Jammu and Kashmir High Court Direct Reconsideration of the Land Dispute Matter on Account of the Neglect of the Fundamental Issue

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In the present case, the Petitioner filed a suit for declaration with consequential relief of partition and possession. In addition, an application for interim relief against the Respondents was filed in respect to land that was claimed to be joint and unpartitioned property. The Court allowed the petition and directed the lower court to reconsider the matter.

Background

In the present case, the Petitioner filed a suit for declaration with consequential relief of partition and possession accompanied with an application for interim relief against the Respondents in respect of land which was claimed to be joint and unpartitioned property covered under Khewat no. 149 Khat No. 564, 565, 566, & 567 and covered under Survey Nos. 612, 607/01, 411, 1506/611, 1507/612 situated at Seer Hamdan Anantnag.

The Petitioner lodged the claim on the ground of inheritance being the daughter of Mst. Jana D/o Qudoos, one amongst the four sons of one Ama. Respondent No. 1 was stated to be the daughter of the other son of Ama namely Sanaullah. Besides Respondent No. 1, Sanaullah was stated to have two more daughters namely Saleema and Raja. Proforma Respondents 2 to 6 were stated to be legal heirs of another daughter of Qudoos namely Khurshi. The other two sons of Ama namely Rasool and Aziz were stated to have died issueless. The aforesaid land despite being ancestral property belonging to Ama (estate holder) was alleged to have been fraudulently and illegally incorporated in the name of Respondent No. 1 upon managing illegal mutations in the revenue records after the death of her father Sanaullah. The Petitioner claimed to have a definite share in the suit land along with proforma Respondents but was denied by Respondent No. 1 on account of aforesaid alleged illegal mutations/entries.  The Petitioner herein claimed that the suit land has to be devolved in two equal shares upon her and the proforma Respondents herein in equal shares akin to the Respondent No. 1 herein and her other two sisters after the death of their fathers namely Sanaullah and Qudoos as the said land had been left by the estate holder Ama.  Upon being denied her share in the suit land by Respondent No. 1 herein inasmuch as the partition of the same thereof, the Petitioner herein filed the suit. In the application for interim relief accompanied with the suit, the trial court passed an Order of status-quo initially on 01.06.2019 and dismissed the application. Further, the interim Order was vacated vide Order dated 04.11.2019. The Petitioner further filed an appeal against the Order dated 04.11.2019 before the court of Pr. District Judge Anantnag, which was also dismissed vide Order dated 27.11.2019. In the present petition, both the Orders dated 04.11.2019 and 27.11.2019 were impugned while invoking supervisory jurisdiction of this court under Article 227 of the Indian Constitution, fundamentally on the grounds that the impugned Orders are patently illegal and that the courts below failed to appreciate the case of the Petitioner herein in its correct perspective and in the process passed the impugned Orders beyond the scope of established principles of law governing the field of granting interim reliefs and also overlooking various judgements referred thereto being relevant to the controversy.

Arguments Before the Court 

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Mr.P. S. Ahmad, the learned counsel for the Petitioner reiterated the contentions raised and grounds urged in the petition and sought the quashing of the impugned Orders.

Mr Altaf Mehraj, the learned counsel for the Respondents, on the other hand, resisted the contentions raised and grounds urged in the petition and also raised a preliminary objection qua the maintainability of the petition while placing reliance on a judgment of the Apex Court in the case titled Radhey Shyam and Another v. ChhabiNath (2015) 5SCC 423.

Court’s Observations

The Court heard the learned counsels for the Petitioner as well as Respondent No. 1 and perused the record. The Court referred to the nature, scope and object of injunctions enshrined in Order 39 of the Civil Procedure Code (CPC). The Court also referred to a good number of cases of the Apex Court regarding the principles and other relevant things related to granting of injunctions. The Court tested the validity of the impugned Orders in view of these judgements while having regard to the case set up by the parties.

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After the perusal of the record, the Court found that conflicting claims were made and raised by the parties before both the courts below in their respective pleadings, which would require a full dressed trial affording an opportunity to the parties to substantiate their respective claims by leading evidence. The Court also observed that both the courts below had overlooked the fundamental issue confusing a prima-facie case with the prima-facie title and have failed to evolve a workable formula required in the situation.

The Court further observed that both the courts below, while passing the impugned Orders, conducted a mini-trial of the case, and have expressed opinions about the merits thereof while dealing with an application for interim relief which was a forbidden exercise. According to the findings of the Court, the matter has not received appropriate consideration by both the courts below and they have grossly erred in the exercise of jurisdiction vested unto them and have caused a miscarriage of justice, thus warranting exercise of supervisory jurisdiction by this court under Article 227 of the Constitution.

Furthermore, the Court said that the judgement of the Apex court in Radhey Shyam’s case relied upon by the learned counsel for Respondent No. 1 did not lend any support to the defendant’s case but instead supported the case of the Petitioner herein.

Court’s Decision

Keeping in view whatever has been observed, considered and analysed above, the Court allowed the petition and set aside the impugned Orders with a direction to the trial court to reconsider and revisit the application for interim relief afresh after hearing both the parties, who were supposed to appear before the Court on a stipulated date. Till then the parties were supposed to maintain the status quo with respect to the suit property.

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Click here to read the judgement.


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