

16. No interference is required by this Court in the present appeal against

the order impugned. The appeal is without merits and is, accordingly,

dismissed.

(Puneet Gupta) Judge

Jammu 27.12.2021 Pawan Chopra

Whether the order is speaking? Yes Whether the order is reportable? Yes/No

PAWAN CHOPRA 2021.12.28 10:34 I attest to the accuracy and integrity of this document