Jammu & Kashmir High Court
Sudesh Devi vs Jagdev Singh And Others on 10 March, 2022
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 07.03.2022
Pronounced on : 10.03 .2022
OW 104 34/2014
IA Nos. 45/2014 & 1/2016
Sudesh Devi ....Petitioner(s)
Through: - Mr. Amarvir Manhas, Advocate
v/s
Jagdev Singh and others .... Respondent(s)
Through:- Mr. Rakesh Badyal, Advocate
Coram: HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
ORDER
1. The instant petition under Article 227 of the Constitution of India, has been filed against the order dated 05.02.2014 (for brevity 'impugned order') passed by the learned Principal District Judge, Samba Jammu (for brevity 'Appellate court'), in File No. 252/Civil titled Sudesh Devi vs. Jagdev Singh and others, whereby Appellate court has confirmed the order of Learned Additional Munsiff, Samba ( for brevity 'Trial court') dated 01.07.2013, by which an injunctive direction issued in favour of the petitioner stands withdrawn qua Khasra No. 226 min qua revenue Village Langath, District Samba.
2. The brief facts of the case are that the petitioner-plaintiff filed a suit for declaration that she has become owner in possession of the land in the share of her mother-in-law, namely, Malan Devi i.e., 07 kanals by way of will deed executed by her, one of the co-sharer in the suit property, with the further 2 OW 104 34 of 2014 declaration that the sale deeds executed by defendant-respondent No. 1 in favour of respondent No. 2 registered on 10.11.2008 and 06.12.2009 regarding land measuring land (04 kanals) & land measuring ( 2 kanal 17 marlas) and another sale deed executed by defendant-respondent No. 1 No. 1 in favour of respondent No. 3 registered with Sub-Registrar, Samba dated 04.11.2008 with respect to land measuring 04 kanals of Khasra No. 266 min khewat No. 15 Khatta No. 50 min situated at Village Langath, Tehsil and District Samba be declared as null and void, inoperative and not binding upon the plaintiff/petitioner and proforma defendants/respondents, as the same was claimed to have been executed by an incompetent person. It was alleged that the the plaintiff-petitioner has stepped into the shoes of her mother-in-law late Smt. Malan w/o Attar Singh who was the owner of a landed estate including survey No. 266 measuring 11 Kanals and 04 Marlas at Village, Langth, Tehsil and District, Samba along with respondent No. 1-Jagdev Singh and proforma respondent Nos. 4 to 8. Out of the said land 07 marlas was acquired by the Department of Irrigation in the year 1974-75 and 10 kanals and 17 marlas of the land was left available to Mst. Malan and others. The petitioner claims to have succeeded to the interest of Mst. Malan by virtue of a Will dated 26.05.2008, duly registered with Sub-Registrar, Samba. The land in question is claimed to be agricultural in nature being irrigated and recorded as Mera Awal.
3. Along with the aforesaid suit an application for grant of ad- interim relief under Order 39 Rules 1 and 2 read with Section 151 CPC was also filed to the effect that respondents/defendants be restrained from interfering in any manner, changing the nature of the suit land, forcibly 3 OW 104 34 of 2014 occupying dispossessing the plaintiff/petitioner raising any type of construction, alienating the suit land till the disposal of the main suit.
4. The defendants/respondents opposed the suit of plaintiff by filing the written statement, wherein it was alleged that the will deed executed in favour of plaintiff is challenged by defendant No. 1 in a case titled Jagdev Singh vs. Sudesh Devi and another which is pending in the Court of learned Munsiff, Samba. It was averred that the matter in issue is directly and substantially same in the said suit wherein the plaintiff and defendant No. 1 are litigating for their respective claim, as such, the suit is not maintainable. It was further stated in the written statement that petitioner -plaintiff has not placed on record any mutation or document with the plaint and even otherwise also mutation creates no title in the property as mutation is a fiscal entry which relates only to the extent of payment of land revenue, as such, it does not create any title unless the same is provided. Further that the land which devolved upon the Attar Singh (husband of Malan Devi) and thereafter to his sons and daughters has been partitioned since more than 20 years back and every individual is cultivating his respective share fallen to his share. The defendant No. 1 has transferred the land in his share to defendants 2 and 3 by virtue of registered sale deed who are in possession of the same and the construction so raised in the land is in the knowledge of plaintiff.
5. It is contended by learned counsel for the petitioner that respondent No. 1 had only a limited share in the above survey number, however, with the connivance of the revenue officials, he has sold 10 kanals and 17 marlas out of the said survey numbers through three different sale deeds to respondent No. 2 and 3.
4 OW 104 34 of 2014
6. It is further contended that the respondent No. 1 had only 1/7th of the share in Khasra No. 266, whereas he has sold the entire number to the extent of 10 kanals and 17 marlas to the respondent Nos. 2 and 3 and that the courts below have not appreciated the factual and legal position in its right prospective.
7. The learned trial Court after perusing the material on records came to the conclusion that the plaintiff/petitioner has failed to make out a case for interim relief. It was further observed that as the plaintiff herself has alleged that the suit property is undivided property of all the co-owners, and that prima facie record tends to show that defendants 2 and 3 are in possession of land purchased by them, therefore, filling a suit for declaration without seeking possession is not maintainable, as the proper remedy for the plaintiff/petitioner was to seek partition before a proper forum. Interim order dated 08.01.2011 was vacated and vide order dated 01.07.2013, application was dismissed by observing as under:-
" In the back drop of observations made above the plaintiff has failed to make out a case for interim relief. Since defendant no. 2 and 3 are prima facie in possession of land purchased by them as such if interim injunction is not vacated, they shall suffer irreparable loss and injury which cannot be compensated in terms of damages. Balance of convenience also tilts towards the defendants. Therefore, the application in hand is dismissed whereby interim order dated 08.01.2011 is vacated. However, the defendants no. 2 and 3 shall file an undertaking in this court that if the plaintiff succeed at trial, the defendants shall demolish all the constructions raised by them on their own costs and expenses. The observation made above shall have no bearing on the outcome of main suit which shall 5 OW 104 34 of 2014 be decided on its own merits. Application is disposed of accordingly."
