Bashir Ahmad and Another vs State of J&K and others

The case of the petitioners is that, a civil suit has been instituted by them before the trial court and in the said suit an application for temporary

injunction was dismissed on 7.5.2005; against said order an appeal was filed before Additional District Court, Baramulla which stood dismissed by

the said court on 10.5.2008. The petitioners thereafter filed a revision petition before this Court and the same was disposed of by this court on

31.10.2011 as not maintainable.

The present writ petition has been filed under articles 226/227 of constitution of India read with section 103/104 of Constitution of Jammu and

Kashmir for setting aside both the order of courts below. It has been averred that orders passed by the trail court and the appellate court are

against facts and law. The trial court while dismissing the order of interim relief has said, ""When the question of strong prima facie case does not

arise the direct ancillary of which that is balance of convenience, irreparable loss and under conditions are of least importance"". The trail court has

thus found the plaintiff has failed also to satisfy the requirement of balance of convenience and irreparable loss in their favor, the said observation

by the appellate court is dived of any consideration and is against law, when tribal issues are involved. The Contestant Ghulam Hassan Rather has

passed away in March, 2011 and application of brining his legal heirs had already been submitted before this court in civil revision no. 114 of 2008

which stood to be decided by his court. It is pertinent to mention here that the legal heirs of the Late Ghulam Hassan Rather namely Mohammad

Ramzan and others, who have under the garb of the vacation of the interim orders passed by the courts below hasstarted interference which has

encouraged them to take law into their own hand and this court being seized of the matter can check the same in the interest of justice. The orders

passed by the trial and appellate courts have allowed the contesting non-petitioners to occupy the suit land forcibly and give a license to change

and alienate the same which is unjust in the circumstances of the controversy between the parties of the suit.

I have considered the arguments and law on the subject. Petitioner/ Bashir Ahmed filed a suit for declaration, possession and injunction, with

regard to the subject matter land measuring 5 kanals and 13 marlas comprising of khasra no.1403 ( 1 k 1m )and 1400 4k 12m) situated at

Rashipora Authora . The sole ground has been taken is that the plaintiff is in possession of land under kh.no 1400 which is in occupation of Vet

nary and medical department. That he and Performa defendant are in joint possession of land; that land was joint land and without effecting

partition same cannot be sold; but defendants claim that their father had purchased the same from co-sharer; that property in question was joint

and undivided between legal heirs on Late Sultan and continued to be un-partitioned .

Along with suit an application for interim injunction was filed. At the filing of suit court of first instance granted order of status quo.

Non applicants /defendants appeared and filed written statement with averments that land under dispute has been purchased by their father from

predecessor of plaintiff (daughters of Sultan Ganie) in 1961by virtue of registered sale deed. The land has also been mutated in their favor by

Tehsildar vide mutation no.72.

Trail court on 7.5.2005 dismissed the application for grant of interim injunction. The concluding para of order reads as under:-

I have given patient hearing to both the counsels and I have gone through the plaint, documents relied upon by the plaintiffs and also the written

statement and documents relied on by the defendants. Needless to reiterate, since the immemorial the Hon''ble High Courts in Judicial History have

evolved three principles for granting or refusing the injunction in a particular case, the first principle is a strong prima facie case, second balance of

convenience and irreparable loss and the principles of equity and good conscience. This court has by force of sec. 53 of Specific Relief Act, has to

jump upon the civil procedure Code wherein the substantive section of 94 has granted the court the power to grant injunction if prescribed under

rule. So, far the purpose of understanding the term, ""prescribed"" the court has to go to definition clauses of section 2 CPC which lays down the

prescribed"" means as prescribed under rules. Now what are these rules, they are procedure of Rule 1 & 2 of Order 39 CPC. Now keeping in

view these rules i.e these two rules and the golden principles, I am of the considered view the applicants have a long way to go to prove their

averments during trial. The cause of action of the applicants/plaintiffs is contentious and needs much deeper probe for which tools are yet to be

provided by the applicants/plaintiffs in the shape of evidence. No clinching documentary material evidence has been placed on record which would

prima facie entitle applicants to any legal character or to any right as to the suit property. So, in this view of the matter, question of strong prima

