Parshotam Lal And Others vs Mohd. Rafiq And Others
2021 Latest Caselaw 1122 j&K

                                                            Sr. No. J1

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                           Reserved on : 31.08.2021
                                          Pronounced on : 16.09.2021

                                                   OW 104 No. 29/2015
                                                   IA Nos. 01/2016 & 34/2015
                                                   c/w
                                                   OW 104 92/2014
                                                    IA 01/2018
Parshotam Lal and others
                                                          .... Petitioner(s)

                             Through:- Mr. J.P. Gandhi, Advocate in
                                      In OW 104 29/2015
                                      Mr. Pawan Maini, Advocate with
                                      Ms. Meenakshi Slathia, Advocate
                                      in OW 104 92/2014
             v/s

Mohd. Rafiq and others
                                                       ..... Respondent(s)

                             Through:- Mr. Pawan Maini, Advocate with
                                       Ms. Meenakshi Slathia, Advocate
                                       In OW 104 29/2015
                                       Mr. J.P. Gandhi, Advocate in
                                       OW 104 92/2014

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                  ORDER

The instant petitions are arising out of one and the same

immovable property comprising of 04 Kanal falling under Khasra No.

178 new situated at Village Chack Jaggar (Marh), Jammu, therefore, both

the petitions are taken up for final disposal at this stage with the consent

of the counsel for the parties.

OW 104 No. 29/2015

1. Supervisory jurisdiction is being invoked by the petitioners

under Article 227 of the Constitution, while throwing challenge to orders

dated 07.02.2013 and 06.02.2015 ( for brevity 'impugned order') passed

by City Judge, Jammu ( for brevity 'the trial court') and 1 st Additional

District Judge, Jammu ( for brevity 'appellate court') in case titled

'Parshotam Lal and others vs. Mohd. Rafiq and others.'

2. A civil suit for permanent prohibitory injunction came to be

filed by the respondents herein being plaintiffs before the trial court

against the petitioners herein being defendants before the trial court, in

respect of land claimed to have been purchased by the respondents herein

pursuant to a sale deed dated 12.06.1981, measuring 04 Kanal falling

under Khasra No. 51 min old (178 new) situated at Village Chack Jaggar

(Marh) Tehsil & District, Jammu. The application for interim relief

accompanying the suit came to be disposed of by the trial court in terms

of order dated 07.12.2013, restraining the petitioners herein from

interfering into the possession of the respondents herein over the suit

land.

3. Aggrieved of the order dated 07.12.2013 passed by the trial

court , petitioners herein challenged the same in an appeal before the

appellate court, which appeal came to be dismissed vide order dated

06.02.2015 upholding the order of the trial court dated 07.12.2013.

4. The petitioners herein question both the order of the trial

court and appellate court dated 07.12.1013 and 06.02.2015 in the instant

petition, inter alia on the grounds that firstly the court below committed a

grave illegality and did not appreciate three cardinal principles of law for

grant of injunction and caused failure of justice and did not exercise

jurisdiction vested in it and in fact failed to exercise jurisdiction, causing

failure of justice while passing the impugned orders and that both the

courts below committed grave illegality in the process and in fact did not

appreciate the reports of the Revenue Field Agencies, Naib-Tehsildar and

Tehsildar as also the provisions of Section 56 of the Specific Relief, Act

and that the sale deed pursuant to which the respondents herein

purchased the land in question in fact had been a paper sale deeds and

that the respondents despite the execution of the sale deeds were never in

possession of the land in question, when in fact the petitioners had been

in possession of the land in question for more than four decades.

5. Per contra the respondents have filed objections, wherein

the contention raised and grounds urged by the petitioners in the petition

are resisted and controverted. The respondents in the objections have

contended that the petition of the petitioners is not maintainable in its

present form. It is further contended that the respondents have purchased

the land in question validly and legally pursuant to sale deed dated

12.06.1981 and had been ever since in physical possession of the said

land and that a mutation of ownership rights of the land in question has

been attested in their favour vide mutation No. 125 dated 07.11.1981 and

that upon settlement process the Khasra No. 178 came to be assigned to

the land in question and that the possession of the respondents over the

land is reflected in Khasra Girdawari since 1981 and that the respondents

have been paying charges for irrigation of the land in question since

1981, after execution of the sale deeds and that the petitioners have no

right, title, interest or concern with the land in question or to interfere

thereof or else to encroach thereupon the same. The impugned orders are

being defended by the respondents on the premise that same have been

passed by the courts below validly and legally in accordance with law. It

is further contended in the objections that the petitioners have been

making attempts to grab the land in question from the respondents with

malafide intentions with the aid of the revenue field agencies.

