Ghulam Mohammad & Anr vs Ghulam Hassan & Ors
2023 Latest Caselaw 634 j&K/2

       HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR
                                   OWP No. 934/2011


                                                             Reserved On: 16.05.2023
                                                          Pronounced On: 23.05.2023

     Ghulam Mohammad & Anr.                              ...Appellant(s)/Petitioner(s)
                                                                                   `


     Through: Mr G. A. Lone, Adv.
                                          Vs.
     Ghulam Hassan & Ors.                                           ...Respondent(s)

     Through: Mr Mir Majid Bashir, Adv.


     CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                    JUDGMENT

1. This petition has been preferred under Article 227 of the Constitution of India for quashing the order dated 11.05.2011 passed by the learned District Judge Kupwara (hereinafter referred to as 'the appellate court') whereby the appellate court while accepting the appeal filed by the respondent No.1 and setting aside the interim order dated 15.09.2009, passed by the Court of learned Sub-Judge, Kupwara (hereinafter referred to as 'the trial court'), has directed the petitioners to remove the obstruction erected by them on the suit property and permitted the respondents to use the said land as pathway to the land in their possession.

2. Mr G. A. Lone learned counsel for the petitioners has restricted his arguments only to the extent that the learned appellate court while accepting the appeal filed by the respondent No.1 and setting aside the interim order dated 15.09.2009 passed by the learned trial court could not have directed the petitioners to remove the obstruction raised on the pathway and permitted the respondents to use the same.

3. Per contra Mr Mir Majid Bashir, learned counsel for the respondents vehemently argued that the appellants after the passing of the interim order dated 15.09.2009 by the learned trial court had obstructed the pathway and the appellate court allowed the respondents to use the pathway as access to their orchards and he further submits that there is nothing wrong in the order passed by the appellate court by directing the petitioners to remove the obstruction erected by them on the said pathway. He further submitted that the learned appellate court has relied upon the report of the Commissioner, appointed by the trial court, to decide the appeal.

4. Heard and perused the record.

5. From the perusal of the record, it transpires that the petitioners filed a suit for injunction claiming to be the owners in possession of the land described as 'Bage Khushki' measuring 01 kanal and 07 marlas under survey no. 648, apprehending their dispossession from the property mentioned above. The trial court while entertaining the suit granted an ex-parte interim order restraining the respondents from causing any interference in the suit property till next date of hearing. The respondents caused their appearance and filed their written statement, thereby pleading that the suit land and the land under survey No. 647 measuring 05 kanals and five marlas i.e., total 06 kanals and 12 marlas was the proprietary land of Mohammad Shan S/O Sideeq Shah R/O Didwan Kupwara, who gave it to Abdul Gani Peerzada, i.e. the father of respondent no. 1 and the respondent no. 4, on an agreement that the father of the respondent no. 1 & the respondent No. 4 would develop the land into an orchard and whatever fruits were to be obtained from the orchard, were to be divided amongst them in equal proportion and as such, there was partnership between them and the parties executed a partnership deed on 7th October, 1975, which was registered by Sub Registrar Kupwara on 8th October 1975. In terms of the aforesaid partnership deed, the father of the respondent no. 1 and the respondent no. 4 remained in possession over the land and the said partnership continues till date and has not been dissolved. It was also pleaded that their possession over the land that is the subject matter of the partnership is also recorded in their revenue records. After the demise of Gani Shah, the respondent no. 1 & 4 are in occupation of land and until and unless the said partnership is cancelled, the land cannot be partitioned, as such, the land along with the trees standing therein are still undivided. It was also pleaded that the land comprises of two survey nos and is being used as ingresss and egress as pathway by the respondents to their property. It was also pleaded that the petitioners have obstructed the pathway of the respondents and that prompted the respondents to approach the revenue authorities for its removal and the petitioners apprehending that obstruction will be removed filed the suit. The contesting respondents also placed on record the application filed before the revenue officer along with the orders. The contesting respondents also filed objections to the application for grant of interim relief filed by the petitioners.

6. After hearing both the contesting parties, the learned trial court made the interim order absolute. The respondent No.1 filed an appeal against the order dated 15.09.2009 passed by the learned trial court and the learned appellate court accepted the appeal filed by the respondent no. 1 and set aside the order dated 15.09.2009 and further directed the petitioners/plaintiffs to remove the obstruction erected and permitted the respondents to use the said land as pathway to the land in their possession.

