Mushtaq Ahmad Bahadur And Another vs Chesfeed Ahmad Bahadur
2021 Latest Caselaw 557 j&K/2

                 HIGH COURT OF JAMMU & KASHMIR
                           AT SRINAGAR
                      (Through Video Conference)

                                                    Pronounced on 18.05.2021


                                             CM(M) No. 79/2021
                                             CM No. 2849/2021
                                             Cav No. 322/2021


Mushtaq Ahmad Bahadur and another                 .....Appellant(s)/Petitioner(s)

                      Through: Mr. R. A.Jan, Sr. Advocate with
                               Mr. Taha Khalil, Advocate


                 Vs

Chesfeed Ahmad Bahadur                                      ..... Respondent(s)



                      Through: Mr. A. M. Dar, Sr. Advocate with
                               Mr. Aijaz A. Bhat, Advocate for the
                               Caveator/Respondent


Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

                               JUDGEMENT

Cav No. 322/2021

Caveat stands discharged.

CM(M) No. 79/2021

01. The present petition has been filed in the supervisory jurisdiction of

this Court under Article 227 of the Constitution of India against the judgement

and order dated 06.03.2021 passed in appeal preferred by the respondent before

the court of Additional District Judge, Budgam.

Briefly stated the material facts are as under:-

02. The petitioner No. 1 and the respondent are real brothers. The

admitted case is that a plot of land measuring 01 kanal and 01 marla under

Khasra No. 116 came to be purchased jointly by the said parties in the year

1995, over which they constructed a house identified as House No. 13, Hill

View Colony, Rawalpora.

03. A deed dated 25.04.2017 came to be executed by the

respondent/plaintiff, wherein the respondent/plaintiff declared that he had

received an amount of Rs.8 lacs from the petitioner No. 1/defendant as an

advance payment on account of sale of his one half share in the joint house

comprising of 01 kanal and 01 marla land and two storied house with attic. The

respondent/plaintiff further declared in the said suit that the balance amount of

Rs.67 lacs would be paid to the respondent/plaintiff by or before December,

2017, which could be extended to June, 2018. It appears that an amount of Rs.

67 lacs was paid to the respondent/plaintiff through bank transaction on

07.04.2018 pursuant to an agreement arrived at between the parties.

04. Subsequently, a sale deed dated 26.03.2018 came to be executed

between the respondent and the petitioner No.1, whereby the vendee/respondent

herein sold land measuring ten and a half marlas falling under Khasra No. 116,

which forms the subject matter of dispute in favour of the petitioner No. 1 for a

total sale consideration of Rs.14,17,500/-. The deed also specifically stated that

the vendor had put the vendee into actual physical possession of the property

and that henceforth the vendee i.e. the petitioner No. 1 herein would peacefully

and quietly enjoy all rights as owner in possession of the demised property.

05. In the aforementioned background, a civil suit for permanent

injunction came to be filed by the respondent/plaintiff, wherein it was alleged

that the plaintiff had agreed to sell his portion of the land measuring ten and a

half marla falling under Khasra No. 116 for a consideration of Rs. 80 lacs, out of

which an amount of Rs. 75 lacs had been paid and by way of cheque, for which

a sale deed had been executed in favour of the petitioner No. 1/defendant. It was

further alleged that the parties had agreed that as and when the defendant was

able to arrange the balance amount at the prevailing market rate in regard to the

house in question, the defendant could purchase his share of the house.

The respondent/plaintiff had claimed in the plaint that he was residing

in the said property as a lawful owner and was in possession.

06. The suit was filed in the court of learned Munsiff, Chadoora, who by

virtue of order dated 29.06.2020, as an ad-interim measure restrained

temporarily the defendants/petitioners herein from causing any interference with

the property in question and from raising any construction over the disputed

property.

Subsequently however, the said order was vacated by virtue of order

dated 31.12.2020. The learned Munsiff, Chadoora in his order held that the suit

property, which included the share of the plaintiff, had already been sold off by

the plaintiff himself in the year 2018. It was held that the plaintiff had infact

admitted to receiving an amount of Rs.75 lacs from defendant No. 1 and that an

amount of Rs.14,17,500/- was reflected in the sale deed dated 26.03.2018. It was

held that the said amount was in regard to the entire share of the plaintiff‟s

property, i.e. the land as also the house constructed over it. It was also held that

the house could not exist without the land underneath and could not have been

sold separately or in piecemeal. In regard to the electricity bills, the trial Court

held that the said documents did not create or extinguish the rights of the person

in the immoveable property on its own and therefore, were of not much

consequence.

07. By virtue of judgement and order impugned dated 06.03.2021 passed

in appeal, the order passed by the trial Court dated 31.12.2020 was set aside and

the interim injunction granted by the trial Court vide order dated 29.06.2020

made absolute. On a perusal of the order impugned, passed by the learned

Additional District Judge, Budgam, it can be seen that the appellate Court was

convinced with the argument of the appellant/respondent herein that the sale

deed dated 26.03.2018 pertained only to the sale of land measuring ten and a

half marls and that there was no mention at all about the sale of the plaintiff‟s

share in the residential house. Based upon this argument and the observations so

made in that regard, the appellate Court held that the view expressed by the trial

Court that there was no prima-facie case established by the plaintiff was

erroneous in law.

