Jammu & Kashmir High Court - Srinagar Bench
Mir Arif & Others vs Mughli Begum&Others on 1 April, 2022
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
1
S.No.06
Regular Cause List
HIGH COURT OFJAMMU & KASHMIR AND LADAKH
AT SRINAGAR
MA NO. 124/2014
Reserved on 09-03-2022
Pronounced on 01-04-2022
MIR ARIF & OTHERS
...Petitioner(s)
Through: MR. G.A.LONE - ADV.
V/s
MUGHLI BEGUM&OTHERS .
...Respondent(s)
Through: MR.NISAR AHMAD BHAT - ADV.
CORAM:
Hon'ble Mr. Justice Rajnesh Oswal, Judge
ORDER
01-04-2022 01/ This appeal arises out of order dated 18-07-2014, (hereinafter referred to as impugned order), passed by the Principal District Judge, Badgam (hereinafter referred to as trial Court), by virtue of which the predecessor in interest of the appellants i.e. defendant No.1and respondent No.5, i.e. defendant No.2 before the trial court were restrained from causing any sort of interference into the possession of the predecessor in interest of the respondent Nos.1to 4 i.e. the plaintiff before the trial court, over the land measuring 25 kanals, comprised under different survey numbers, 1089 min. (3kanals 8 Marlas),1091 min. (5 kanals and 7 marlas),1901/1891/1091 min. (12 marlas), 1901/1091/1090 min. (8 marlas), 1904/1894/1855/1092 min. (3 kanals and 12 marlas), 1123 min. (2 kanals and 9 marlas), 1124 min. (2 kanals and 16 marlas), 1125 min. (10 marlas), 1130 min. (1 kanal and 12 marlas ), 1131 min. (2 kanals and 5 marlas) and 1132 min. (19 marlas), situated at village Kralpora, Tehsil Chadoora, District Badgam.
202/ It needs to be noted that both the original appellant, i.e. defendant No.1 in the suit and respondent No.1 i.e. the original plaintiff in the suit, have expired and their legal representatives have been brought on record vide orders dated 23/02/2017 and 18/05/2018 passed in MP No.1/2017 and MP.1/2018 respectively.
03/ The order dated 18-07-2014has been assailed primarily on the ground that the learned trial court, while deciding the application filed by the predecessor in interest of the respondent Nos.1-4 for grant of interim relief, has virtually conducted a mini trial in the case and the material evidence has been completely ignored. It is stated that no person of ordinary prudence would make a gift of his property to a stranger and the story of Hiba bil Iiwazhas been negated by the contents of the plaint itself and the mutations also have been found to be a fraudulent exercise by the Enquiry Officer, resulting in to setting aside of the same by the Financial Commissioner (Revenue). In nut shell, case of the appellant is that the predecessor in interest of the respondent Nos. 1to 4 had no case for grant of interim injunction and also no balance of convenience was in his favour as well and further grant of injunction has resulted in more injury to the predecessor in interest of the appellants, who was the owner in possession of property i.e. orchard in dispute. Besides these objections, certain objections with regard to the maintainability of the suit have been raised in the present appeal, those may not be relevant for the purpose of disposal of the appeal.
04/ Mr. G.A.Lone, learned counsel appearing for the appellant, vehemently argued that the predecessor in interest of the respondent Nos.1 to 4 had earlier filed two suits and as per his own admission, in paragraph 14 of the plaint, he had mentioned payment of Rs.9/- lacs as sale consideration in the earlier suit and the said admission has been sought to be withdrawn by specific averment in the plaint that the predecessor in interest of the respondent Nos.1 to 4 had wrongly referred the said amount as sale consideration in the earlier suit. He further argued that the mere perusal of the plaint would reveal that pleadings with regard to the Hiba bilIwiz is in fact the amount of the sale of the land in dispute and he further stressed that in the receipt also, relied upon by the predecessor in interest of therespondent Nos.1 to 4, the amount, allegedly received by the predecessor in interest of the appellants, has been referred to as sale consideration and 3 that too is not in the name of predecessor in interest of the respondent Nos. 1 to 4 but the respondent No. 5. It is also contended by Mr. Lone that the suit property was in possession of predecessor in interest of the appellants, after the same was handed over to him by the Tehsildar in the year 2009. In the revenue records i.e. Record of Rights, Girdawari, the predecessor in interest of the appellants has been shown as owner in possession of the suit property. He further laid stress that the mutations, relied upon by the predecessor in interest of the respondent Nos.1 to 4, stand cancelled pursuant to the order of the Financial Commissioner and the whole claim of predecessor in interest of the respondent Nos. 1 to 4 was in fact based on the said mutations. Even the writ petition filed by the predecessor in interest of the respondent Nos. 1 to 4 against the order of Financial Commissioner has been dismissed by this Court. He also urged that the learned trial court has placed heavy reliance upon the report of the Commissioner by invoking provisions of order 26 CPC whereas the commissioner was not appointed in terms of Order 26 CPC. He also submitted that the report of the Commissioner is nothing but a judgement pronounced by the Commissioner after exercising all the powers of a Civil Court, that was not at all permissible in law. He also submitted that in the plaint there is no whisper about the date and month when the suit property was gifted by the predecessor in interest of the appellants to predecessor in interest of the respondent Nos. 1 to 4.
