Raj Mohammad Paswal And Others vs Ut Of J&K And Others
2021 Latest Caselaw 1263 j&K/2

                                       h475




      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                                                      WP(C) No.1092/2021
                                                      CM No.3702/2021

                                               Reserved on : 30.09.2021
                                               Pronounced on : 08.10.2021

Raj Mohammad Paswal and others                                 ...Petitioner(s)

                        Through:- Mr. S.H.Thakur, Advocates
      V/s
UT of J&K and others                                        ...Respondent(s)

                           Through:- Mr. B.A.Dar, Sr. AAG for R-1-4
                                     Ms. Syed Iram, Advocate for R-5-9
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                  JUDGMENT

1. The petitioners invoke extraordinary writ jurisdiction of this Court to

seek mandamus to the respondents to protect their rights in the property.

Petitioners also pray for mandamus to the Civil Court and the Revenue

Court where litigation between them and respondent Nos. 5 to 9 (private

respondents) is pending adjudication to discharge their legal and

constitutional duties and ensure protection of the disputed property by

passing appropriate orders. The petitioners also pray for directing a probe

to find out as to why no action has been taken against the private

respondents by the police and lastly they also pray for award of

compensation in their favour and against the private respondents.

2. With a view to appreciate the grounds of challenge pleaded and the

reliefs claimed in the petition, it is necessary to have a look on the case set

up by the petitioner.

3. The petitioners claim that they and the private respondents are

cousins descending from same ancestry and, therefore, are co-sharers in

landed property comprised in common survey numbers. It is pleaded that

the petitioners are also owners in possession of inherited land measuring 1

kanal and 17 marlas falling under Survey No.158 Patwar Halqa Bagh-e-

Beela Tehsil Karnah, which is situated adjacent to the land of the private

respondents. It is alleged that in the year 2001, private respondents at the

back of the petitioners got the revenue entries changed and in the year 2019

started raising construction of shops on the said land. Tehsildar, Karnah

intervened in the matter on the application of the petitioners and stopped

the construction. The private respondents being employees of the Police

Department and associated with security of VIPs prevailed over the local

administration and tried to snatch possession of the subject land from the

petitioners. Facing threat of dispossession, the petitioners approached the

Court of learned Munsiff, Tangdhar (Civil Court) by way of a suit titled

Raj Mohammad Paswal and others v Mohammad Misri and others and

others in which, on 19th March, 2020, the Civil Court passed an interim

order. The private respondents, however, did not stop the construction of

shops and, thus, openly breached the order of the Civil Court. It is further

pleaded that in the year 2010, when the private respondents asserted that

they are the owner of the subject land and displayed revenue mutation, the

petitioners obtained a certified copy of the mutation and challenged the

same before the Collector, Kupwara by way of an appeal in the month of

October, 2020.

4. It is submitted that, though, the appeal has been entertained but the

revenue court has not passed any interim or final order so far. It is the

grievance of the petitioners that, though, the Civil Court as well as revenue

court have intervened in the matter and dispute qua the subject land is

subjudice but the police is not taking any action to stop the private

respondents from raising construction on the subject land. It is, thus,

submitted that the official respondents are acting at the behest of the private

respondents and are not protecting the subject property, which is

proprietary land of the petitioners. The petitioners also claim to have filed

complaint before the police and other revenue authorities but have not

succeeded in restraining the private respondents from raising construction.

5. It is in the backdrop of aforesaid pleadings, the petitioners claim that

their right to property is at peril at the hands of the private respondents.

Therefore, if this Court does not protect this right, the petitioners would be

put to an irreparable loss and injury.

6. The private respondents have filed their reply. Along with the reply

the private respondents have filed an affidavit executed by petitioner Nos. 2

and 3 and notarized before Notary Public in which the petitioner Nos. 2 and

3 have deposed that they have neither issued any power of attorney in

favour of petitioner No.1 nor have they signed any paper or vakalatnama.

They have even denied to have engaged any counsel in the case.

7. On facts, the private respondents would submit that the subject land

measuring 1 kanal 17 marlas was purchased by them in the year 1991 and

the same was mutated in their favour in the revenue record. It is pleaded by

the private respondents that they have been in possession of the subject

land since 1991 and have constructed two houses along with two shops.

The shops, however, gutted in a fire incident and the same have been

reconstructed that, too, with the permission of the official respondents.

8. Having heard learned counsel for the parties and perused the record,

I find this writ petition utterly misconceived, misdirected and an attempt to

abuse the process of law.

9. Apparently, there is a civil dispute with regard to ownership and

possession of subject land. The petitioners would claim that this is their

proprietary land inherited from their forefathers and has been illegally

occupied by the private respondents, whereas it is the case of the private

respondents that the subject land is their proprietary land, which was

purchased by them in the year 1991 and the same has been mutated in their

favour. They would also claim that there are two residential houses and two

shops existing on the subject land since time immemorial. Two shops,

however, were gutted in a fire incident and the same were reconstructed

with the permission of the Tehsildar Karnah. It has also come on record

that the land is recorded in the name of private respondents and a mutation

in this regard stands attested. It is, however, true that the petitioners feeling

aggrieved of the mutation have filed an appeal before the Collector, which ,

too, is subjudice.