08. Heard learned senior counsel for the petitioner as also the respondent-

Caveator at length.

09. In the present case, two documents have been relief upon. One, a deed

dated 25.04.2017, executed by the respondent/plaintiff and a sale deed

26.03.2018. The deed dated 25.04.2017 clearly reflects that an amount of Rs.8

lacs had been received as an advance on account of sale of one half share in a

two storied house with attic constructed over 01 kanal and 01 marla of land. It is

also clear that an amount of Rs. 67 lacs was payable to the respondent/plaintiff,

which was subsequently paid through bank transactions, which are also on

record. A total amount of Rs.75 lacs, therefore, was paid before the execution of

the sale deed. Interestingly, only an amount of Rs.14,17,500/- came to be

reflected in the sale deed dated 26.03.2018. The said sale deed clearly declares

that the land measuring 01 kanal 01 marla was sold in the name of the petitioner

No. 1/defendant and possession thereof handed over in regard to the same to the

said defendant.

10. The conclusion arrived at by the appellate Court was that the sale

dated 26.03.2018 was only in regard to the land and not in regard to the house in

question, therefore, injunction could not have been refused to the plaintiff. This

view, on the face of it, appears to be legally erroneous. Firstly, for the reason

that the sale dated 26.03.2018 ought to have been read in conjunction with the

deed dated 25.04.2017, where the intention of the plaintiff to sell even his share

in the house in question is clearly evident. Even otherwise, the view expressed

by the appellate Court that sale of land would not include the house constructed

over it for which a separate sale deed ought to be executed runs contrary to the

definition of „Land.'

Black's Law Dictionary defines "Land‟ as "an immovable and

indestructible three dimensional area consisting of a portion of the

earth‟s surface, the space above and below the surface, and everything

growing on or permanently affixed to it".

Section 3(26) of the General Clauses Act, 1897 defines immovable

property to include „Land,‟ benefits to arise out of land, and things

attached to the earth, or permanently fastened to anything attached to

the earth.

Section 2(6) of the Indian Registration Act, 1908 defines

immovable property to include "Land, buildings, hereditary

allowances, rights to ways, lights, ferries, fisheries or any other benefit

to arise out of land, and things attached to the earth, or permanently

fastened to anything which is attached to the earth, but not standing

timber, growing crops nor grass".

Section 3(a) of the State Land Acquisition Act, 1990 (1934 A.D.),

defines land thus:-

"3 (a) the expression "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth."

The definitions above thus signify that if an immovable property in

the shape of land ever becomes the subject matter of sale, then the structures

permanently embedded or affixed thereon must be deemed to be a part of such

immovable property excluding of standing timber, growing crops or grass,

which have been excluded from the definition of immovable property in the

Transfer of Property Act, 1882.

11. In Jai Singh and others Vs. Municipal Corporation of Delhi and

anr, (2010) 9 SCC 385, it was stated by the Apex Court that the powers under

Article 227 of the Constitution of India cannot be exercised like "bull in a china

shop", to correct all errors of judgment of a court, or tribunal, acting within the

limits of its jurisdiction.

12. What was held by the Apex Court in Jai Singh‟s case (supra) in

paragraph 15 is reproduced as under:

"15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a `bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice."

13. Testing the facts and circumstances of the present case on the

touchstone of the law laid down above, it can clearly be seen that the very basis

of the appellate Court order that sale deed was only in regard to the land and not

the house suffers from a legal perversity, which cannot be upheld. Even when it

has been held that the exercise of discretionary powers under Article 227 of the

Constitution of India cannot be exercised only because there has been an error of

law committed by the Courts below, yet the power is required to be exercised

where there has been a mistake in the understanding of the fundamental

principles of law.

14. Considering the facts of the present case on the touch stone of the law

discussed herein above, in my opinion, the view expressed by the appellate

Court is legally unsustainable, contrary to the fundamental principles of law and

consequently is set aside and the view expressed by the trial Court vide order

dated 31.12.2020 is upheld.

15. Notwithstanding the above, from the facts which had been placed on

record, it can be seen that an amount of Rs.75 lacs was already paid to the

respondent by the petitioner for the sale of the property in question. As against

this an amount of Rs.14,17,500/- only was reflected in the sale deed dated

26.03.2018. The averments made in the pleadings suggest a blatant effort by the

parties to avoid stamp-duty, which was otherwise legally payable by the parties

in regard to the property in question. Therefore, a copy of the judgment shall be

sent to the Divisional Commissioner, Kashmir, who shall forward it to the

concerned statutory authority to look into the matter with a view to determine

the issue with regard to the evasion of stamp-duty etc and the extent thereof.

Besides this, the Court below would also go into the issue of under-valuation of

the suit for purposes of Court fee.

16. Disposed of accordingly, along with connected application.

Registry is directed to supply a copy of this order to the Divisional

Commissioner, Kashmir for compliance.

(Dhiraj Singh Thakur) Judge Srinagar 18.05.2021 Muneesh

Whether the order is speaking : Yes / No

Whether the order is reportable: Yes / No

MUNEESH SHARMA 2021.05.18 15:42 I attest to the accuracy and integrity of this document