05/ Per contra, Mr. Nisar Ahmad - learned counsel for the respondent, vehemently argued that the predecessor in interest of the respondent Nos. 1 to 4had been in possession of the suit property right from the year 1998 after the oral gift of the suit land was made in his favour by predecessor in interest of the appellants and in return he received different amounts as is evident from the receipt dated 25-05-1998. He also argued that water charges were also being paid by the predecessor in interest of the respondent Nos.1 to 4and further that the learned trial court has rightly relied upon the report of the Commissioner who came to the conclusion that the predecessor in interest of the respondent Nos.1 to 4 was in possession of the suit land. He laid much stress that there is no infirmity in the order impugned that warrants any interference by this court. Mr. Nissar, relied upon the decision of Apex Court in case titled "Maharwal Khewaji Trust vs. Baldev Das reported in (2004)8SCC488.
406/ Heard and perused the record. 07/ The facts necessary for disposal of the present appeal are that
the predecessor in interest of the respondent Nos.1to4 filed a suit for declaration, thereby declaring him as lawful owner in possession of the suit land measuring 25 kanals, comprising different survey Nos. situated at village Kralpora, Tehsil Chadoora, District Badgam, and a relief for issuance of decree of permanent prohibitory injunction for restraining the predecessor in interest of the appellants and respondent No.5 from causing any sort of interference into his peaceful possession over the suit land, was also sought. The said suit was filed on the ground that the suit land was gifted to him by the predecessor in interest of the appellants, way back in the year 1998 by way of oral gift to the predecessor in interest of the respondent Nos.1 to 4 in the year 1998 itself and in return he received an amount of Rs. 09/- lacs through respondent No. 5 as is evident from the receipt dated 25-05-1998 and further a sum of Rs. 1.80 lacs was received as Hiba bil Iwiz by the predecessor in interest of the appellants in presence of the revenue authorities and other witnesses and thereafter various mutations were attested in favour of the predecessor in interest of the respondent Nos.1 to
4.The predecessor in interest of the respondent Nos.1 to 4 as such claimed to be continuously enjoying peaceful possession of the suit property since 1998 when the oral gift was made in his favour and possession was handed over to him. The predecessor in interest of the respondent Nos.1to 4also pleaded that he had been paying the water charges to the concerned department. It was stated that the predecessor in interest of appellants became dishonest and challenged the validity of the mutations before the revenue authorities and the same were set aside by the Financial Commissioner. Thereafter predecessor in interest of the appellants started interfering into the peaceful possession of the predecessor in interest of the respondent Nos.1 to4 and that compelled him to institute a Civil suit which was transferred by the learned District Judge, Srinagar, to the Sub Judge, Srinagar, who later on returned it to be presented before the proper court as the said court lacked jurisdiction. The predecessor in interest of the respondent Nos.1 to 4thereafter presented a suit in the year 2004 and the same was transferred to Sub-Judge Chadoora, who too returned the plaint on 03-01-2013 to the predecessor in interest of the respondent Nos.1 to 4for presenting the same before the proper court and 5 thereafter the instant suit was filed by the predecessor in interest of the respondent Nos.1 to 4. It was also pleaded in paragraph 14 of the plaint that predecessor in interest of the respondent Nos.1 to 4, while instituting the earlier suit that was returned to him under order 7 rule 10 CPC, had wrongly asserted that he had paid Rs. 09/- lacs to the predecessor in interest of the appellants as sale consideration.
