Bhupinder Singh & Ors. vs Gajandhar Singh and Ors.

Revisionists are aggrieved of the order passed by Learned Addl. District Judge, Baramulla, upholding the order of Sub Judge, Pattan dated

18.08.2006, whereunder application for grant of temporary injunction as well as application for appointment of receiver have been rejected.

Sardar Gopal Singh, deceased has left behind the estate i.e. orchard covered by Khewat No. 95 including one half share of the Banglow situated

at Hartrath, Singhpora Pattan, Kashsmir. Mutation of succession bearing no. 31 has been attested on. 11.05.1972 in favour of his four sons

namely Gajandhar Singh, Bupinder Singh, Tapeshuer Singh and Tajinder Singh in four equal shares whereas widow and two daughters had not

chosen to take any share.

Revisionists contend that till 1995 96 fruits of the orchard were collected and sold by them but in the year 1996 they were threatened by the

J&K AlIkhwanulMuslemoon, a militant group, so were forced to leave the house and orchard, on return in the year 2006 came to know that

respondent no. 1 has manipulated some fraudulent decree so as to deny their rights visavis property/orchard (one half portion in the residential

house and orchards surrounding it measuring 58 kanals and 04 marlas) when they are the true owners of the same, so have finally sought the

following reliefs:

(i).......a decree for the declaration of the decreepassed by the defendant no.3 dated 05.07.1995 in favour of the defendant no. 1 as null and void.

(ii).......a decree of declaration in favour of the plaintiffs declaring them

as lawful owners in possession of one half portion of the residential house and orchard surrounding it more particularly described in Para 7 of the

suit/pliant.

(iii) ....... a decree directing the defendant no. 1 to handover vacant

peaceful possession thereof to the plaintiffs.

(iv).......a decree of permanent injunction restraining the defendant no.

1 from causing any interference in the possession and the title of the suit property/orchard belonging to the plaintiffs.

(v).....a decree for recovery of usufructs and profits of the suit property from the person and property of the defendant no. 1 received by him

during his illegal occupation of the suit property.

Respondent (defendant No. 1) in his pleading has taken the stand i.e., it is he who has been in possession of the orchard as well as the

residential house from 1971 as the revisionists (plaintiffs) had settled at Mumbai and Delhi prior to 1970 and are carrying on business activities

there. They have purchased their own residential house at the said places.

Further respondent has contended that he has been taking all care, has maintained the orchard and has incurred huge expenditure; otherwise it

would have been rendered as barren. The revisionists (plaintiffs) had received the consideration amount which fact is borne by the receipt issued

by them. Heard. Considered.

Grant or otherwise of temporary injunction is governed by the three celebratedprinciples coupled with rule of equity whereas appointment of

receiver is also discretionary and is governed by phraseology employed in Order 40 Rule 1 CPC i.e. when in the particular facts and

circumstances, it appears to be just and convenient, court can pass the order under Order 40 Rule 1 CPC. The word 'just and convenient' belongs

to the sole discretion of the court. Exercise thereof on sound judicial principles is dependant upon the particular facts and features of the case.

Learned trial court as well as appellate court, after noticing all the features and circumstances of the case in detail, have declined to exercise

discretion in favour of the revisionists. Exercise of discretionary power ordinarily is not to be interfered with by the revisional court unless any

perversity or illegality is noticed.

Learned counsel appearing for the revisionist has taken pains in highlighting the case and has tried to take benefit of various judgments which he

has referred i.e.

2004 (I) SLJ 303

1993 (2) SCC 507

AIR 2007 Utr 15

1980 SLJ 509

1984 SLJ 131

AIR 1979 J&K 53

AIR 1995 Mad 430

AIR 1976 J&K 30(33, 36)

AIR 1976 J&K 37

I have gone through the judgments. In the facts and circumstances of the case in hand the basic principles governing grant or otherwise of the

discretionary relief have been well taken note of. It is to be borne in mind that every case has its own facts and features so law has to be applied

accordingly.

In the instant case, it is admitted fact that the revisionists, on their own showing, have not been in possession of the suit property from the year

1996 till date i.e. they have been out of possession for last ten years as on the dace of institution of the suit that means it is the respondent no. 1

who has been in continuous possession and it is he who has been maintaining it, no action, whatsoever has been taken or initiated by the

revisionists which shows that they have not raised a little finger against the respondents which in turn shows there is no danger of waste. In case

respondents would not have taken proper care of the orchard (suit property) it would have been rendered barren and of no utility.

It is trite that a fraudulent decree is nullity has no value but in the instant case whether the decree is nullity or not is to be decided after trial is

concluded.

Any opinion at this stage will adversely affect the proceedings of the suit. The decree has been passed by the Tehsildar under Consolidation of

Holdings Act on 05.07.1995. In the proceedings initiated by the Tehsildar, statement of witnesses have been recorded receipt allegedly shown to

have been executed by and on behalf of the revisionists have been considered and finally proceedings have culminated in passing the order to the

effect that the land measuring 58 kanals and 04 marlas covered by Khasra No. 95 min of the revisionist have been settled in the name of the

respondent (defendant). This order/decree is under challenge in the main suit. The learned trial court as well as appellant court have also noticed

the said proceedings and have passed well reasoned order.

The contention of the learned counsel is that the respondent no. 1 is rank trespasser so his possession by no means is legal possession,

revisionists are title holders so for protecting their right, suit property is required to be put in the hands of the receiver, this contention at this stage,

prima facie, does not hold good in presence of the decree/order passed under Consolidation of Holding Act way back in the year 1995 until same

is not declared fraudulent. Further more when the respondents have been in possession of the suit property for more than a decade.

The contention of the learned counsel is that the process of Consolidation of Holding Act has been concluded prior to the passing of the

decree by the Tehsildar, village Singhpora, where the suit property is situated, was not covered by the consolidation proceedings, therefore, order

is without jurisdiction. This is the matter to be settled during trial.

The respondents admittedly cosharers are in possession to the exclusion of the others, if at all decree finally is proved to be nullity then the

partition and restoration of possession can follow.

Considering the instant case on the celebrated principles coupled with equity, grant of injective relief has rightly been declined.

Viewing the case in the backdrop of the particular facts and features, it shall not be just and convenient to put the property in the hands of the

receiver when the respondent no. 1 is holding the property continuously for last more than 10 years. Moreso, when for 10 years i.e. till the filing of

the suit no action whatsoever against the respondent no. 1 has been initiated by the revisionists. Neither waste or danger of dissipation is noticed.

Discretionary relief can solely be declined on account of slackness so has been rightly declined.

In the upshot, no illegality or perversity is noticed in the order impugned; both learned trial court as well as appellate court have exercised their

discretion reasonably. Hence interference declined revision petition being devoid of force is dismissed.

Copy of the order alongwith subordinate record be send down forthwith. Appearing counsel for the parties shall ensure presence of the parties

in person or through recognized agent or advocate before the trial court on 27.11.2008.