Dismissed

Noor Ali v. Bashir Ahmed and Others

J&K HC2 Dec 2021CM(M)/56/2021

Case brief

AI extract

What is this about?

The High Court of Jammu & Kashmir dismissed a writ petition filed under Article 227 seeking to quash an order denying interim relief in a property partition suit. The court held that mere raising of construction by a co-sharer does not necessarily amount to ouster of another co-sharer and found no merit in interfering with the lower courts' order.

What did the court decide?

Writ petition and connected CM applications were dismissed with no reason to interfere in the orders of the courts below.

Noor Ali Vs Bashir Ahmed and Others — Partition | J&K HC (2021)

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Sr. No.74

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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Pronounced on: 02.12.2021

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CM (M) No. 56/2021 CM No. 8699/2021 CAV No. 2094/2021

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Noor Ali

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….. Petitioner(s)

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Through: Mr. Faheem Showkat Butt, Advocate.

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Bashir Ahmed and others

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.…. Respondent(s)

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Through: Mr. G. S.Thakur, Advocate.

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Coram: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE

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JUDGMENT

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The petitioner through the medium of present petition filed under Article 227 of the Constitution of India seeks issuance of writ of certiorari for quashment of order dated 28.10.2021, passed by the court of learned Additional District Judge, Jammu. The said court denied the interim relief to the petitioner in the suit.

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The case of the petitioner in the suit is that he along with the defendants is co-sharers in the land measuring 05 kanal05 marlas in khasra no.2319 and 01 kanal 14 marlas falling in khasra no.2320 situate at Kote tehsil Bhalwal, Jammu and has not been partitioned till date. The parties have been in the peaceful possession of the suit property and being held by the parties to the suit together as co-sharers equally. The plaintiff and the defendants in the suit are real brothers. The defendants after the death of the father of the parties intended to start construction on the suit property

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CM (M) No. 56/2021

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which compelled the plaintiff to approach the SDM, Jammu (North) with a complaint and the Tehsildar stopped the construction that was being raised by the defendants. The plaintiff approached the Tehsildar for implementation of order but no action has been taken by the Tehsildar when approached. As the defendants continued with the construction, the same has given cause of action to the plaintiff to file the present suit. The prayer in the suit is for restraining the defendants from dispossessing the plaintiff or interfering into his peaceful possession of the suit property to the extent of his share or transfer the property by any mode.

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The written statement is filed by the defendants wherein it is submitted that the defendant No.1 is in possession of 10 kanals 15 marlas of land and out of which 3 kanals 6 ½ marlas falling in khasra no.2319 has been acquired by the National Highway and the compensation awarded was managed to be transferred by the plaintiff in his account and now the defendant is in possession of more than 7 kanals of land in this khasra number. The property consisting of 50 kanals of land in different khasra numbers was partitioned by the father of the parties during his life time. The defendant No.1 being in possession of his own share, he cannot be deprived of his right to raise construction in the land occupied by him. It appears from the record annexed with the file that the plaintiff filed further pleadings in the matter wherein he has more or less reiterated the stand taken in the plaint. The plaintiff has denied that any oral partition has taken place.

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The plaintiff also filed application for interim injunction before the trial

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CM (M) No. 56/2021

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court. The trial court vide order dated 01.10.2021 dismissed the application and allowed the defendant No.1 to raise the construction with the rider that in case the partition is to take place and the construction is required to be demolished the same shall be carried out by the defendants without raising any claim or compensation from the other co-sharers or that the construction being raised shall in no way exceed his share. The appeal preferred against the order of the trial court also came to be dismissed by the court of learned Additional District Judge, Jammu vide order dated 28.10.2021.

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The relief claimed by the petitioner herein in the suit is to the extent that the defendants be restrained from dispossessing or interfering in the peaceful possession of the plaintiff to the extent of a share measuring 5 kanals 5 marlas in Khasra No. 2319 and 1 kanal 14 marlas falling in Khasra No. 2320. The perusal of the written statement filed by the defendants reveals that the defendant No.1 claims to be raising construction in the land allegedly within 7 kanals and 8 ½ marlas of the land falling in Khasra No. 2319. The plaintiff has vaguely stated of his and that of the defendants physical possession in the land in question. He has not stated the extent of suit land of which he is in physical possession, though the plaintiff at the same time states that the defendants are illegally raising construction in the suit land. It is not the case set up by the plaintiff before the trial court that the defendants are not in possession of the land on which they are raising construction or that they hold the land in excess of their share and that is why they

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CM (M) No. 56/2021

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cannot deal with the land in the manner they like unless the land is partitioned. Of course the land is partitioned or not is a matter of trial and this court cannot give its final verdict on the same in the present petition nor the courts below have done so while disposing of the interim application. Mere raising of construction may not amount to ouster of the co-sharer in all the cases and it depends upon facts of each case as to whether such construction leads to the same or not.

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The reliance placed by the petitioner upon the judgment passed by this court in Girdhari Lal vs. Ram Lal (CSA 14/2003 decided on 03.10.2018) is misplaced though there can be no dispute with the proposition of law mentioned on the basis of earlier judgments of the courts. The facts of the case in that case were quite different from the present and the court was dealing with the matter in second appeal.

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In Mohammad Yaqoob Lone versus Hamidullah Lone and others (CM (M) NO.127/2021 decided on 05.10.2021 this court decided the interim application keeping in view the facts of the case. This court will not interfere in the order passed by the courts unless the court is of the view that the order passed by the appellate court is perverse, palpably unjust or apparently not in consonance with the statute and therefore requires interference by this court. Mere wrong interpretation of law or that the court could have taken another view in the matter is not a ground to set aside the order under challenge. In the present case also, the appellate court while dismissing the claim of the plaintiff, petitioner herein, has also upheld the second part of the order which in the opinion of this court

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CM (M) No. 56/2021

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takes care of the interest of the plaintiff in the case.

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The court does not find any reason to interfere in the orders of the both the courts below only for the reason that the court should not have denied the relief to the plaintiff as prayed for by him.

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Mr. G.S.Thakur, learned counsel for the respondents had argued that the writ petition under Article 227 of the Constitution of India does not lie as the court cannot issue writ of certiorari under the said Article.

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Mr. F.S.Butt, learned counsel appearing for the petitioner had contested the argument of the learned counsel for the respondents and submitted that this court in exercise of its supervisory jurisdiction can quash the order of the appellate court if not passed in accordance with law.

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The court need not dwell on this aspect of the matter in detail as this court has not otherwise found merit in the present petition. It is suffice to mention that the hon’ble apex court in Radhey Shyam and ors. Vs. Chhabi Nath and ors reported in 2015 AIR (SC) 3269 while referring to the authorities held that the writ Court should not interfere in cases of property rights and in dispute between private individuals unless there is any infraction of statute or when the private individual is shown to be in collision with a statutory authority.

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In any case, the Court finds no reason to entertain the present petition in view of the discussion made above. The main petition is without merit and is accordingly dismissed along with connected CM(s).

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Jammu/02.12.2021*Narinder

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(Puneet Gupta) Judge Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No

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NARINDER KUMAR SHARMA 2021.12.02 13:09 I attest to the accuracy and integrity of this document

Noor Ali v. Bashir Ahmed and Others

Case brief

What is this about?

What did the court decide?

Noor Ali v. Bashir Ahmed and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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