Ali Dar & Ors. vs Subhan Gani & Ors.

This revision is directed against an order dated 3061978 of the District Judge, Baramulla, allowing the appeal of the respondents against the

order of interim injunction passed in a suit for declaration and injunction by the Sub Judge Handwara, on 1141978.

To put in brief the facts of the case are: one Wazir Baij Nath who is recorded as one of the owners of the land along with his minor children and

his wife Smt Kanchan Devi executed a contract for sale of the land as mentioned in the agreement on 20121976 in favour of Subhan Ganai and

ors. This agreement did not culminate in the sale because of some dispute having arisen between the respondents and Baij Nath. After the

execution of this agreement, Baij Nath negotiated and settled another bargain with the petitioners on 411977 and executed a new document of

contract for sale in favour of Ali Dar and ors. The petitioners In that document he affirmed that the plaintiffs petititioners were in possession of the

land in question. This led to a dispute between the parties which culminated in proceedings under Section 145 Cr. P. C. The property was

attached on 28121976 by the Executive Magistrate, Handwara, and it remained with the Supardar till 1031978 when in the course of the

reference made to the High Court proceedings under Section 145 Cr P. C. were quashed. But no consequential order was made as regards the

subject of dispute as to whom it should revert and who should take possession of it. In the mean time counter suits for declaration and injunction

were instituted, first by the petitioners and then by the respondents in the court of the Sub Judge, Handwara, both sides claimed that they were in

possession of the suit property and requested the trial court to issue temporary injunction in their favour. The lower court on a consideration of the

matter accepted the prayer of the petitioners and issued temporary injunction against the defendants respondents i.e. the party of Subhan Gani and

ors The court, however, observed that this order of injunction would not cover 7 Kanals and 13 Marias of land which Wazir Baij Nath had sold to

some other persons and the plaintiffs petitioners were not in possession of the same. Aggrieved by the order, the respondents namely Subhan Gani

am ors filed an appeal before the District Judge, Baramulla, who set aside the order observing that the possession was a dispuied proposition and

that it could not be said with any amount of certainity as to which party was in possession of the suit property. Accordingly it was proper for the

trial court to have struck an issue on possession and then pass an order on the application for temporary injunction. The learned Judge accordingly

sent the case back to the trial court for disposal of the application afresh in the light of the observations made in the order of remand. It is against

the order of the District Judge that the present revision petition has been filed.

I have heard the elaborate arguments of the learned counsel for the parties.

Mr. Raina appearing for the petitioners has contended that the procedure adopted by the District Judge was not correct as it would have the

effect of protracting the disposal of the issue and would also make the application for injunction infractuous, espacially when it was crop season

and urgent orders were required to be passed in the case in order to protect the interests of the petitioners. He submitted that there was prima

facie evidence to show that the petitioners are and have been in possession of the suit property. He has referred to a number of documents on the

record as also the copy of the report/application dated 18.4.1978 of the police Handwara addressed to the Sub Judge, Handwara. According to

the learned counsel in the lace of the material extant on the record as also the admission made by the vendors in favour of the petitioners, it was

established that the petitionersplaintiffs, were in possession of the suit property and the plea of the respondentsdefendants was negatived by the

prima facie evidence on the record. The contract for sale in favour of the respondents on which they relied would not clothe the respondents with

any right in the disputed property muchless any right to the possession of the same. Section 138 of the T. P. Act operated against them. Criminal

proceedings instituted by the police under Section 447 R. P. C. in the year 1975 ended in favour of the petitioners as this demonstrated that the

possession was with the petitioners as early as in the year 1975. The petitioners had constructed sh ds thereon. The respondents defendants have

to go a long way in establishing their case of specific performance which is pending in the High Court. Adveiting to the ostensible claim of the

respondents, the learned counsel submitted that it would at the most extend to the share of Baij Nath one of the properietors who had executed the

agreement in favour of the respondents. The respondents could not extend their claim beyond that It is further submitted that the share of Shri Baij

