Jammu & Kashmir High Court
Hans Raj vs Sandeep Kumar Lrs Of Lt. Som Dutt & on 27 March, 2023
S. No.1
HIGH COURT OF JAMMU AND KASHMIR & LADAKH
AT JAMMU
CM(M) No. 45/2021 (O&M)
Reserved on: 18.03.2023
Pronounced on: 27.03.2023
Hans Raj ...Petitioner(s)
Through :- Mr. Rakesh Chargotra, Adv.
v/s
Sandeep Kumar LRs of Lt. Som Dutt & .....Respondent (s)
ors.
Through :- Mrs. Meenakshi Salathia, Adv.
Coram: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
1. Petitioner has invoked writ jurisdiction of this Court, under Article 227 of the Constitution of India, for quashment of order dated 02.09.2021 passed by learned 2nd Additional District Judge, Jammu (Court below, for short), in File No. 44/Appeal titled 'Hans Raj v. Som Dutt and ors.', vide which, respondents have been allowed to put lintel upon the construction raised over the suit land.
2. Case of the petitioner is that he was owner in possession of land measuring 02 kanals 03 marlas bearing Khasra Nos. 176(old)/1492min (new) situate at village Kangrail Tehsil Jammu, now Bhalwal District Jammu, prior to the year 1971. He allowed predecessor-in-interest of respondents, namely, Tara Chand to use this land for a period of three years as a licensee, as land 2 CM(M) No. 45/2021 was adjacent to his house and he surrendered his possession, as licensee in 1993.
3. Allegation of the petitioner is that the land in question was encroached by the respondents on 12.03.2021 and they started raising construction over the same. According to the petitioner, later he came to know that predecessor- in-interest of the respondents, namely, Tara Chand got mutation of the said land attested in his favour, with the assistance of revenue officials, by fraud as said mutation contains thumb impressions of the petitioner, whereas the petitioner, being an educated retired government employee, used to put his signatures and never used thumb impression. The said mutation was assailed by the petitioner and was stayed by the appellate court by an order of status quo.
4. It is further case of the petitioner that after filing of the aforesaid appeal against mutation, he came to know that predecessor-in-interest of respondents, namely Tara Chand had also got a sale deed executed by fraud and impersonation. He filed a suit for declaration and injunction and learned 2nd Civil Subordinate Judge (Passenger Tax), Jammu (for short, trial Court) after initial order of status quo, passed an order dated 07.07.2021, in File No. 127/Misc, vide which, application filed by the petitioner under Order XXXIX Rules 1 and 2 of Code of Civil Procedure (CPC, for short) was dismissed and order of status quo was vacated.
5. Aggrieved of the aforesaid order dated 07.07.2021, the petitioner preferred a Civil Miscellaneous Appeal and learned Court below vide impugned order, though allowed the appeal filed by the petitioner and passed temporary injunction in his favour, but allowed the respondents to put lintel on the structure already raised by them over the suit land. 3 CM(M) No. 45/2021
6. Having heard the rival contentions, I have given my thoughtful consideration to the facts and circumstances attending the present case as also the law governing the field.
7. It is an admitted position of fact on the record that respondents/defendants, in the trial Court, are in possession of the suit land and they have raised a structure over the said land. The allegation of the petitioner is that respondents have encroached upon the suit land, got mutation attested in their favour fraudulently and with the assistance of the revenue officials and also got the sale deed executed by way of fraud and impersonation. The only grievance projected by the petitioner is that while learned Court below has allowed the appeal preferred by him and passed an order of temporary injunction in his favour, respondents have been allowed to put lintel over the structure, alleged to have been illegally raised by them over the suit land.
8. Petitioner has questioned the impugned order on the predominant premise that once learned court below has concluded that the petitioner/plaintiff succeeded in making out a prima facie case in his favour, the balance of convenience lies in his favour and that he would suffer loss and injury if injunction is denied to him, learned Court below has exceeded the jurisdiction by allowing the respondents/defendants to lay lintel over the structure raised by them, in the absence of any counter claim or an application for grant of injunction or an application for grant of permission to complete the construction.
9. This Court is of the opinion that learned Court below has passed the impugned order having due regard to the tripod test of prima facie case, 4 CM(M) No. 45/2021 balance of convenience and irreparable loss/injury in the event of denial of injunction. The impugned order having been passed in accordance with the principles of law does not call for any interference for the following reasons.
10. Petitioner/applicant claims to be owner in possession of the suit land. According to the petitioner, predecessor-in-interest of respondents/defendants was allowed to use the suit land as a licensee and he surrendered possession of the suit land as a licensee in the year 1993. It has been alleged by petitioner/plaintiff that the land in question was encroached by the respondents/defendants in 2021. It is further allegation of the petitioner/plaintiff that predecessor-in-interest of respondents, namely, Tara Chand fraudulently got mutation No. 608 attested in his favour and also got a sale deed executed in his favour by way of fraud and impersonation. All these assertions and allegations have been denied by the respondents/defendants in their written statement. Therefore, learned trial Court has rightly observed that there are triable issues arising out of the pleadings of the parties, which require adjudication by the trial court, as such, petitioner/plaintiff succeeded to make out a prima facie case in his favour.
11. It is an admitted case of the parties that respondents/defendants are in possession of the suit land and they have raised a structure upto lintel level. Therefore, learned Court below has balanced the comparative convenience of the parties by allowing the respondents to put only lintel over the structure already raised as respondents have dumped the building material for the said purpose and restraining the respondents/defendants from raising further construction beyond or over the structure and creating third party interest. It has also been observed by learned Court below that construction so raised 5 CM(M) No. 45/2021 shall be subject to the outcome of the suit. In my opinion, learned court below has passed the impugned order having due regard to the triple test discussed above and to the comparative convenience/inconvenience of the parties, which cannot be interfered with by this Court.
12. Having regard to what has been discussed above, the present petition, being devoid of merit, is dismissed along with connected CM(s) and the impugned order dated 02.09.2021 is upheld. Interim direction, if any, shall stand vacated.
(RAJESH SEKHRI) JUDGE JAMMU 27.03.2023 Paramjeet Whether the order is speaking? Yes Whether the order is reportable? No