Heard learned counsel for the parties and perused the

record.

6. Before adverting to the issues involved in the instant

petition, it would be appropriate and advantageous to refer to the nature,

scope and object of injunctions enshrine in Order 39 of CPC hereunder:-

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

(iii) (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)]."

7. As is evident from above, 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.

8. A reference to the following judgments of the Apex Court

would also be relevant and germane herein passed in case titled "Dalpat

Kumar and another Vs. Prahlad Singh and Others, reported in 1992 (1)

SCC 719, wherein following has been provided at paras 4 and 5:-

"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."

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

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

following qua interim-injunctions:-

"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."

10. Keeping in mind the above legal position, now the issues

raised in the petition may be addressed.

11. Indisputably, the respondents have purchased the land in

question pursuant to the sale deeds executed on 12.06.1981. Mutation

also stand attested in the relevant revenue records in their favour.

Thereafter, the petitioners as against the said material /record of the

respondents placed before the courts below have denied the ownership

and possession of the respondents qua the land in question, merely on the

basis of entries recorded in revenue records reflecting therein

predecessor-in-interest of the petitioners Om Parkash and his father in

possession of the land in question as also a report of the revenue officials

including receipts of Aabana/Water Tax and report of revenue official

thereof.

12. The possession of title deed in respect of an immovable

property in law is deemed to be the perfect title of the property held by

such person. The possession of such property is also deemed to be with

the person holding the said title deeds. The trial court while considering

the facts and circumstances of the case has exercised discretion qua the

grant of interim relief validly and legally, so also has the appellate court

tested the validity of the order of the trial court in terms of the impugned

order dated 06.02.2015 validly and legally and rightly upheld the same.

13. The object of making an order of interim relief in law is to

evolve a workable formula required in a particular situation keeping in

mind pros and cons of the matter. The trial court has rightly found the

respondents herein having a prima facie case and balance of convenience

in their favour, as also has rightly weighed competing

possibilities/probabilities of likelihood of injury the respondent-plaintiffs

may suffer if the injunction is withheld. The appellate court as well has

rightly analyzed and tested the order of the trial court while dismissing

the appeal of the petitioners.

14. The exercise of supervisory jurisdiction sought by the

petitioners in the instant petition in view of law laid down by the Apex

Court in Shalini Shayam Shetty & anr vs. Rajindra Shankar pati,

reported in 2010 (8) SCC 3291 cannot in the facts and circumstances of

the case be exercised on the principle laid down in the judgment (supra)

that High Court cannot, on the drop of a hat, in exercise of its power of

superintendence under Article 227 of the Constitution, interfere with the

order of the courts inferior to it and cannot as well act in exercise of this

power as a court of appeal over the orders of the subordinate courts,

inasmuch as, further the High Court cannot interfere to correct mere error

of law and fact or just because another view than the one taken by the

court subordinate to it is a possible view.

15. Having regard to the aforesaid analysis and the position of

law enunciated by the Apex Court in the judgments (supra) the exercise

of supervisory jurisdiction qua the impugned orders is not warranted in

the facts and circumstances of the case. Resultantly, the petition fails and

is, accordingly, dismissed along with connected IA(s).

OW 104 92/2014

1. The instant petition has been filed by the petitioners calling

in question the orders dated 17.07.2014 and 24.07.2014 (for brevity

'impugned orders') passed by the Court of Munisff, Jammu ( for brevity

'the trial court') in case titled Parshotam lal and others vs. Mohd. Rafiq

and others.

2. It is being stated in the petition that a civil suit came to be

filed by the respondents herein against the petitioners before the trial

court and one dead person, namely, Krishan Chopra seeking a declaration

for declaring the sale deed dated 12.06.1981 executed between the said

Krishan Chopra and the petitioners in respect of land measuring 04 Kanal

falling under Khasra No. 178 new situated at Village Chack Jaggar

(Marh), Jammu as null and void and also for declaring the respondents,

as owners in possession of the land in question on the ground of adverse

possession and with consequential relief of permanent prohibitory

injunction seeking therein that the petitioners herein be restrained from

selling and alienating the land in question to any person or cause any

interference into the possession of the respondents herein over the land in

question.

