Jammu & Kashmir High Court
Sheikh Mohd. Aslam & Anr vs Mahesh Singh Jamwal on 10 October, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 29.09.2025
Pronounced on: 10.10.2025
Uploaded on 10.10.2025
Whether the operative part or
full judgment is pronounced
Case No.:- CM(M) No. 227/2023
Sheikh Mohd. Aslam & Anr
.....Petitioner(s)
Through: Mr. R.P. Sharma, Sr. Advocate with
Mr. Shiv Kumar, Advocate.
Vs
Mahesh Singh Jamwal
..... Respondent(s)
Through: Mr. Aayush Pangotra, Advocate.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioners have invoked supervisory jurisdiction of this
Court under Article 227 of the Constitution of India for setting
aside order dated 17.09.2022 passed by learned Principal
District Judge, Jammu (hereinafter to be referred to as
"appellate court") whereby appeal against order dated
07.12.2019 passed by learned 3rd Additional Munsiff, Jammu
(hereinafter to be referred to as "trial court") has been
dismissed by upholding the said order, as a consequence
whereof, the parties have been directed to maintain status quo
on spot with regard to suit property falling in khasra Nos. 401
and 403 of village Chowadi, Jammu.
2. It appears that the respondent herein (hereinafter to be
referred to as "the plaintiff") has filed a suit for Permanent
Prohibitory Injunction against the petitioners (hereinafter to be
referred to as "defendants") before the trial court. In the said
suit, the plaintiff has sought a permanent prohibitory
injunction, restraining the defendants from interfering in any
manner over the land measuring 3 kanals and 3 marlas out of
which 2 kanals and 18 marlas are falling in khasra No. 403
min and 5 marlas are falling in khasra No. 401 min situated at
revenue village, Chowadi, Jammu.
3. As per case of the plaintiff before the trial court, he has
purchased the suit land by virtue of two sale deeds, one
registered on 12.04.1997 and the other registered on
24.04.1997 whereafter he was put in possession of the land in
question on the date of execution of the sale deeds. It has
been further submitted that the land in question has been
mutated in his favour. According to the plaintiff, after taking
over possession of the suit land, he has constructed plinth of
boundary wall on three sides of the plot and on one side, there
was already existing a barbed fencing at the time of the
purchase.
4. The plaintiff has alleged that the defendants have no right or
claim over the suit land but they are attempting and making
efforts to dispossess the plaintiff from the suit land in a
forcible manner. It has been further alleged that on
27.09.2016, the defendants tried to trespass into the suit land
and attempted to excavate it with the help of a JCB for the
purpose of raising construction on the said land but they
could not succeed in their design because of intervention of
people living in the locality. This prompted the plaintiff to
lodge a report with Police Post, Sainik Colony, Jammu. It has
been further alleged that on 29.09.2016, the defendants again
tried to interfere in the suit land by collecting building
material over there but they failed in their attempt.
5. On the basis of the aforesaid pleadings, the plaintiff has
sought a permanent prohibitory injunction against the
defendants and along with the suit, he filed an application
under Order XXXIX Rule 1 and 2 of the Code of Civil
Procedure before the trial court seeking an interim injunction
of similar nature.
6. The defendants contested the suit by filing their written
statement wherein they claimed that father of defendant No. 2,
namely, Sh. Aaj Din, had purchased land falling under khasra
Nos. 401 and 403 at village Chowadi, Jammu and mutation
was also attested in favour of father of defendant No. 2. After
the death of his father, mutation of inheritance was attested in
favour of defendant No. 2 and his brothers. It has been
pleaded that father of defendant No. 2 had sold some portion
of his land falling in khasra No. 401 and presently defendant
No. 2 and his brothers are in occupation of land measuring 10
kanals 1 marla falling in khasra No. 401 min. In a portion of
the said land, defendant No. 2 has raised the plinth for the
purpose of construction of wall, which is measuring 151 ft. in
length and 3 ft. in width adjoining the kacha road. It has been
submitted by the defendants in their written statement that
possession of defendant No. 2 in respect of land measuring 10
kanals 1 marla is clearly reflected in the name of defendant
No. 2 in the khasra girdawari. According to the defendants,
the plaintiff, on the basis of sham sale deeds, is laying claim
over the land comprised in khasra No. 401 min with regard to
which he has no concern at all.