08/ The respondent No.5filed the written statement admitting the claim of the predecessor in interest of the respondent Nos.1 to
4.Thepredecessor in interest of the appellants filed his written statement and pleaded that he was the exclusive owner of 23 kanals and 18 marlas of orchard along with 4 houses on the said land and till date he continued to be in possession thereof. It was stated that the predecessor in interest of the appellants, in the year 1998,entered into negotiations with respondent No. 5 for sale of the said land along with 04 structures. The verbal deal was fixed between the parties after the settlement of total sale consideration in lump sum. As the major portion of this land was mortgaged with the Land Development Bank, therefore it was not possible for him to enter into Sale Deed with respondent No. 5 and some advance was also received by the predecessor in interest of the appellants. The predecessor in interest of the appellants and respondent No. 5 approached the Patwari Halqa for issuance of revenue extracts but the Patwari Halqa objected to the sale of huge quantity of land in a single transaction as the revenue rules, in vogue for sale of land at the relevant time, permitted only 02 kanals of land to be sold and for the rest of land, necessary permission was required to be obtained from the competent authority i.e. Tehsildar. The Patwari also stated that a major portion of the land is mortgaged with the Bank and that is required to be released by the owner and till then no extract can be issued for sale of land by him. The predecessor in interest of the appellants approached the Bank for settlement of loan and that was finally liquidated in the month of October 1998. After the liquidation of loan, the predecessor in interest of the appellants approached the Patwari Halqa again for issuance of revenue extracts along with respondent No. 5 and the Patwari Halqa obtained signatures of the predecessor in interest of the appellants on some blank papers in presence of witnesses at his residence and the Patwari assured the predecessor in interest of the appellants that he has to prepare documents for 6 securing permission as per revised revenue rules. Thereafter the predecessor in interest of the appellants approached the Patwari but he avoided to issue the revenue extract on one pretext or the other. The predecessor in interest of the appellants went to his land when he obtained the knowledge that some persons had been working on his land and on enquiry he found the predecessor in interest of the respondent Nos.1 to 4 and his associates on the spot and they stated that the predecessor in interest of the respondent Nos.1 to4 had entered in his own name as owners in the record and had obtained the documents from the Patwari Halqa. Thereafter predecessor in interest of the appellants came to know that number of mutations of oral gift have been made with regard to the said land in the name of predecessor in interest of the respondent Nos.1 to 4, who was never known to the predecessor in interest of the appellants. Thereafter the predecessor in interest of the appellants made a complaint before the Financial Commissioner and the enquiry was conducted. The Financial Commissioner being satisfied with the enquiry, directed the Tehsildar, Settlement, Chadoora, to inform the predecessor in interest of the appellants to file an appeal/revision, as the case may be, before the appropriate forum. The predecessor in interest of the appellants thereafter filed a revision petition against the fraudulent mutations before the Financial Commissioner. During pendency of the revision petition, the land was kept under custody of two local residents of the village vide order dated 23.10.2002. Finally, the Financial Commissioner passed an order setting set aside the mutations attested in favour of the predecessor in interest of respondent Nos.1 to 4 vide order dated 28.03.2005.The order of the financial Commissioner was challenged by the predecessor in interest of the respondent Nos.1 to 4 by way of a writ petition bearing OWP No. 157/2005.The predecessor in interest of appellants also mentioned the various activities of the predecessor in interest o frespondent Nos.1to 4 including the registration of FIR, the same may not be relevant for the purpose of consideration of the present appeal. It is also stated that the predecessor in interest of respondent Nos.1 to 4 was an aggressor and had entered upon the land on the basis of fraudulent mutations and the suit property was kept upon the supurdnama of the two local inhabitants but was handed over to the predecessor in interest of appellants by the Tehsildar concerned. After hectic efforts, the land was handed over to the predecessor 7 in interest of appellants and the necessary entries were also made in the revenue records, i.e. Record of rights and Girdawari and ever since then the land had been in his possession. It is also stated that no gift was ever made by him and also that no amount has been received by him from the predecessor in interest of respondent Nos.1 to 4. It was also pleaded that the story of handing over of the possession is wrong and further the predecessor in interest of appellants neither made any admission before any Tehsildar nor he was ever summoned by the revenue officers with regard to the oral gift. The predecessor in interest of appellants also denied to have received the payment of Rs. 1.80/- lacs before the Tehsildar at the time of attestation of the mutations. In nutshell the defense of the predecessor in interest of appellants was that he never made any gift and never received any amount from the predecessor in interest of respondent Nos.1 to 4 and the predecessor in interest of appellants has been in possession of the land as he had received it from the Tehsildar.
09/ Along with the aforementioned suit, the predecessor in interest of respondent Nos.1 to 4 also filed an application for grant of interim relief, in which a prayer was made for restraining the predecessor in interest of appellants and respondent No. 5 i.e. the defendant No.2 in the main suit, from interfering in the possession of the predecessor in interest ofrespondent Nos.1 to 4. The learned trial court, vide order dated 23-03-2013, directed the maintenance of status quo with regard to the subject matter of the said property. Thereafter the learned trial court, after hearing arguments of both the parties, modified the order dated 23-03-2013 and vide order dated 18-07- 2014 temporarily restrained the predecessor in interest of appellants and respondent No. 5from interfering into the possession of the predecessor in interest of respondent Nos.1 to 4 over the suit property.