10. So far as civil dispute between the petitioner and the private

respondents with respect to the subject land is concerned, the petitioners

have already filed a civil suit before the Civil Court seeking, inter alia, a

decree for declaration declaring the petitioners as owners of the subject

land with further direction to the private respondents to deliver possession

of the share of the petitioners in their favour. Civil court has intervened in

the matter and by way of an interim order directed the defendants i.e.

private respondents herein not to create third party interest on the suit

property. The Civil Court has, however, declined to pass any other interim

direction. It appears that mis-interpreting the aforesaid direction of the

Civil Court dated 19th March, 2020, the petitioners have been filing

application after application invoking the provisions of Order 39 Rule-2-A

of the Code of Civil Procedure to somehow restrain the private respondents

from completing the construction of their shops. The petitioners have not

disputed the fact that the subject land is even mutated in favour of the

private respondents and to get rid of the aforesaid mutation, the petitioners

have approached the Collector by way of an appeal under the Land

Revenue Act.

11. Once the Civil Court as well as the Revenue Court are seized of the

matter and the claim and counter claim of the parties are yet to be

determined, it does not lie in the mouth of the petitioners to clamour before

this Court that their right to property, which is subject matter of

adjudication in a civil suit is required to be protected by this Court

invoking its extraordinary writ jurisdiction.

12. The grievance of the petitioners against the police and revenue

authorities that they are not stopping private respondents from raising

construction and are not restoring possession of their property is equally

misconceived. In order to be declared as owners of the subject property, the

petitioners are required to succeed in the civil suit and get a decree of

declaration declaring them to be the owner of the subject land. For

correction of revenue record, the petitioners need to succeed before the

Collector where mutation attested in favour of the private respondents is

under challenge. The petitioners without pursuing the remedies launched

by them have devised a shortcut to circumvent the law. Instant petition is

outcome of this flawed ingenuity.

13. It is interesting to note that the writ petitioners in para (3) of the writ

petition have, on affidavit, stated that they have not filed any other

litigation on the present cause of action before any Court in India including

the High Court. Para (3) of the writ petition is, though, cleverly designed,

yet brings out the true intention of the petitioners to mislead this Court.

There is, of course, reference to the litigation pending in civil and revenue

court, but an attempt has been made to portray the petitioners as victim of

the system whether it is a justice delivery system of Civil Courts or the

Revenue Courts. It is vehemently contended before this Court that the

orders of the Civil Court and the Revenue Courts are not adhered to by

anybody and, therefore, the litigants have no choice but to approach this

Court. The argument stems from a totally misconceived notion about

justice delivery system. The petitioners forget that the remedy of civil suit

before the Court of learned Munsiff, Tangdhar is chosen by none other than

the petitioners. It is a different matter that the Court did not pass an interim

order, which the petitioners might have expected. It is the petitioners, who

chose to challenge the mutation before the Collector by way of an appeal

provided under the Land Revenue Act. It is a different matter that before

the Revenue Court also the petitioners could not get the desired interim

orders. It is a well known that higher the expectations greater are the

chances of frustration. It is this frustration, arisen on account of failed

expectation that has led the petitioners to make an attempt to misuse the

forum of High Court. Learned counsel for the petitioners strongly relied

upon the judgment of Supreme Court in the cases of Awadh Bihari Yadav

and others v. State of Bihar and others (1995) 6 SCC 31 and State of

Jharkhand v. Surendra Kumar Srivastava and others, 2019 AIR SC

231.

14. In Awadh Bihari Yadav's case (supra), the Supreme Court

reiterated the legal position as was enunciated in Jai Singh v. Union of

India (1977) 1 SCC 1 and held that ordinarily a party should not be

permitted to pursue parallel remedies but there may be extraordinary

situation or circumstances, which may warrant a different approach. In the

cases where orders of the court are violated or thwarted with impunity, the

constitutional Court may step in. The aforesaid judgment is not applicable

to the instant case for the simple reason that there is no extraordinary

situation or circumstances emerging. The Civil Court, as noted above, is

seized of the suit filed by the petitioners and has passed an interim order to

protect the lis. The revenue Court is also examining the validity of the

mutation. The petitioners want to restrain respondent Nos. 5 to 9 from

raising construction on the subject land in the garb of order passed by the

Civil Court to restrain the defendant from creating third party rights. The

situation that had emerged in the case of Awadh Bihari Yadav's case no

longer exists in the instant case and, therefore, the judgment is

distinguishable on facts.

15. Similarly, the second judgment relied upon by the petitioner in the

case of Surendra Kumar Srivastava (supra) also does not help the

petitioners. The petitioners in the instant case have not called in question

the proceedings taken by the Civil Court, that, too, on the suit filed by the

petitioners. Even proceedings pending before the revenue Court, which,

too, have been initiated by the petitioners, are not subject matter of

challenge in this petition. It is, thus, not understandable as to how the

judgment passed in Surendra Kumar Srivastava's case (supra) could help

the petitioners.

16. I have gone through the judgments rendered by the Supreme Court in

entirely different legal and factual context and the same are not attracted to

the facts and circumstances of this Court. This Court cannot entertain this

writ petition to settle civil dispute between two private parties, more so,

when the parties are already litigating in the right forums. Such frivolous

petitions are drain on precious public time and, therefore, need to be

discouraged.

17. For all these reasons, I find absolutely no ground to entertain this

petition and the same is, accordingly, dismissed with costs of Rs.50,000/-.

The petitioners shall be jointly and severally liable to deposit the costs in

the Registry of this Court within four weeks failing which Registry shall

frame Robkar and put up the matter before this Court.

(Sanjeev Kumar) Judge Srinagar.

08.10.2021 Vinod.

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