7. The defendants raised a preliminary objection to the effect that
the suit land is not properly described in the site plan
attached with the sale deeds so as to identify the same, as
such, the suit is not maintainable. It has been further
contended that name of the plaintiff is not reflected in the
revenue record and, as such, there is nothing on record to
show that he is in occupation of any portion of land under
khasra No. 401 or 403. It has been submitted that even as
per the site plan annexed to Sale Deed dated 11.04.1997,
there is no mention of khasra no. 401, which means that Sale
Deed was executed only in respect of land measuring 1 kanal
3 marlas in khasra no. 403 though khasra No. 401 is also
mentioned in the Sale Deed. It has been claimed that in the
absence of any site plan relating to land measuring 5 marlas
comprised in khasra No. 401, the said portion of the suit land
is not identifiable but the plaintiff has got the construction of
work stopped over the land comprised in khasra no. 401 min.
It has been submitted that there is nothing on record to
establish that the land purchased by the plaintiff by virtue of
the two sale deeds is adjacent to each other. According to the
defendants, the plaintiff has never been in possession of any
land comprised in khasra Nos. 401 and 403.
8. It is pertinent to mention here that an application seeking
appointment of Commissioner for demarcation of the suit land
came to be filed by the plaintiff before the trial court, which
was allowed by the said court in terms of order dated
04.07.2017 whereby Assistant Commissioner (Nazool), Jammu
was appointed as the Commissioner to demarcate the suit
land. Report dated 26.07.2017 came to be submitted by the
Commissioner before the trial court. It appears that the
plaintiff has filed objections to the said report whereas the
defendants have not filed any objections to the said report.
9. After the submission of report by the Commissioner, the
defendants applied for permission to amend the written
statement. The permission was granted by the trial court and
the defendants filed amended written statement.
10. In the amended written statement, the defendants pleaded
that father of defendant No. 2-Aaj Din had purchased one-
third of land measuring 71 kanals comprised in khasra Nos.
401, 403, 404, 857 and 858 situated at village Chowadi vide
Sale Deed dated 18.03.1969 whereafter mutation in respect of
the said land was attested in his favour. It was further
pleaded that father of defendant No. 2 had sold land in khasra
No. 401 and at present defendant No. 2 and his brothers are
in occupation of land measuring 39 marlas in khasra No. 403
situated at Chowadi over which defendant No. 2 has raised
construction of wall in the said khasra number and the said
wall is measuring 151 ft. in length and 3 ft. in width. Thus,
the defendants, by incorporating the amendment, have set up
a different case in their amended written statement.
11. At the time of issuing summons in the main suit, the learned
trial court, vide its order dated 30.09.2016 passed an interim
ex parte direction whereby the parties were directed to
maintain status quo on spot. Interim application came to be
finally decided by the trial court vide order dated 07.02.2019
and it was directed that both the parties shall maintain status
quo on spot with respect to land falling under khasra No. 403
min situated at village Chowadi. The said order was assailed
by the defendants before the court of learned Principal District
Judge, Jammu in an appeal. Vide order dated 08.07.2019,
the learned District Judge set aside the order passed by the
learned trial court on 07.02.2019 and the matter was
remanded to the trial court to decide the application afresh
after hearing the parties.
12. After the matter was remanded to the trial court, a fresh order,
disposing of application of plaintiff under Order XXXIX Rule 1
and 2 CPC, came to be passed by the trial court on
07.12.2019 whereby while directing the parties to maintain
status quo on spot regarding the land falling under khasra No.
401 and 403 situated at village Chowadi, Jammu, the trial
court recorded a prima facie finding that possession of the
plaintiff over the suit land is established.