8. Aggrieved by the order passed by the learned trial Court, the petitioner preferred an appeal before the Appellate Court who endorsed the findings of the learned trial Court and dismissed the appeal with the following observations:-
"........In other words I mean to say that status quo order as to the possession can only be passed in a situated where the court is not in a position to prima facie hold as to which of the parties to the suit is in possession of the property in dispute. Though the material on record discloses that the appellant- plaintiff has a prima facie case in her favour, but the balance of convenience in my view does not lie in her favour. Further more as stated earlier that the development made on the joint property is a development for the benefit of all the co-sharers, as such, allowing the respondents-defendants No. 2 and 3 to raise construction over the suit property would not cause irreparable loss to the appellant-plaintiff. In view of above, in my view it is not appropriate to interfere with the impugned order passed by the learned trial court. Appeal stands disposed of accordingly. Nothing said in this order shall be read as an expression of opinion on the merits of the case. No order as to costs. The trial court's record along with a copy of this order be sent back forthwith. The parties through their counsel are directed to cause their appearance before the trial court on 12.02.2014. The appeal file be consigned to records after its due completion."
9. It is against these orders that the present petition has been filed before this Court on the ground that the courts below fell in serious error in ignoring the record by virtue of which it is manifestly clear that the land in 6 OW 104 34 of 2014 question is agricultural in nature and no sale deed beyond 2 kanals could have been registered by the Sub-Registrar. It is contended that the courts below have failed to address the question raised by the petitioner that the sale deeds executed by the respondent No. 1 in favour of respondents 2 and 3 are in utter violation of the Agrarian Reforms Act.
10. The stand taken by the respondent Nos. 2 and 3 in their objections is that the instant petition filed under Article 227 read with Section 104 of the Constitution of J&K is not maintainable as no independent jurisdiction is vested through these provisions to look into the orders which have been passed by the civil courts as per the amended provisions of Code of Civil Procedure. It is further averred that the land in question is situated within the municipal limits and is not used for agriculture purposes. In the objections it is further averred that the revenue record has clearly established the ownership of the respondent No. 1 who has sold the land to them in consonance with the provisions of law.
11. Heard learned counsel for the parties and perused the material on record.
12. Record would make it clear that the Trial Court, while considering and rejecting the application for grant of ad-interim relief, had taken into account all related material facts and after having gone through the material on record came to the conclusion that plaintiff had failed to establish a case for grant of ad-interim relief. The order so passed is well reasoned and does not call for any interference.
13. The Appellate court while dismissing the appeal of the petitioner opined that her claim that land bearing khasra No. 266 measuring 10 kanals 17 7 OW 104 34 of 2014 marlas which has been sold by defendant/respondent No. 1 to the defendants 2 and 3 by virtue of three sale deeds was under her possession is not supported by any revenue record. It was observed that perusal of the revenue extract i.e., copy of Khasra Girdawari for the year 2013 reveal that the said khasra No. 226 measuring 10 kanals 17 marlas is under the physical possession of the respondents-defendants 2 and 3.
14. Power under Article 227 can be exercised only in cases occasioning grave injustice or failure of justice such as when:
i. The court or tribunal has assumed a jurisdiction which it does not have;
ii. The court or tribunal has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and iii. The jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
15. A perusal of the order passed by the learned trial Court as also the appellate Court tends to show that both the Courts below have taken into consideration not only the pleadings, but also the law on the subject and thereafter rejected the plea of the plaintiff-petitioner. This Court while exercising powers under Article 227 of the Constitution of India will not normally interfere with the discretion of the Courts below and substitute its own discretion except where the discretion has been shown to have been exercised by the Courts below in an arbitrary, capricious or in a perverse manner or where the Court had ignored the settled principles of law regulating grant or refusal of the interlocutory injunction. This Court will also not re- assess the material and seek to reach a conclusion different from the one reached by the Courts below, if the one reached by the Courts below was 8 OW 104 34 of 2014 reasonably possible on the material placed before it. Further, this Court would not normally be justified in interfering with the exercise of discretion solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. If the discretion has been exercised by the learned Courts below reasonably and in a judicious manner, then this Court would not take a different view and interfere with the discretion exercised by the Courts below.
16. The party approaching the court with a suit, appeal or any other proceeding does not automatically get clothed with a right to necessarily get a relief in its favour, but there are certain parameters envisaged by law that are to be satisfied before any such direction is passed. It cannot be granted on mere asking of the party. The satisfaction of the court vis-a-vis prima facie case having been made out is of utmost importance and cannot just be brushed aside.
17. After having carefully examined the orders under challenge and in view of the well-settled legal position, discussed above, I do not find any illegality committed either by the Trial court or the Appellate court in passing the impugned orders.
18. In view of the above, I do not see any case having been made out by the petitioner, therefore, this petition shall stand dismissed. Interim direction, if any, shall stand vacated.
(Vinod Chatterji Koul) Judge Jammu 10.03.2021 Bir Whether the order is reportable: Yes/No. 9 OW 104 34 of 2014