Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Mochi And Ors vs Mohammad Yousuf Shah And Others on 7 December, 2021
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Supp list 1
Serial No. 198
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM No. 8022/201 in
CM (M) No 196/2021
Caveat No. 1945/2021
Ghulam Mohammad Mochi and Ors
Petitioner(s)/ Appellant(s)
Through: -
Mr Sheikh Hilal Ahmad, Advocate.
V/s
Mohammad Yousuf Shah and Others
.....Respondent(s)
Through: -
Mr. Abid Zahoor, Advocate for Caveator/Respondents
CORAM:
Hon‟ble Mr. Justice Sanjeev Kumar, Judge.
ORDER
07.12.2021
1. The petitioners are plaintiffs in a suit titled "Ghulam Mohammad Mochi and Ors. Vs. Mohammad Yousuf Shah and Ors.," subjudice before the court of learned Munsiff, Budgam, (for short „the trial court‟).
2. The suit of the petitioners pertains to the land measuring 07 marlas covered under Survey No. 1148 situate at Khansahib, Budgam, which as per the petitioners was got mutated in favour of the respondents 1 to 4, on the basis of allegedly, fraudulent oral gift deed. The petitioners also seek a decree of mandatory injunction directing the respondents 1 to 4 herein (defendants in the suit) to dismantle the construction made on the suit land upto plinth level and handover the vacant possession to the petitioners.
3. When the suit came up for consideration, the trial court vide its ad-interim ex-parte order dated 24.12.2020 directed the parties to the suit to maintain status-quo on spot with regard to the suit property. The matter was considered after the respondents herein filed objections and the trial court vide its order dated 15.09.2021, modified the order of status-quo passed on 24.12.2020 and restrained the respondents herein from alienating the suit property till final disposal of the case.
4. The order dated 15.09.2021, passed by the trial court was assailed by the petitioners herein before the court of Additional District Judge (Fast Track), Budgam in an appeal. The appellate court after hearing the parties and having gone through the record, upheld the order of trial court dated 15.09.2021 with the modification that the respondents herein shall furnish an undertaking before the trial court, to the effect that whatever construction they would raise on the disputed land shall be pull down/removed by them at their own cost, in case, the petitioners herein succeed in the suit. The petitioners are still aggrieved and are before this court in this petition filed under Article 227 of the Constitution of India.
5. Heard learned counsel for the parties and perused the contents of the plaint and the relief claimed in the prayer clause.
6. The petitioners have admitted the respondents to be in possession of the suit land. It is categoric case setup by the petitioners in their plaint that respondents 1 to 4 have unauthorizedly raised construction upto plinth level on the land jointly owned by the petitioners and proforma respondents. It is also not in dispute that there is a mutation attested in favour of the respondents 1 to 4, on the basis of oral gift deed which, as per the parties, is subject matter of challenge before the revenue courts.
7. Be that as it may, there is enough material on record to come to a prima-facie conclusion that the possession of the subject land is presently with respondents 1 to 4. The trial court vide its order dated 15.09.2021 has already provided that there shall be no alienation of the suit land by any of the parties and the appellate court while modifying the order of the trial court has further provided that in case the construction is raised by the respondents 1 to 4 on the suit land, the same shall be removed/pull down by them at their own risk and cost if, the petitioners herein ultimately succeed in the suit
8. That being the position, I find no illegality or infirmity in the order impugned. Given the nature of controversy involved for adjudication in the suit, the trial court as well as the appellate court have taken adequate care to see that the lis is preserved. The order passed by the trial court as also by the appellate court are apparently in favour of the petitioners. This court is, therefore, at loss to understand as to why the petitioners are before this court. May be they want their suit to be finally disposed of through interim orders but, unfortunately that is not permissible under law.
9. This petition is devoid of merit and is accordingly, dismissed, along with connected CM.
(Sanjeev Kumar) Judge Srinagar 07.12.2021 "Ishaq"
ISAQ HAMEED BHAT 2021.12.08 14:10 I attest to the accuracy and integrity of this document