13. The aforesaid order came to be challenged by the defendants
by way of an appeal before the learned Principal District
Judge, Jammu who, vide impugned order dated 17.09.2022,
dismissed the appeal and upheld the order passed by learned
trial court on 07.12.2019. It is this order, which has been put
to challenge by the defendants/appellants through the
medium of the present petition.
14. The petitioners-defendants have contended that the impugned
orders passed by the trial court and the appellate court are
liable to be set aside because the plaintiff has failed to
establish any right in his favour with regard to the suit land.
It has been further contended that the courts below have failed
to appreciate that sale deeds on the basis of which the plaintiff
is claiming his right over the suit land are accompanied by
dasti site plan without there being any proper identification of
the land, which is subject matter of the said sale deeds. It has
also been contended that defendant No. 2 is the recorded
owner in possession of the suit land but this aspect of the case
has not been appreciated by the courts below. It has been
further contended that the material on record has not been
properly appreciated by the courts below while passing the
impugned orders.
15. I have heard learned counsel for the parties and perused the
grounds of appeal, the impugned orders and the trial court
record.
16. Before proceeding to deal with the merits of the contentions
raised by the petitioners/defendants for assailing the
impugned orders passed by the courts below, it would be
necessary to examine the nature and scope of jurisdiction of
the High Court under Article 227 of the Constitution of India.
In terms of the said Article, the High Court is vested with
supervisory power to ensure that all subordinate courts and
Tribunals exercise their powers within the bounds of their
authority. The Supreme Court in its various judgments has
discussed the nature and scope of power of the High court
under Article 227 of the Constitution. In order to understand
the legal position on this issue, it would be appropriate to refer
to some of these precedents.
17. The Supreme Court in the case of "Jai Singh and others vs.
Municipal Corporation of Delhi and another", (2010) 9 SCC
385, while considering the aforesaid aspect, has observed 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 cannot 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. The High Court cannot lightly or
liberally act as an appellate court and re-appreciate the
evidence. Generally, it cannot substitute its own
conclusions for the conclusions reached by the courts below
or the statutory/quasi judicial tribunals. The power to re-
appreciate evidence would only be justified in rare and
exceptional situations where grave injustice would be done
unless the High Court interferes. The exercise of such
discretionary power would depend on the peculiar facts of
each case, with the sole objective of ensuring that there is
no miscarriage of justice."
18. In a recent judgment in the case of "Garment Craft vs.
Prakash Chand Goel", (2022) 4 SCC 181, the Supreme Court
while explaining the power of the High Court under Article 227
of the Constitution, relied upon its earlier judgment in the case
of Estralla Rubber vs. Dass Estate (Pvt) Ltd. (2001) 8 SCC
97 and quoted with approval the following observations of the
aforesaid judgment:
"6. The scope and ambit of exercise of power and
jurisdiction by a High Court under Article 227 of the
Constitution of India is examined and explained in a
number of decisions of this Court. The exercise of power
under this article involves a duty on the High Court to keep
inferior courts and tribunals within the bounds of their
authority and to see that they do the duty expected or
required of them in a legal manner. The High Court is not
vested with any unlimited prerogative to correct all kinds of
hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate courts or tribunals. Exercise
of this power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of duty
and flagrant violation of fundamental principles of law or
justice, where if the High Court does not interfere, a grave
injustice remains uncorrected. It is also well settled that the
High Court while acting under this article cannot exercise its
power as an appellate court or substitute its own judgment
in place of that of the subordinate court to correct an error,
which is not apparent on the face of the record. The High
Court can set aside or ignore the findings of facts of an
inferior court or tribunal, if there is no evidence at all to
justify or the finding is so perverse, that no reasonable
person can possibly come to such a conclusion, which the
court or tribunal has come to."