10/ Before considering the rival contention of the parties it requires to be noted that though the predecessor in interest of the respondent Nos.1to 4 filed the suit for 25 kanals of land comprising different survey Nos but the total land as reflected in the survey numbers as mentioned in the plaint comes out to be 23 Kanal and 18 Marlas.
11/ The suit for declaration of ownership was filed by the predecessor in interest of the respondent No.1to 4 on the ground that the 8 predecessor in interest of the appellants had gifted the suit property to him in the year 1998 by way of oral gift and in return i.e. Bil-Iwaz, the predecessor in interest of the appellants received a sum of Rs. 9 lacs through respondent No. 5 i.e. Rs. 12000/ on 05/04/1998, Rs. 20,000/ on 25/05/1998 and Rs. 7,50,000. The decree of permanent prohibitory injunction was also sought by the predecessor in interest of the respondent No.1to4 for restraining the predecessor in interest of the appellants and respondent No.5 from interfering with his possession over the suit property.
12/ The contention of appellants is that there is no receipt issued by the predecessor in interest of appellants in favour of the predecessor in interest of respondent Nos.1 to 4 and the receipt allegedly is issued in the name of respondent No.5. As also the averment made in para 14 of the plaint reveals that the predecessor in interest of respondent Nos. 1 to 4 has stated that in the earlier suit, he had wrongly mentioned the sum of Rs. 9 lacs paid by him as sale consideration. It was also urged that in the plaint there is no whisper about the date and month when the suit property was gifted by the predecessor in interest of the appellants to predecessor in interest of the respondent Nos.1 to 4 and also that the perusal of the receipt dated 25/05/1998 reveals that sum of Rs. 7,50,000/ has been allegedly received by the predecessor in interest of theappellants on account of sale of land at Kralpora and not on account of oral gift.
13/ There is not even an iota of doubt that the oral gift is permissible under Muslim personal law but in the instant case the plea of the predecessor in interest of the respondent Nos.1 to 4 was not with regard to hiba simplicitor but hiba-bil-iwaz (Gift in return) and it is contended by the Learned Counsel for the appellants that even if for the sake of arguments, the contention of the respondent Nos.1 to 4 is admitted to be true even then the transaction is sale and the suit itself is not maintainable. Precisely, the submission of appellants is that the suit was not maintainable. The contentions as mentioned above raised by the appellants cannot be termed as baseless but the same pertain to the merits of the case. In Babu Lal v. Vijay Solvex Ltd., (2014) 16 SCC 680,Hon'ble Apex Court has observed as under:
"7. We have heard the learned counsel for the parties and have perused the record. In the present case, the parties have raised similar pleas which were taken before the High Court. However, we are of the opinion that 9 while dealing with a matter relating to vacation of order of temporary injunction, it was not open for the High Court to give a finding on the main issue relating to maintainability of the suit and the family settlement reached between the parties."
14/ As such this Court being conscious of the fact that no finding is required to be returned with regard to the merits of the claim of the parties while considering an appeal arising out of the interim order, as such this Court without determining the existence as well as validity of transaction as alleged by the predecessor in interest of the respondent No.1 to 4, would proceed to determine as to whether the order impugned has been passed by the Ld. trial Court within the parameters of law laid down by Apex court in various pronouncements.
15/ In Dalpat Kumar v. Prahlad Singh, reported in (1992) 1 SCC 719, Hon'ble Apex Court has held as under:
"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 which 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."
16/ In M. Gurudas v. Rasaranjan, (2006) 8 SCC 367 Hon'ble
Apex Court has held as under:
"21. While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the 10 plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only a mere triable issue."
