Reserved On: 27.05.2022 vs Mst Jana And Others
2022 Latest Caselaw 1790 j&K/2

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR
                            ...
                       FAO no.09/2021

                                                      Reserved on: 27.05.2022
                                                   Pronounced on: 18.10.2022
Mohammad Shaban Wani and others
                                                             .......Appellant(s)

                                 Through: Mr Z.A.Shah, Sr. Advocate with
                                 Ms Humaira Shafi, Advocate

                                    Versus

Mst Jana and others
                                                            ......Respondent(s)

                                 Through: Mr G.A.Lone, Advocate with
                                 Mr Mujeeb Indrabi, Advocate


CORAM:
           HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                               JUDGEMENT

1. In this appeal, Order dated 22nd February 2021, passed by Principal

District Judge, Budgam, whereby the court of Principal District Judge,

Budgam, in a civil suit titled as Mst Jana v. Mohammad Shaban Wani

and others, has restrained defendants before it, i.e., present appellants

and respondents 2 to 5, from alienating, creating any third party

interest or changing the nature of the suit property till final disposal of

the main suit, is under challenge on the grounds mentioned therein.

2. I have heard learned counsel for parties and considered the matter.

3. Learned senior counsel appearing for appellants, after making

submissions with regard to facts of the case, has submitted that in

view of the facts and circumstances of the case the Trial Court could

Page 1 FAO no.09/2021 not have passed the impugned order of injunction. He contends that

succession with respect to the property in question opened in the year

1954, when Ahmad Wani passed away and it is after more than 66

years, i.e., in October 2020, that respondent no.1 instituted a suit,

claiming that property is joint and this aspect of the matter has been

ignored by the Trial Court. It is also stated that the Trial Court had

ignored that within the period of 66 years mutation was effected in the

year 1960 and 1973 and none of the parties questioned these

mutations either before revenue authorities or otherwise and that

existence of mutations clearly establish that appellant no.1 was in

possession of whole property to the exclusion of respondent no.1 and

his other sisters. It is also contended that the Trial Court has lost sight

of the facts and legal position that claimant to property of late Ahmad

Wani at no point of time right after 1954 have claimed their share in

the property and on the contrary, appellants had established prima

facie that sharing was done between appellant no.1 and respondent

no.1 in accordance with customary law as was prevalent at that point

of time which law finally and conclusively determined rights of

parties.

4. According to learned senior counsel for appellants, when

plaintiff/respondent no.1 attained majority, the whole property left

behind by Ahmad Wani was partitioned and it was in the year 1973 that

respondent no.1 out of love, affection and freewill orally gifted

away her share of property falling under Khewat no.14 & 15 by virtue

of mutation no.244 dated 1st April 1973, to appellant no.1 as being her

Page 2 FAO no.09/2021 sole brother, who accepted and took possession thereof and since then

was in actual and physical possession without any interference or

claim. Besides, appellant no.1 received consideration/compensation

amount in lieu of acquisition of land measuring 03 Kanals,

approximately, by the Government of J&K through Railway

Department. It is also contended that plaintiff being fully aware about

the fact that she had already orally gifted through public declaration of

her share to appellant no.1, as such, she did not make any objection or

claim before competent authorities at the time of acquisition of land

by Railway Department and also when appellant no.1 sold a portion of

land way back in 2002. Learned senior counsel also submits that order

impugned has created confusion as it is the case of appellants that

shops stand alienated except to the extent retained by children of

appellants 2 to 4 and under law whatever interests' tenants have, they

have already been created and insofar as changing nature of suit

property is concerned, it is a vague expression.

5. Per contra, learned counsel for respondent no.1 has stated that

respondent no.1 is real sister of appellant no.1 and appellants 2 to 4

are daughters-in-law of appellant no.1 and that after death of father of

appellant no.1 and respondent no.1, the property left behind him

devolved upon appellant and respondent no.1. It is also stated that

although plaintiff/respondent no.1 approached defendant/appellant

no.1 for her share from the property left behind by their father, but he

declined, so she approached Patwari concerned in order to obtain

extracts in this regard and after obtaining the revenue papers, she

Page 3 FAO no.09/2021 came to know that defendant/appellant no.1 at the back of respondent

no.1/ plaintiff got sale deeds registered in favour of his daughters-in-

law. Respondent no.1 applied for certified copies of sale deeds, which

were provided to her on 30th September 2020. According to learned

counsel, respondent no.1 is entitled to one share and appellant no.1 is

entitled to two shares as per Muslim Personal Law, which entitlement

of respondent no.1 cannot be denied by appellant. He also states that

grant of interim relief by the Trial Court is to save the Lis.

6. In any civil dispute a Court has wide range of powers to deal with

various aspects of litigation and at various stages of litigation. In a

civil dispute parties file interlocutory applications seeking relief at

various stages of litigation. For example, condone delay in filing a

case; to grant ex parte injunction; to reject plaint; to appoint a

commissioner to ascertain factual aspects on ground; to implead / to

delete a defendant; to recall a witness; to mark a document, etc.

Various provisions of CPC guide the Courts to deal with such

applications. Order XXXIX of CPC is one such provision. It is

comprehensive, dealing with various contingencies, viz., to grant, to

vary the order already granted, to seek enforcement of the order so

made, interim custody/protection/sale of suit property/assets, etc.

7. The settled principle is that while passing an interim order of

injunction under Order XXXIX Rules 1 and 2 of CPC, the Court

needs to note three basic principles, namely, (a) prima facie case, (b)

balance of convenience / inconvenience, and (c) irreparable loss and

injury. The courts do not view consideration of applications for

Page 4 FAO no.09/2021 temporary injunctions as a matter of course or right, but one that

requires serious pondering. Considering these principles is not mere

rhetoric but have to be established beyond doubt in order to warrant

interim relief. Along with these essential requirements interim relief is

also viewed as an equitable and discretionary relief, where conduct of

party will also be examined. It is also settled principle that making out

prima facie case is not sufficient in the grant of interim relief. Court

must also find that along with prima facie case, refusal to grant the

relief will cause injury to the petitioner and in such a manner that it

would be irreparable in future course.

8. At the stage of considering injunction application, the court cannot

hold that plaintiff is most likely to succeed in the suit and the court is

only required to assess whether, prima facie case is made out on the

dispute raised in the suit, and whether a triable issue is made out.

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. Once this exercise is undertaken, Court then

proceeds to assess whether balance of convenience is in favour of

plaintiff, whether not granting injunction would result in greater harm

to plaintiff which cannot be remedied at the time of passing judgment

and decree and to weigh whether mischief or inconvenience likely to

cause to plaintiff if injunction is not granted is greater than granting

the injunction.

Page 5 FAO no.09/2021

9. In the present case, the Trial Court while passing impugned order has

discussed all aspects of the matter as was required for considering and

deciding the application for grant of ad interim relief and in order to

save the Lis, has passed order impugned, which need not be interfered

with by this Court and resultantly the appeal is liable to be dismissed.

10.For the reasons discussed above, the appeal is without any merit and

is, accordingly, dismissed with connected CM(s). Interim direction, if

any, shall stand vacated.

11.Copy of this judgement be sent to the Trial Court with the record, if

any, summoned/received from the Trial Court.

(Vinod Chatterji Koul) Judge Srinagar 18.10.2022 Ajaz Ahmad, PS Whether approved for reporting? Yes/No.

Page 6 FAO no.09/2021