Jammu & Kashmir High Court - Srinagar Bench
Ghulam Nabi Turray vs Shafiq Ahmad Turray & Ors on 26 November, 2020
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)
OWP No.1681/2011
Reserved on: 17.11.2020
Pronounced on:26.11.2020
Ghulam Nabi Turray ...Petitioner
Through: - Mr. M. A. Qayoom, Advocate.
Vs.
Shafiq Ahmad Turray & Ors. ...Respondents
Through: - None.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1) Ghulam Qadir Turray, father of respondent No.1 to 5 and husband of respondent No.6, filed a suit for permanent injunction against the petitioner herein, before the Court of Munsiff, Shopian, stating therein that he has a two storeyed concrete residential house upon a piece of land falling under Survey No.15 of Village Gagran Tehsil Shopian, wherein he is living along with his family members for a pretty long time. It was also stated in the suit that the petitioner herein has also a residential house on a piece of land falling under survey No.12 of Village Gagran wherein he is residing. It was also pleaded by the plaintiff in the suit that there is a pathway of 10 feet width measuring 3 marlas leading from one side of survey Nos.9, 10 and 12 of village Gagran Shopian to his house. Further it is pleaded in the suit that in an earlier suit filed by defendant (petitioner herein), the parties had arrived at a compromise by agreeing that the MOHAMMAD ALTAF BHAT 2020.11.26 15:50 pathway and other easementary rights shall not be disturbed by the parties I attest to the accuracy and integrity of this document 2 OWP No.1681/2011 for ever. In the suit, it is also claimed that the petitioner by taking law in his own hands has started interference into the peaceful usage of the pathway and that he has started damaging the said pathway by digging trenches which has caused great loss to the plaintiffs.
2) The trial court, vide its order dated 22.08.2002, while considering the application for grant of temporary injunction filed alongside the suit, temporarily restrained the non-applicant (petitioner herein) from digging any trench upon the pathway passing through Survey Nos.9 and 10 through any means from one side of survey No.12 to the house of respondents, constructed upon survey No.15 of Village Gagran Tehsil Shopian till further orders.
3) The order dated 22.08.2002 (supra) was challenged by the petitioner herein before this Court through the medium of Civil Revision No.125/2020, which was allowed by this Court vide order dated 30.05.2003. The order passed by the trial court was set aside and the trial court was directed to re-hear the parties after taking objections of the defendants and thereafter decide the matter afresh.
4) In the petition it is pleaded that after passing of order dated 30.05.2003 by this Court, the petitioner herein filed his written statement before the trial court, wherein besides other things, it was pleaded that in terms of sale deed executed on 01.01.1983, petitioner and one Shafiq Ahmad Turray purchased a piece of land measuring 01 kanal 13 marlas from one Haji Abdullah Mir for residential purposes, subsequently petitioner filed a suit against the respondents and others on 22.09.1992 in MOHAMMAD ALTAF BHAT 2020.11.26 15:50 I attest to the accuracy and integrity of this document 3 OWP No.1681/2011 the Court of Sub Judge, Shopian, wherein a compromise was arrived at between the parties on 23.09.1992. In the compromise, besides other properties, the aforesaid land measuring 01 kanal and 13 marlas covered by Survey No.12 along with two storeyed house was exclusively given to the petitioner. In the written statement it was also stated that the land which fell to the share of the petitioner had no independent approach, therefore, he entered into an agreement with one Abdul Rashid Turray, who gave him land measuring 344 sft (43' x 8') from survey No.545/13 and in exchange took land measuring 592 sft. From the proprietary land of the petitioner covered by survey No.12, which patch of land became pathway and approach road to the land and residential house of the petitioner covered by survey No.12.
5) The trial court by virtue of order dated 07.08.2004 finally decided the application for grant of temporary injunction and directed the parties to maintain status quo with regard to the suit property till final disposal of the suit.
6) Feeling aggrieved, the petitioner herein assailed order dated 07.08.2004 in an appeal before Principal District Judge, Pulwama, which later on came to be transferred to the Court of Principal District Judge, Shopian. It is pleaded in the petition that under the garb of status quo order dated 07.08.2004 passed by the trial court, the respondents removed the main gate separating the petitioner's land from the land of the respondents and also erected an electric pole thereon and in August, 2008, the respondents also removed construction material dumped by the MOHAMMAD ALTAF BHAT 2020.11.26 15:50 I attest to the accuracy and integrity of this document 4 OWP No.1681/2011 petitioner in order to construct a pathway for own vehicles. The petitioner informed the trial court about the said fact and the trial court vide order dated 01.09.2007 directed SDPO, Shopian, to ensure maintenance of status quo on spot in letter and spirit. But the respondents on 24.01.2010, when the petitioner was out of State, removed the two outlet pipes of the residential house of the petitioner and also took away two truckloads of building material from the spot. They also brought several truckloads of material and spread it on the suit land and constructed a pathway. All this happened, it is contended, during the pendency of the appeal in the Court of District Judge, Shopian. Since the appellate court did not decide the appeal despite repeated requests made by the petitioner, a civil transfer application bearing No.04/2010 was filed by the petitioner before this Court seeking transfer of the appeal from the Court of Principal District Judge, Shopian, to any other court of competent jurisdiction for disposal in accordance with law. The transfer application was disposed of by this Court on 25.03.2010 by directing the appellate Court to decide the appeal within two weeks positively.