19. From the preceding analysis of legal position on the subject, it
becomes clear that the High Court while exercising its power
under Article 227 of the Constitution of India has not to act as
an appellate court and substitute its own judgment in place of
the judgment of subordinate courts to correct an error. It is
also clear that the High Court has to exercise its supervisory
power with great care and caution. The power can be
exercised only if there is any flagrant abuse of fundamental
principles of law or justice. Even an error of fact or error of
law cannot form a ground to interfere in an order passed by
the subordinate court unless it results in manifest miscarriage
of justice.
20. With the aforesaid legal position in mind, let us now advert to
the facts of the present case. The plaintiff is basing his claim
with regard to ownership and possession of the suit land on
two sale deeds, one dated 12.04.1997 and other dated
24.04.1997. These sale deeds pertain to land measuring 3
kanals 3 marlas out of which two kanals and 18 marlas fall in
khasra No. 403 and 5 marlas fall in khasra No. 401 min
situated at village Chowadi, Jammu. It is true that these sale
deeds are not accompanied with aks tatima and the same are
accompanied with only dasti site map but the plaintiff in his
plaint has clearly delineated the boundaries of the suit land.
21. As per the report of the Commissioner appointed by the trial
court, which has not been objected to by the defendants, the
vacant plot, which is the subject matter of dispute between the
parties, does not fall in khasra No. 401 but whole of it falls in
khasra No. 403. It has been indicated in the report of the
Commissioner that on the western site of this plot, there is a
road whereas, on the eastern side of this plot there is barbed
wire and trees. This description of the disputed land tallies
with the description of land given by plaintiff in his plaint.
Therefore, the contention of the defendants that suit land is
not identified, prima facie, appears to be misconceived.
22. There is yet another aspect of the matter, which comes to the
fore from the material on record. In the initial written
statement filed by defendants, they have claimed that father of
defendant had sold some land in khasra no. 401 and at
present defendant No. 2 and his brothers are in occupation of
land measuring 10 kanals 1 marla in khasra No. 401 min on
which he has raised construction of wall measuring 151 ft. in
length and 3 ft. in width. However, when the Commissioner
submitted its report in which it was clarified that no portion of
the disputed land falls in khasra No. 401 and whole of the
disputed land falls in khasra No. 403, the defendants changed
their stance by amending their written statement. In the
amended written statement, the defendants claim that
defendant No. 2 and his brother, after their father had sold
land falling in khasra No. 401, are in occupation of 39 marlas
of land in khasra No. 403 over which defendant No. 2 has
raised construction of wall measuring 151 ft. in length and 3
ft. in width. Although the effect of this change of stance made
by defendants so as to bring it in consonance with the position
on spot described by the Commissioner, would be a matter of
trial but at this stage, prima facie, it can be stated that
defence set up by defendants in their written statement by way
of amendment appears to be an afterthought.
23. As against this, the plaintiff, from the very beginning, has
pleaded that he has raised construction of plinth of the wall on
the suit land, major portion of which is comprised in khasra
No. 403 min. Even the Commissioner has found that there is
a plinth constructed on the disputed land and there is barbed
wire fencing on the eastern side of the disputed land. Thus,
the features which have been found by the Commissioner on
spot tally with the features, which have been described by the
plaintiff in his plaint. This prima facie, substantiates the
stand taken by the plaintiff, which is also supported by the
response made by the revenue authorities to the RTI query of
the plaintiff wherein it has been stated that as of today, the
legal heirs of Aaj Din are not in possession of any portion of
the land in khasra Nos. 401 and 403.
24. In view of the foregoing analysis of the factual aspects of the
case, it is clear that the courts below while passing the
impugned orders have not committed any error of fact or error
of law while appreciating the material on record. Therefore,
this Court while exercising its powers under Article 227 of the
Constitution of India cannot interfere in the discretion
exercised by the learned trial court, which has been upheld by
the learned appellate court.
25. For the foregoing reasons, the writ petition lacks merit and is,
accordingly, dismissed.
(SANJAY DHAR)
JUDGE
JAMMU
10.10.2025
Naresh/Secy.
Whether order is speaking: Yes
Whether order is reportable: Yes
Naresh Kumar
