Khazir Mohammad Mir vs Abdul Majid Dar

Dhiraj Singh Thakur, J

The present Civil First Misc. Appeal has been preferred against the order dated 21st June, 2021, passed by the court of learned Pr. District Judge,

Kulgam.

Briefly stated, the facts are as under:-

A civil suit for permanent prohibitory injunction came to be filed by the plaintiff against the defendant seeking an injunction from causing any sort of

interference with the peaceful possession over the suit land, measuring 1 Kanal 18 marlas, falling under survey No. 355 Min, situated at Khrewan

Chadeer Tehsil Qaimoo, Kulgam. With a view to show that the plaintiff was in possession of the said property, a Khasra Girdawari of the year 2020,

was also produced. Alongside the suit, an application under Order XXXIX Rule 1 CPC was filed seeking interim injunction against the defendants.

By virtue of order dated 31st July, 2021, the court directed the parties to maintain Status-quo on spot till next date of hearing.

Applications came to be filed in the aforementioned proceedings claiming violation of the order of status-quo. A detailed report was sought by the

court below from the SDPO Kulgam with regard to the violation of the order of status-quo. The SDPO in his report submitted that the cultivation of

the suit land was done by the defendant-respondent herein. An application was also filed by the defendant-respondent wherein permission was sought

from the court for harvesting the crops on the suit land and also to clarify the order of status-quo passed by the court below on 31st July, 2020.

The learned District Judge, Kulgam by virtue of order dated 21st June, 2021 modified the order of status-quo to the extent of permitting the

defendant-respondent to continue his agricultural pursuits in the suit land. The status-quo order was also directed to remain intact in so far as creating

third party interest over the suit property or making any construction on the suit land was concerned.

On a perusal of the order impugned, it can be seen that the learned District Judge, Kulgam, has satisfied himself with regard to the physical

possession of the defendant over the suit land on the basis of firstly the report of the SDPO and also the report of Revenue Officer dated 24.11.2020,

which has been placed on record by the appellant herein. The report (supra) by the Tehsildar suggest that the land measuring 1 Kanal 8 Marlas, falling

under survey No. 355 Min situated in estate Khrewan Chadeer is in the possession and personal cultivation of the applicant Abdul Majid Dar. It was

in these circumstances that the learned District Judge, dealt with the issue of the plaintiff not being in possession of the land in question and, therefore,

passed the order impugned, permitting the defendant-respondent to continue agricultural pursuits over the suit land.

I have gone through the order impugned and also heard learned counsel for the parties at length.

The scope of interference in such matters by the appellant court, while exercising powers of appeal under Order 43, is no longer res intergra. The

Apex Court in Wander Ltd. & Anr. V. Antox India P. Ltd, 1990 (Supp) SCC 727 held as under:

The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not

interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to

have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of

interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material

and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the

material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it

had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court

reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial

court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :

... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the

reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due

only to the application of well settled principles in an individual case.

The appellate judgment does not seem to defer to this principle.

This principal continues to be followed in subsequent decision, the latest being Mohd. Mehtab Khan & others v. Khushnuma Ibrahim Khan & Ors,

2013 (9) SCC 221.

Testing the facts of the present case on the touchstone of the principles of law (supra) it would be seen that there is no perversity in the order

impugned nor has the same been passed arbitrarily or capriciously. The court below rightly exercised its jurisdiction in passing the order impugned on

the basis of material which was present before it. The exercise of jurisdiction cannot be said to be perverse in law.

However, during course of arguments counsel for the defendant-respondent did concede that the defendant had possession of only 1 Kanal and 8

Marlas of land instead of 1 Kanal and 18 Marlas and that the 10 Marlas was in the possession of the plaintiff-appellant where the plaintiff had dumped

the construction material. It is, therefore, clarified that the order dated 21st June, 2021, would apply only in relation to the land measuring 1 Kanal 8

Marlas out of the land measuring 1 Kanal and 18 Marlas which forms the subject matter of the suit before the court below.

Disposed of accordingly.