17/ In an application for grant of interim relief, the predecessor in interest of the respondent No.1to 4 had prayed for the following relief:
"In the premises it is therefore prayed that till final disposal of the main suit the defendants/non-applicants be restrained from causing any sort of interference into the peaceful possession of the plaintiff over the suit property, that will secure the ends of justice"
18/ Since the predecessor in interest of the respondent No.1- 4prayed for protection of his possession over the suit property by way of application for grant of interim relief, so it is to be seen whether he has been able to establish prima facie case demonstrating his possession over the suit property. The suit was filed on 23.03.2013. From the record it is evident that the mutations attested in favour of the predecessor in interest of the respondent Nos.1to 4 have been set aside by the Financial Commissioner vide order dated 28/03/2005 and even the writ petition challenging the order of the Financial Commissioner has been dismissed by this Court vide order dated 27/06/2016 passed in OWP No. 157/2005. From the documents placed on record by the predecessor in interest of the appellants it transpires that the possession of the land, that was the subject matter of the mutations was handed over to the predecessor in interest of the appellants on 14/11/2009 through Tehsildar, Chadoora. Even in the record of rights and Girdawri, the suit property has been shown to be in possession of the predecessor in interest of the appellants. In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565 it has been held by the Apex Court that a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act. The predecessor in interest of the respondent No. 1to 4 has relied upon the receipt of water charges so as to demonstrate that he was in occupation of the suit property. When the revenue documents demonstrate the possession of the property lying with the predecessor in interest of the appellant, the receipt of water charges cannot be considered as a document evidencing the possession of the predecessor in interest of the respondent No.1to 4. The Ld. trial Court while 11 modifying the order of status quo to temporary interim injunction has placed much reliance upon the report of Commissioner and has also observed that report of the Commissioner and the evidence taken by him shall be evidence in the suit by resorting to order 26 rule 10 CPC. The Ld. trial Court has made this observation oblivious to the settled position of law that Commissioner under order 26 rule 9 is appointed only for the purpose of elucidating any matter in dispute or ascertaining the market value of the property or amount of mense profits or damages or annual net profits. The Ld. trial court vide order dated 25/06/2014 had appointed the Commissioner to visit the spot and apprise the court with a detailed report with regard to the subject matter of the suit property existing on spot. He was not appointed for the purpose of recording statement of witnesses and report about the possession of the suit property. The Commissioner was appointed only under Order 39 Rule 7 CPC. Strangely enough the Commissioner recorded statements of the persons on spot and filed the report thereby narrating that the predecessor in interest of the respondent No.1 to 4 was in possession of the suit property and in fact he has collected the evidence, which is not permissible under law. The Commissioner has prima facie travelled beyond the scope of his authority to examine the witnesses and rather he conducted a trial on spot. The Ld. trial Court despite objections by the predecessor in interest of the appellants relied upon the said report of the Commissioner so as to return a prima facie finding with regard to the possession of the predecessor in interest of the respondent No.1 to 4 over the suit property. This Court has no hesitation to hold that the reliance placed upon by the said report by the Ld. trial Court was unwarranted under law. More so, the learned trial court has not considered the revenue record while deciding an application for grant of interim relief. Therefore, the finding returned by the trial court that the predecessor in interest of the respondent No. 1 to 4 has been able to prima facie establish his possession over the suit property is not sustainable in the eyes of law and rather the predecessor in interest of the appellants was in possession of the suit property. This court is of the considered opinion that the predecessor in interest of the respondent Nos. 1 to 4 had miserably failed to demonstrate his possession over the suit property at the time of filing of the suit as the receipt of possession dated 14/11/2009 coupled with the revenue record makes it explicitly clear that the 12 predecessor in interest of the appellants was in possession of the suit property when the suit was filed.
19/ As per law laid down by Apex Court in judgments (supra), all the three essential requirements i.e. 1. Prima facie case, 2. Irreparable injury and 3. Balance of convenience must co- exist for issuance of interim injunction. If even one is absent, the interim injunction cannot be granted. As this court has already come to conclusion that the Learned trial court has wrongly returned the finding that predecessor in interest of the respondent No. 1 to 4 has prima facie demonstrated his possession, therefore there is no need to evaluate the order for the purpose of determining the balance of convenience and irreparable Injury. The judgment relied upon by Mr. Nissar, learned Counsel for the respondent Nos. 1-4, in case titled "Maharwal Khewaji Trust vs. Baldev Das reported in (2004)8SCC488is not applicable in the present facts and circumstances of the case as in the said case the prayer was made by the plaintiff there in, not to permit the defendant to alienate and raise construction over the suit property and the interim injunction was granted. However, the appellate court therein modified the order. In that context the Hon'ble Apex Court passed the said judgment.
20/ In view of above, the present appeal is allowed and the order impugned dated 18/07/2014 passed by Principal District Judge, Badgam in suit titled "Abdul Salam Bangroo vs. Abdul Hamid Mir & Anr." is set aside and the application for interim relief is dismissed. Needless to say that any observation made herein before shall have no bearing upon the merits of the case.
(RAJNESH OSWAL) Judge Srinagar 01-04-2022 TARIQ MOTA, secy.
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No