3. It is being stated that in the application for interim relief

accompanying the suit, the trial court vide interim order on 06.06.2013

directed maintenance of status quo on spot with respect of the suit land.

4. It is being stated that the petitioners herein filed written

statements as well as objections to the suit and the application for interim

relief inter alia stating therein that the suit has been filed against a dead

person i.e., Krishan Chopra, as such, the suit is not maintainable.

5. It is being next stated that the respondents herein after filing

of the written statements to the suit, the petitioners herein on 09.10.2013

filed an application for binging on record the legal representatives of the

deceased Krishan Chopra. The said application is said to have been

allowed by the trial court after objections came to be filed by the

petitioners herein to the same, vide order dated 17.07.2014 allowing the

son of the deceased Klrishan Chopra to be brought on record as legal heir

of the deceased.

6. It is being next stated that on 24.07.2014 when the case had

been fixed for further proceedings, the counsel for the respondents herein

requested the trial court for extension of interim direction initially granted

on 06.06.2013 and though the counsel for the petitioners herein resisted

the prayer on the ground that the order had never been extended from

time to time, yet the trial court extended the same till next date of hearing

i.e., 19.08.2014.

7. The petitioners thus, challenge the impugned orders in the

instant petition inter alia on the grounds that the same came to be passed

against the law and facts of the case and prejudicial to the interest of the

petitioners as also justice, equity and fair play. The impugned orders are

contended to have been passed by the trial court while exercising

jurisdiction illegally and with material irregularity and without

appreciation of facts and circumstances of the case.

8. Per contra, respondents have filed objections, wherein it is

contended that the petition is mis-conceived and not maintainable. It is

being stated in the objections that the impugned orders have been passed

by the trial court validly and legally. Petition thus, is prayed to be

dismissed.

Heard learned counsel for the parties and perused the

record.

9. Perusal of the record tends to show that admittedly the suit

came to be filed by the respondents herein against the dead person being

Krishan Chopra -defendant No. 5 in the plaint and that the said fact of his

death surfaced upon filing of written statement to the suit by the

petitioners herein, whereupon an application came to be field by the

respondents herein for bringing on record the legal representatives of the

said deceased. The trial court rightly entertained the application, allowed

the same while placing reliance on the judgment of the Apex Court titled

as Karuppaswsamy and others vs. C. Ramamurthy, 1993 (4) SCC 41,

and the judgment of this Court titled as Ghulam Nabivs. State, 2009 SLJ

(II) 533, thus, the impugned order dated 17.07.2014 does not call for any

interference.

10. So far as challenge thrown to order dated 24.07.2014 is

concerned, record tends to show that the trial court passed order of status

quo initially on 06.06.2013 in the application for interim relief and

extended the same in terms of order dated 02.07.2013, however,

thereafter did not extend the same till 24.07.2014, on which date the trial

court extended it at the request of the counsel for the respondents herein.

The trial court ought to have realized that initially when interim order

was passed on 06.06.2013 same was to remain in operation till next date

of hearing and was, accordingly, thus, extended on the next date of

hearing i.e., 02.07.2013, Thereafter the said order was never extended till

the passing of the impugned order dated 24.07.2014, thus, the interim

order can safely to be said to have lost its force after 02.07.2013. What

was prayed for by the counsel for the respondents herein on 24.07.2014

in essence was for grant of a fresh interim order against the petitioners

herein and in such a situation, the trial court was required to provide an

opportunity of hearing to the respondents herein to project their version

and to resist the grant of such fresh injunction.

11. The trial court has not done so, thus, has in the process erred

and has caused miscarriage of justice to the petitioners herein. The

impugned order, therefore, is not sustainable and is accordingly set aside.

However, setting aside of the impugned order dated 24.07.2014 shall not

stand in the way of the respondents herein from seeking any fresh interim

relief in their favour from the trial court and in the event any such prayer

is made, the trial court shall be free to consider the same after providing

an opportunity of hearing to the petitioners herein.

12. Viewed in the context what has been observed, considered

and analyzed hereinabove, the instant petition shall stand disposed of

along with connected IA(s).

13. A copy of this judgment shall be placed on the record of OW

104 92/2014

(Javed Iqbal Wani) Judge

Jammu 16.09.2021 Bir*

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

BIR BAHADUR SINGH 2021.09.22 11:06 I am the author of this document