Back
2014 Supreme(J&K) 487
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohammad Magrey, J.
Gulzar Ahmad Khankashi – Appellant
Vs.
Shahama – Respondent
CIMA No. 56 of 2014 and CMP No. 172 of 2014
Decided On : 30-06-2014
For the Appellant :M.A. Dar, Advocate
For the Respondents:A.H. Naik, Sr. Advocate and Athar, Advocate
Headnote:
Civil Appeal - Property Dispute - Jammu and Kashmir State Land (Vesting of Ownership to Occupant) Act, 2001 - [Order XXXIX Rule 1 CPC] - The court discussed the legal provisions of the Jammu and Kashmir State Land (Vesting of Ownership to Occupant) Act, 2001 and Order XXXIX Rule 1 CPC. The court emphasized the need to establish a prima facie case for the grant of interim injunction and the exercise of discretion by the court. The court highlighted the contradictory nature of the appellant-plaintiff's pleadings and the need to determine legal issues concerning the maintainability of the suit and the appellant-plaintiff's right to hold immovable property as a foreign citizen.
Fact of the Case:
The appellant-plaintiff filed a suit for declaration, rendition of accounts, and perpetual injunction involving three properties. The trial court partly allowed the application for ad-interim relief, leading to the appellant-plaintiff filing a civil first appeal seeking to refrain the respondents-defendants from creating any third party interest in the properties pending disposal of the case.
Finding of the Court:
The court found that the appellant-plaintiff failed to establish a strong prima facie case regarding property No. 1. The court emphasized the contradictory nature of the appellant-plaintiff's pleadings and the need to determine legal issues concerning the maintainability of the suit and the appellant-plaintiff's right to hold immovable property as a foreign citizen.
Issues: The court identified legal issues concerning the maintainability of the suit and the appellant-plaintiff's right to hold immovable property as a foreign citizen as the key issues to be determined by the trial court.
Ratio Decidendi: The court emphasized the need to establish a prima facie case for the grant of interim injunction and the exercise of discretion by the court. The court highlighted the contradictory nature of the appellant-plaintiff's pleadings and the need to determine legal issues concerning the maintainability of the suit and the appellant-plaintiff's right to hold immovable property as a foreign citizen.
Final Decision: The appeal was partly allowed, and the impugned order passed by the trial court was modified. The trial court was directed to frame necessary legal issues, treat them as preliminary issues, and decide them in accordance with the law after hearing the learned counsel for the parties.
Ali Mohammad Magrey, J.
1. This Civil 1st. Miscellaneous Appeal has been preferred by the appellant-plaintiff against the order dated 05.04.2014 passed by the learned Additional District Judge, Srinagar, in a suit for declaration, rendition of accounts and perpetual injunction, whereby and whereunder the learned trial court has decided the application for ad-interim relief filed by the appellant-plaintiff, partly allowing and partly disallowing the prayer made therein.
2. The appellant, O. Agha, previously known as Ali Agha, son of Nasir Ali Agha, resident of Town House 101, Motor City, Green Community, Dubai, through his duly constituted Attorney, namely, Gulzar Ahmad Khankashi son of Abdul Aziz Khankashi resident of Munawarabad, Srinagar, filed a suit for declaration, rendition of accounts and perpetual injunction involving three properties, namely, a house alongwith land measuring 4 kanals comprised in plot No. 71, popularly known as Harmony House/Sun House/Grey Stone, situated at Rajbagh, Srinagar; land measuring 71 kanals comprised in various Khasra numbers delineated in paragraph (e) of the plaint situated at Mujgund; and a house and land measuring 4 kanals, 2 marlas comprised in Khasra No. 344/182 situated at village Mammar, Pahalgam, for the sake of convenience, described by the trial court in its impugned order as property No. 1, property No. 2 and property No. 3, respectively.
3. Alongwith the suit, the appellant-plaintiff filed an application for grant of ad-interim relief to the effect that pending final disposal of the suit, non-applicants 1 and 2 (respondents herein) be restrained from creating any third party interest jointly or severally, in any manner, in the property No. 1, the left over land from property No. 2 and property No. 3.
4. On 20.6.2013, the trial court, on consideration the application for grant of interim relief, made the following ex parte order:
The matter appears to be one of emergency nature and if the interim relief is not granted in favour of the plaintiff, plaintiff will suffer irreparable loss and also will be non-suited. In these circumstances, I am of the opinion that the matter warrants immediate intervention by way of interim relief to the plaintiff. As such, issue notice to the other side. Meanwhile, it is ordered that no transfer of suit property shall take place and no 3rd party interest shall be created.
5. The aforesaid order was challenged by the defendants-respondents in Civil 1st Miscellaneous Appeal No. 174/2013. A Coordinate Bench, relying on the Full Bench decision of this Court in M/s. Astral Traders v. M/s. Haji Mohammad Shaban Dar, 1982 KLJ 325, decided and disposed of the aforesaid miscellaneous appeal vide order dated 05.03.2014 in the following terms:
This Civil 1st Miscellaneous Appeal is, accordingly, disposed of with a direction to the parties to appear before the trial court on 12th March 2014. The trial court shall be expected to dispose of the application under Order 39 Rule 1 or 2, after considering the objections of the appellants preferably within a period of 10 days thereafter.
6. The learned trial court, after hearing the learned counsel for the parties and considering the rival pleadings and claims put forth by them, has disposed of the application for grant of interim relief by the impugned order dated 05.04.2014, operative portion whereof is quoted hereunder:
For the aforesaid reasons instant application is partly allowed to the extent of unsold property No. 2 and dismissed regarding property No. 1 and property No. 3. It is ordered that status quo with regard to title and possession of unsold property No. 2 shall be maintained by both the parties. Nothing stated in the disposal of this application shall be construed as expression of opinion on the merits of the case. Application is disposed of accordingly and shall form part of the main file.
7. Fe