Nath in the land is only 40 Kanals and 19 Marias out of which he has already sold 1 kanal and 9 Marias under Survey No 395 Min and 6 Kanals

and 4 Marias under Survev No 395/1 total (7 Kanals and 13 Marias) in favour of Abdulah Ganai. This Baij Nath could not alienate more than 33

kanals and 6 Marias in favour of the respondents. Therefore, there was no basis for the contention that Brij Nath had given possession of the entire

land to the respondents as he could not legally give possession of the remaining land belonging to other cosharers. Mr. Raina conceded that if she

court wanted to protect the rights of the respondents, it could do so by making an order on reasonable terms and the petitioners were prepared to

give security for that

Shri H. M. Sadiq, learned counsel for the respondents has enunciated the view that the property was in no body's possession at the t me when

the plaintiffspetitioners brought the present suit. It is submitted that the suit was instituted by the plaintiffspetitioners in January 1978 when the

property was already under attachment. It was attached on 28121976 and it continued to remain so upto 1031978. There was nothing on the

record to show that prior to the order of attachment the possession of the property had vested with the plaintiffspetitioners. In view of this it is

submitted that as the land was in medio, it would be presumed that the plaintiffs were out of possession and, therefore, they were not entitled to

interim injunction. The real position on the spot was that the parties scrambled for possession which on several occassions resulted w an

apprehension of breach of the peace on the spot. Police picked was installed to prevent the recurrence of breach of peace. It was, therefore,

appropriate to appoint a receiver. It is conceded that the respondents have no interest in one half of the land and the petitioners can take the fruits

of this one half of the land But for the remaining one half of the land a receiver be appointed who will take charge of the land till the issue of

possession h decided. Reliance is placed on a number of authorities which are to the effect that the injunction should not be granted where

possession is disputed and that in cases where breach of peace is apprehended, the court should appoint a receiver.

The principle is well established that in a case where the defendant does not admit the right of the plaintiff to be in possession and the material on

the record also does not given any positive indication as to which of the parties was in possession at the time when the interim injunction is sought

by the plaintiff or when the suit is brought, the proper course would be to get a clear finding as regards the actual possession in the party. An

injunction will not be issued to disturb status quo. What was status quo in respect of the property at the time of institution of the suit or at the time

when the injunction was sought, is difficult to decide here in view of the paucity of the material. It is true that there is an admission of the vendor in

favour of the petitionersplaintiffs and there is also a copy of the report/application of the police, Handwara, addressed to the Sub Judge,

Handwara, according to which it appears that on 1241978 the petitioners got the possession of the land. But the main question to be decided is as

to from whose custody the land was taken and attached and who came to occupy it after it was realeased from attachment. There is no document

to show either of this, as to from whose possession the property was attached and or to whom it was restored when criminal proceedings under

Section 145 Cr. P. C. were quashed It is not denied before me that the property remained under attachment for more than a year upto 1031 78.

The suit was instituted in January 1976. At that time the property was in custodia legis. In such a situation when the property was in medio at the

time of the institution of the suit and there is no material at present to determine the question of possession at the relevant time and there is scramble

for possession between the parties, the court is left with no choice but to appoint a receiver as that alone would only safeguard the rights and

interests of the parties.

The next question is as to for how much land should the receiver be appointed. As already observed respondentsdefendants do not lay their

claim to one half of the property. In my opinion receiver can be appointed only with respect to the share of Baij Nath in the landed property for

which he could contract the agreement for sale. Thus Baij Nath's share as a proprietor in the land is only 40 Kanals and odd marlas which he could

legitimately dispose of. The contract for sale in favour of the respondent is only by Baij Nath and not by other proprietors Out of 46 Kanals and

19 Marias, share of Baij Nath have been sold 7 Kanals and 13 Marias in favour of Abdullah Ganai. The remainder is 33 Kanals and 6 Marias,

Therefore, in order to preserve the property and with a view to protect the rights and interests of the respondents and without prejudice to the

rights of the parties and without expressing any opinion on the merits in the main suits but only for the limited purpose of the decision of (his. case, it

is ordered that the land measuring 33 Kanals and 6 Marlas will vest in the receiver to be appointed In respect of the remaining portion of land

other than 33 Kanals and 6 marlas, the order of interim injunction is made absolute, it is further ordered that the Tehsildar Handwara will act as

receiver for 33 Kanals and 6 Marias of land Hs will secure the assistance of the Horticulture Assistant and will collect the fruits from these portions

of land, store them and dispose them of by sale. One representative of each side will be with him, After defraying the expenses to be incurred

thereon, the sale proceeds will be deposited in the trial court and will be disbursed to the party who ultimately is found to be inpossession or

deemed to have been in possession of this portion of the land Meanwhile the Sub Judge, Handwara. will record a finding on the question of

possession of these 33 Kanals and 6 Marias of land after allowing the parties an opportunity to produce their respective evidence in this behalf.

The revision petition is accordingly disposed of.