7. From the record, it is evident that the suit filed by the petitioners was for permanent prohibitory injunction and the respondents never filed any counter-claim to the suit, as such, never claimed any relief against the petitioners. It is also not the case of the respondents that they filed any application before the appellate court against the petitioners with regard to obstruction of pathway during the pendency of the appeal. The appellate court in an appeal against the order passed under Order 39 Rule (1) or (2) CPC can exercise similar powers as those of the trial court. The interim relief is always granted in aid to the main relief so as to protect the right of a party pending main suit and when a particular relief has not been prayed for by a party in the main suit, then the same cannot be granted as an interim relief, though the court can pass ancillary orders protecting the wastage, damage or alienation of the subject matter of the suit.

8. In 'the State of Orissa vs. Madan Gopal Rungta', '(1952 AIR SC

12)', the Apex Court has held:

".... An interim relief can be granted only in aid or, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding......"

9. Further in 'Cotton Corporation Limited vs. United Industrial Bank', '(1983) 4 SCC 625', the Apex Court has observed:

"10......But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted. In State of Orissa v. Madan Gopal Rungta a Constitution Bench of this Court clearly spelt out the contours within which interim relief can be granted. The Court said that 'an interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceeding'. If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted....."

10. The perusal of the order impugned reveals that the learned appellate court has, in fact, issued a mandatory injunction for removal of the obstruction in favour of the respondents/ defendants when no such prayer was made by the respondents/defendants in their written statement. In an appeal against the order passed under Order 39 Rule (1) or (2) CPC, the appellate court has to only examine as to whether the discretion exercised by the court of first instance is arbitrary or perverse or whether the court has ignored the settled principles of law regarding the grant or refusal of interlocutory injunction. If the appellate court finds that the order appealed against does not qualify the criteria required for upholding the same, it can set aside the order, but the appellate court cannot grant an interim relief to the party regarding which no relief has been sought in the suit or by way of counter claim.

11. This court is of the considered view that the learned appellate court has committed jurisdictional error by directing the petitioners to remove the obstruction and has exercised the jurisdiction not vested in it. The order passed by the learned appellate court has all the characteristics of a final order and ramifications which are final in nature. The petitioners have no other remedy and as such this is a fit case where this court deems it proper to exercise the jurisdiction vested in it under Article 227 of the constitution of India.

12. In 'Kishore Kumar Khaitan v. Praveen Kumar Singh', '(2006) 3 SCC 312', the Hon'ble Apex Court has held as under:

"11. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an ex parte order. From the order of the Additional District Court it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspects. The prima facie infirmities attached to the letter said to create the tenancy cannot also be ignored, since that transaction is the foundation of the plaintiff's claim of possession.

12. The High Court, we must say, has also not properly exercised its jurisdiction under Article 227 of the Constitution. In fact, it has failed to exercise its jurisdiction. Though the High Court rightly noticed that the burden was on the plaintiff to show that he was in possession on the date of the order directing the parties to maintain status quo and that he was dispossessed in violation of the subsisting interim order, it did not scrutinise the order to find out whether the requisite findings had been entered by the Additional District Judge on both those aspects. It did not even consider whether there was a clear finding that the plaintiff was forcibly dispossessed on 20-6-1998 as alleged by him. It did not also consider whether the finding on possession was rendered based on a discussion of the available evidence and whether the directions in the order of remand had been complied with. In short, in exercise of its jurisdiction under Article 227 of the Constitution, it behoved the High Court to consider whether the order of interim mandatory injunction was supported by the necessary findings. That is certainly a question of jurisdiction, since the jurisdiction to pass an interim mandatory order can only be based on such clear findings and the grant of an interim order without such findings would be acting without jurisdiction. We may incidentally notice that there is no prima facie material to indicate that on 20-6-1998 the plaintiff was, in fact, dispossessed by the defendants. We may in this context notice that the plaintiff could not show that he had either become a member of the tenants' association of the building or had entered into an arrangement with it for the consumption of electricity in terms of the alleged rental arrangement. We have already noticed that none of the occupants of the building was examined to prima facie show dispossession."

13. In view of what has been stated and discussed above, the order dated 11.05.2011 passed by the learned District Judge, Kupwara in an appeal titled 'Ghulam Hassan Peerzada v. Ghulam Mohammad & Ors.', to the extent of directing the petitioners to remove the obstruction on the suit land is set aside. This order shall however have no bearing upon the order (if any) issued by the Revenue Authorities for removal of obstruction from the suit land.

14. Disposed of.

;

(RAJNESH OSWAL) JUDGE SRINAGAR 23.05.2023 Hilal Ahmad