7) Pursuant to the order aforesaid passed by this Court, the appeal was heard and decided by the Principal District Judge, Shopian, in terms of order dated 27.04.2010, whereby the order passed by the trial court directing maintenance of status quo, was upheld and the appeal was, accordingly, dismissed.
8) Dissatisfied with order dated 27.04.2010 passed by the appellate court, petitioner has filed the instant petition.
MOHAMMAD ALTAF BHAT 2020.11.26 15:50 I attest to the accuracy and integrity of this document 5 OWP No.1681/2011
9) Respondents have chosen not to appear and contest the case.
10) Having heard learned counsel for the petitioner and perused the record, it appears that the primary grouse of the petitioner is that the order of trial court dated 07.08.2004 upheld by learned Principal District Judge, Shopian, vide its order dated 27th of April, 2010, whereby the parties have been directed to maintain status quo with regard to suit pathway, is not sustainable for the reason that both the courts below have failed to appreciate that in the suit filed by the predecessor-in-interest of the respondents, the description and identity of the suit pathway was not clearly indicated. It is, thus, argued that the grant of status quo without ascertaining the description and identification of the suit property would only invite a situation where both the rival parties would interpret the order of the Court to their advantage.
11) I have carefully gone through the plaint filed before the learned Munsiff, Shopian, wherein the respondents (plaintiffs in the suit) have prayed for permanent prohibitory injunction against the petitioner herein from causing interference with the passage of the respondents over the pathway measuring 3 marlas having width of 10 feet leading from one side of survey Nos.9, 10 and 12 of Village Gagran from Shopian Kulgam Road. The description given in the suit is clearly not adequate to identify the suit property. I am in agreement with learned counsel for the petitioner that such status quo orders passed by civil courts without being aware of the nature of controversy involved and without there being even proper description of the suit property, have the potential of encouraging the MOHAMMAD ALTAF BHAT 2020.11.26 15:50 I attest to the accuracy and integrity of this document 6 OWP No.1681/2011 parties to commit breach of peace. This exactly has happened in the instant case. Neither the learned Munsiff nor the Appellate Court even bothered to return a prima facie finding with regard to the existence or otherwise of the pathway nor was any effort made by the courts below to ascertain the actual position on spot before granting the order of status quo.
12) The grievance of the petitioner is that the respondents are interpreting the status quo in their own way and are carving out a passage by encroaching upon his land under the garb of order of status quo. Ordinarily interim orders passed during the course of suit are not amenable to be reviewed by this Court in exercise of its power of superintendence unless a strong case of total miscarriage of justice is made out. In the instant case, the manner in which the trial court as well as the appellate court have exercised the discretion of grant of status quo leaves much to be desired. Before grant of interim orders, in particular, in the nature of "status quo", the Civil Courts are under a duty to ensure that the suit property is properly described and is identifiable. The Court must record at least a prima facie finding with regard to the existing position of the suit property. It is only in these circumstances a Civil Court, with a view to preserve the suit property during the pendency of suit, may order or direct the parties to maintain status quo. Unfortunately this has not happened in the instant case and, therefore, this Court is constrained to invoke its power of superintendence to set aside the impugned orders. MOHAMMAD ALTAF BHAT 2020.11.26 15:50 I attest to the accuracy and integrity of this document 7 OWP No.1681/2011
13) Accordingly, this petition is accepted. The impugned order dated 07.08.2004, passed by learned Munsiff, Shopian, and order dated 27.04.2010, passed by learned Principal District Judge, Shopian, are set aside. The matter is remanded back to Munsiff, Shopian, who shall re- consider the issue of grant of interim directions in the light of observations made hereinabove and after affording opportunity to both sides. The trial court shall do well to exercise its discretion of appointing a Commissioner for spot inspection so as to properly identify the property and ascertain the existing position of the suit property. It is, however, clarified that the observations made hereinabove are only prima facie observations made with a view to dispose of the instant petition and the same shall not be binding on the trial court and the matter shall be decided by it purely on its own merits and without being influenced by any of the observations made hereinabove.
14) Copy of this order be sent to both the courts below.
15) Record be sent back.
(Sanjeev Kumar)
Judge
Srinagar
26.11.2020
"Bhat Altaf, PS,"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2020.11.26 15:50
I attest to the accuracy and
integrity of this document