Point of Law: Grant or refusal of interim relief/temporary injunction - Usually, prayer for grant of an interlocutory injunction is at a stage when the existence of legal right asserted by plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at trial on evidence.

JUDGMENT :

1. Through the medium of this writ petition filed under Article 227 of the Constitution of India, the petitioners seek setting-aside of the Order dated 23.08.2021, passed by the court of Principal District Judge, Kulgam (for short the “Appellate Court”) in a Civil Miscellaneous Appeal titled as ‘Hamidullah Lone and others vs. Mohd Yaqoob Lone and others’, by which the Order dated 17.06.2021, passed by the court of Sub Judge, Kulgam (for brevity the “Trial Court”) in a case titled ‘Hamidullah Lone and others vs. Mohd Yaqoob Lone and others’, dismissing the interim application of the respondents, has been set-aside, on the grounds tailored therein.

2. Heard the learned counsel for the parties and considered the matter.

3. A civil suit (Annexure II to writ petition) titled ‘Hamidullah Lone and others vs. Mohd. Yaqoob Lone and others’, has been filed by the respondents before the Trial Court, in which they state that the respondents and petitioner no.1 herein are the real brothers and are the owners in joint possession of the land measuring 47 Kanals and 17 Marlas, situated at Village Guffan Tehsil Yaripora District Kulgam (hereinafter for the sake of brevity is being called as the “suit property”) which fact, according to the respondents, is evident from the revenue records. The suit land is claimed to be joint and unpartitioned as no legal partition thereof by metes and bounds have taken place.

3.1. It is maintained by the respondents in their plaint that the petitioner no.1 herein is issueless, without having wife and was, therefore, residing with his brother, i.e., plaintiff no.3 – respondent no.3 herein. It is also contended by the respondents in their civil suit that in the year 2019, the petitioner no.1 changed his residence from respondent no.3 to the house of his sister, namely, Mst. Zareefa W/o Nazir Ahmad and taking the undue advantage of this position, Mst. Zareefa and her husband, during lockdown in the month of August 2019, managed two documents consecutively, i.e., one gift deed dated 30.09.2019 and got it registered with the Sub Registrar, Kulgam on 04.10.2019 for a commercial plot of land out of the suit land measuring 04 Kanals falling under Survey No.209 Min, situated at Village Guffan Tehsil Yaripora District Kulgam and another the Sale Deed dated 29.10.2019 for the land measuring 04 Kanals falling under Survey No.209 Min, 243 Min, 252 Min.

3.2. It has also been mentioned by the respondents in their suit that they came to know about the abovementioned documents in the month of February 2020, when the defendants 2 to 5 – petitioners 2 to 5 herein, embarked a landed portion out of the suit land falling under Survey no.209 for construction of a building and the plaintiffs/respondents approached the Patwari concerned, where they got the information about these documents and they, accordingly, applied for certified copies thereof, which were provided to them on 18.02.2020 and 20.03.2020. Aggrieved of these documents, the plaintiffs/respondents have thrown challenge thereto in the civil suit before the Trial Court.

3.3. According to the plaintiffs/respondents, the suit land included the land mentioned in the documents also, is joint and unpartitioned as no legal partition of the suit land by metes and bounds have taken place in between the parties till date and in this way the plaintiffs and defendant No.1 are the co-owners/co-sharers of the suit land under law. It is also maintained that defendant No.1, being co-sharer of suit land with the plaintiffs, has no legal authority to execute the document with regard to the whole portion of the land falling under Survey No.209 as being of the commercial utility/prospects in favour of the defendant Nos. 2&3.

3.4. Plaintiffs/respondents have also insisted that if the documents are taken as legal, still the defendant Nos.2&3 stepped into the shoes of the defendant No.1 and will get the status of co-sharers with the plaintiffs on the suit land and may get the land mentione