facie case does not arise. When the question of strong prima facie case does not arise the direct corollary of which is that the balance of

convenience, irreparable loss and other conditions are of least importance, what applicant has prayed in the application that has been guarded

since time immemorial by legislature/legislature by enshrining sec. 52 of transfer of property Act, so what sort of irreparable loss would be caused

to be applicants. Let the plaintiffs and defendants have a chance to try their metal in the battlefield of legal trial. Hence let this application have a

way towards its above discussed fate without missing the words of dismissal as no clear and satisfactory grounds have been established for issuing

temporary injunction as prayed for in the application. Let the application form part of the suit file.

Sd/

Munsiff Baramulla

Dated:- 7/5/2005

Petitioner/ plaintiff filed an appeal against this order before Additional District judge Baramulla, who too dismissed the same on 10.5.2008. The

concluding para reads as under:-

The contesting defendants placed on the record enough material to show that if the plaintiffs have lost their title over the suit property has now no

right, title or interest in it. Prima facie the contesting defendants and the said Mst. Saleema are in possession of the suit property as owners thereof

as the suit property has been purchased by their predecessors in interest from the predecessors in interest of the plaintiffs and proforma

defendants. The trial court while appreciating the material on record namely the sale deeds, mutation order and the revenue papers has come to the

conclusion that the plaintiffs have failed to prove a prima facie case in their favour. The trial court has thoroughly and systematically considered the

evidence on record, to record this satisfaction regarding the failure of the plaintiffs to prove a prima facie case in their favour. The fact that

predecessors in interest of the plaintiffs and proforma defendants have sold the suit property to predecessors in interest of the contesting

defendants and the said Mst. Saleema and plaintiffs have now lost title over it the trial court has found that plaintiffs have failed also to satisfy the

requirement of balance of convenience and irreparable loss in their favour. The trial court has followed the principles governing exercise of the

discretion conferred by the provisions of Rules 1 and 2 of Order 39 CPC. The findings of the trial court are based on the material placed on the

record and are not in any way suffering from perversity. Accordingly order impugned in this appeal is confirmed and this appeal is dismissed with

costs. The trial court record be returned back along with the copy of this order. The parties are directed to appear in the trial court on 19.05.2008

and this appeal file be consigned to record after its due completion.

Dated:- 10. 5.2008

sd/

Additional District, Judge Baramulla

Petitioner has filed present petition by taking recourse of Article 226/ 227 of constitution of India read with section 103/104 of state

constitution, for quashing the orders. The writ of certiorari under Article 226 of the Constitution so far pertaining to quashment of orders of

subordinate courts is concerned, it can be issued for correcting errors of jurisdiction; it can be issued when the Court or Tribunal acts illegally in the

exercise of its undoubted jurisdiction or violates the principles of natural justice; this writ of certiorari acts in exercise of a supervisory and not

appellate jurisdiction. Generally this court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. An

error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the

proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. Mere errors in appreciation of documentary evidence

or affidavits, errors in drawing inferences or omission to draw inference, cannot be corrected under this provision.

Supervisory jurisdiction under Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and

tribunals throughout the territories in relation to which it exercises jurisdiction. There is quite difference between a writ of certiorari under Article

226 and supervisory jurisdiction under article 227. The difference between Articles 226 and 227 of the Constitution is that proceedings under

Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but

only supervisory.

Now coming to present case, petitioner has challenged the orders on the factual grounds; which this court cannot appreciate in this petition.

Except bald aversion in plaint that plaintiffs are in possession of land in dispute, there is nothing on record. Respondents/defendants have based

their defense with regard to claim on land on the basis of sale deed duly executed in 1961 in favor of their father; which facts has not been denied.

Sale deed is legal document from which court can draws inference at initial stages with regard to title and possession of subject matter in dispute.

There is thus no error apparent on the face of both the orders; bare perusal of orders of the courts below , it is evident that Courts have not

exceeded these jurisdiction while deciding the matter; the well-known principles for grant or refusal of temporary injunction under order 39 rules 1

and 2 C.P.C , have been taken note by courts below.

In view of above, I do not find any infirmity of law in the orders of courts below. This petition is dismissed.