Lasu Sheikh and Others vs Ramzan Parray

Syed Bashir-Ud-Din, J.—Revision petitioners 1 to 3 have filed suit for declaration and injunction to challenge sale deeds executed on

4.4.1970 and 4.8.1970 as devoid of any legal force and to restrain Ramzan Parray defendant to the suit (respondent to the revision petition) to

interfere with the possession of the land subject of matter of suit. The property belongs to one Ali Sheikh who died issueless and the plaintiff and

proforma defendants (revision petitioners) claim to have succeeded to the entire matrooka estate of said Ali Sheikh legal heirs. The sale deed

purportedly executed by said Ali Sheikh in favour of the defendant/respondent as above is prayed to be declared (on pleaded grounds) as null and

void, and devoid of any legal force. Respondent/ defendant has contested the suit as well as the revision petition. He claims to be the lawful owner

of the property after the two sale deeds were executed by said Ali Sheikh in his favour. He has also pleaded that he is in possession of the subject

of the sale and the lis.

An application for temporary injunction was moved before the trial court of Munsiff Sumbal Sonawari. The trial court has after hearing parties,

on application of legal parameters of prima facie case, balance of convenience and irreparable loss on coming to the conclusion that the plaintiff has

no case for injunction, dismissed the application. Even so, the defendant contesting respondent has been bound by an undertaking that he is not to

alienate to suit property during the pendency of the suit. The petitioners challenged the order in Appeal. The Principal District and Sessions Judge

Baramulla after hearing the parties on perusal of record on consideration upheld the order of the Munsiff and recorded finding that the conclusion

drawn by the Munsiff are supportable on record and, therefore, dismissed the appeal. These orders dated 7.6.2003 and 20.10.2003 are

challenged in this petition.

The counsel submits that the impugned orders are not based on facts and are erroneous in law, though good grounds were raised to assail the

order. The District Judge has not bestowed the attention to focus on the issue of injunction. The counsel submits that the Munsiff in his order has at

page 4 observed that the respondent is out of possession, however, this aspect of the matter has been taken care of by District Judge in the order.

It is dealt with and the District Judge has recorded a lucid finding. Read in the context and totality of facts, trial Munsiff has slipped to write that the

defendant is out of possession, when the fact is that for all intents and purposes he has come up with the finding that the possession is not with the

plaintiff. This conclusion of the two courts is based on revenue records, recital in the documents for sale, mutation proceedings and other available

record. The concurrent findings of courts for purpose of interim injunction and applicable legal principals to facts of this case, not shown vitiated or

to suffer from any error. Nothing appears on record to show that the impugned order legally or suffers from any jurisdictional error. No case of

failure of justice or jurisdictional impropriety is pointed out. It is not in dispute that both trial and appellate courts have passed the impugned orders

within Jurisdiction. In such a case revisional powers are not available to take on factual and legal conditions.

In D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, the Supreme Court, while dealing with

exercise of revisional jurisdiction by High Court u/s 115 of CPC observed:-

.......The mass of reported cases only serve to show that the High Courts do not always appreciate the limits of their Jurisdiction under this

section. The legal position was authoritatively laid down by the Privy Council as far back as 1984 in Raja Amir Hassan Khan v. Sheo Baksh Singh

(1883) Ind. App 237 (PC), The Privy Council again pointed out in Balakrishana Udayar v. Vasudeva Ayyar, 44 Ind. App 261 : AIR 1917 PC 71

that this section is not directed against the conclusions of law or fact in which the question of Jurisdiction is not involved. This view was approved

by this Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, and has since been reaffirmed in numerous decisions.

The revision petition is not merited and is dismissed with the observation that pendent lit, subject of the suit shall be preserved and no steps (may

be by way of sale or otherwise), as directed by trial court, be taken to deprive the party of the benefit who may ultimately succeed in the Suit.