Administrator S.M.C and Others vs Zamindaran Village Lasjan

Zamindaran village Lasjan through named respondents have filed suit for declaration and parmanant injunction in the court of District Judge

Budgam against the revision petitioners, the office bearers of Srinagar Muncipality, on the pleaded averment that the villagers of Lasjan have

purchased land measuring 912.4 kanals with standing trees under survey Nos. 1080, 1125, 1421 and 1088 situated at Village Lasjan vide sale

deed dt. 22.1.1970 registered on 10th of April 1970 with inter se shares specified in this deed. The land is in possession of the plaintiffs who have

been usurping benefits as users in possessioncumtitle hoders of the land. Adjacent to this land, another chunk of land measuring 231.15 kanals

under Survey No. 1088 is as well in possession and cultivation of the villagers of Lasjan who are appropriating the usfruct of the land. The Srinagar

Muncipality is raising claim to part of the land is threatening the villagers with dispossession and is interfering with the plaintiff's possession. The

plaintiffs have sought declaration of their title to land. On an application for injunction the/ trial court of District Judge Budgam granted an adinterim

injunction on 16.2.95 to plaintiffs/petitioners and restrained the defendant's office bearers of Municipality from interfering with and depriving the

plaintiffs of enjoyment of the possession and use of the land and trees standing thereon. Plaintiffs moved another application before District Judge

Budgam seeking implementation of this court direction with assistance of police. The District Judge allowed the application on 14.12.1996,

pending objections from otherside with direction to Sub divisional Police Officer (SDPO)/ Station House Officer (SHO) to ensure compliance of

the court order dt.16.2.95 referred above. It is this order of Ld. District Judge Budgam which is under challenge. In this order of 14.12.1996

impugned on the ground that the Municipality is in the possession of land measuring 409.4 Marias under various Khasra Nos. at Lasjan after the

land stodd mutated in the name of the department. The land is in possession of Srinagar Municipality. Though, the plaintiff have filed suit in

representative capacity, yet the provisions of CPC Order 1 rule 8 have not been complied with. The plaintiffs have not given details of the land.

The specifications and other required details qua demarcation of the suit land not been given. The survey numbers referred in the plaint cover much

more land than given in the plaint. The land to which restraint order applies is not at all identifiable and earmarked aparticle That the order of

interim injunction restraining the petitioners is passed at the back of the defendants, despite the fact that the defendants were not properly served.

As the suit property was not adequately specified and identified by plaintiffs, therefore, the interim injunction dt. 17.2.95 was not capable of

implementation and that too in absence of actual spot demarcation. In order to over come this difficulty, the respondents filed an application on

21.08.96 seeking direction to Tehsildar Chadoora for demarcation of the land. The revision petitioners respondents are yet to file objections

therein. The Trail court of District Judge Budgam without waiting for demarcation of the land, issued a direction to S.D.P.O/SHO Police station

Sadder for implementation of order dt. 16296. This direction was issued on 14.12.1996. The direction suffers from improper exercise of

jurisdiction. Without waiting for the revenue authority to demarcate the partie's land separately, the direction of the District Judge Budgam to the

police to render aid and assistance for implementing the order has caused miscarriage of justice for the appellent have been deprived of planting,

thereby causing loss and injury to the Muncipality. The impuged order is in violation of mandatory provisions of law. The S.D.PO/ S.H.O. police

station sadder has been arrayed as nonapplicant though, not a party to the proceedings. Infact the order has not been passed in accordance with

provisions of law and suffers from grave error and is vitiated by infirmity apparent on record. It has resulted in miscarriage of justice. The order

suffers from lack of jurisdiction. Record of the trial court is available.

I have heard the parties, examined the record and considered the matter.

Admittedly, the suit is filed in the name of Zamindaran Village Lasjan through the named five persons against Administrator, Secretary and

Estate Officer of Srinagar Municipality. On examination of the plaint, it is found that the suit is in representative capacity and the persons who have

filed the suit are under a legal duty to file the suit with permission of court, on behalf of and for the benefit of all villagers interested. Neither any

permission nor a direction under 01 R8 of CPC is on record. In absence of compliance with provisions of 01 R8 CPC,, the suit is itself not

competent. However, the counsel for the defendant is free to raise the ground and plea before the trail, court and the trail court after notice to

otherside shall decide the matter in accordance with provisions of law.

Perusal of order of 16296, on its face, reveals that the trail court has not applied its mind and brought to bear his judicial dispensation on the

facts and circumstances of the case. The adinterim relief as prayed for has been granted only for the reason that the respondents have not filed

objections. Even if, revision petitioners had failed to file objections, the trail court was under a legal duty to consider the case of the petitioner on its

own merits. The trail court has not at all taken into reckoning, the primafacie case, balance of convenience and irreparable loss. The case has not

been judged on the touchstone of these guide lines. Even the trial court has failed to record a finding as to the prima facie case, the sinequanon for

adtermin injunction/order in favour of the revision petitioners /plaintiffs. Equally the trail court has not at all placed on record that he considered

prima facie case with either of two other conditions applying to this case. In fact, it is found, that the trail court has exercised its discretion and

jurisdiction capriciously, arbitrarily and not in the sprit of the statute. The order appears to have been

passed incontravention of rules of fairness and justice.

This order of 16295, which is wholly unjust, illegal and an instance of material irregular exercises of jurisdiction, is infact being directed to be

implemented by the SDPO/SHO Police Station Sadder. Though, the law is settled that police assistance can be permitted to implement an interim

order. But when the order to be implemented is itself illegal and invalid, no such assistance is permissible. In this case, as the order itself has been

illegal, therefore, implementation of the order by issuance of direction vide order dt. 141296, is wholly beyond pale of law and amounts to an error

of jurisdiction resulting in, injustice and perpetration of an act/order not covered by provisions of law. Additionally this order, on the face of it,

appears to have passed in hot haste and even without waiting for an objection of the defendants. Though the defendants are given the copy and

asked to file the objections, yet the court in the same breath has rushed to pass on the direction to SHO P/S Sadder to implement the order. This

smacks of unfair and unjust disposal of the matter.

For the aforesaid reasons, the impugned order is set aside with direction to the Id. District Judge Budgam to pass fresh orders after affording

parties effective opportunity to put their case before the trail court.

Mr. Haqani, counsel for the revision petitioners, prays for transfer of the case to any court at Srinagar. Mr. Haqani was directed to move a

motion there to within a specfied time, which he has not done.

On consideration of this aspect of the case, in absence of proper motion, the case cannot be transfered to any other court. Besides during the

pendency of revision Presiding Officer of the court has also changed. Therefore, this prayer is turned down in the totality of the facts and

circumstances of the case.

Certify decision of this court to court below of District Judge at Budgam. The parties are directed to appear before the trail court at Budgam on

1561998. The registry shall transmit record in advance to above date.