The main legal point established in the judgment is the need to establish a prima facie case, balance of convenience, and irreparable loss and injury when considering the grant of interim relief through an order of injunction under Order XXXIX of CPC.

JUDGMENT

1. In this appeal, Order dated 22nd February 2021, passed by Principal District Judge, Budgam, whereby the court of Principal District Judge, Budgam, in a civil suit titled as Mst Jana v. Mohammad Shaban Wani and others, has restrained defendants before it, i.e., present appellants and respondents 2 to 5, from alienating, creating any third party interest or changing the nature of the suit property till final disposal of the main suit, is under challenge on the grounds mentioned therein.

2. I have heard learned counsel for parties and considered the matter.

3. Learned senior counsel appearing for appellants, after making submissions with regard to facts of the case, has submitted that in view of the facts and circumstances of the case the Trial Court could not have passed the impugned order of injunction. He contends that succession with respect to the property in question opened in the year 1954, when Ahmad Wani passed away and it is after more than 66 years, i.e., in October 2020, that respondent no.1 instituted a suit, claiming that property is joint and this aspect of the matter has been ignored by the Trial Court. It is also stated that the Trial Court had ignored that within the period of 66 years mutation was effected in the year 1960 and 1973 and none of the parties questioned these mutations either before revenue authorities or otherwise and that existence of mutations clearly establish that appellant no.1 was in possession of whole property to the exclusion of respondent no.1 and his other sisters. It is also contended that the Trial Court has lost sight of the facts and legal position that claimant to property of late Ahmad Wani at no point of time right after 1954 have claimed their share in the property and on the contrary, appellants had established prima facie that sharing was done between appellant no.1 and respondent no.1 in accordance with customary law as was prevalent at that point of time which law finally and conclusively determined rights of parties.

4. According to learned senior counsel for appellants, when plaintiff/respondent no.1 attained majority, the whole property left behind by Ahmad Wani was partitioned and it was in the year 1973 that respondent no.1 out of love, affection and freewill orally gifted away her share of property falling under Khewat no.14 & 15 by virtue of mutation no.244 dated 1st April 1973, to appellant no.1 as being her sole brother, who accepted and took possession thereof and since then was in actual and physical possession without any interference or claim. Besides, appellant no.1 received consideration/compensation amount in lieu of acquisition of land measuring 03 Kanals, approximately, by the Government of J&K through Railway Department. It is also contended that plaintiff being fully aware about the fact that she had already orally gifted through public declaration of her share to appellant no.1, as such, she did not make any objection or claim before competent authorities at the time of acquisition of land by Railway Department and also when appellant no.1 sold a portion of land way back in 2002. Learned senior counsel also submits that order impugned has created confusion as it is the case of appellants that shops stand alienated except to the extent retained by children of appellants 2 to 4 and under law whatever interests' tenants have, they have already been created and insofar as changing nature of suit property is concerned, it is a vague expression.

5. Per contra, learned counsel for respondent no.1 has stated that respondent no.1 is real sister of appellant no.1 and appellants 2 to 4 are daughters-in-law of appellant no.1 and that after death of father of appellant no.1 and respondent no.1, the property left behind him devolved upon appellant and respondent no.1. It is also stated that although plaintiff/respondent no.1 approached defendant/appellant no.1 for her share from the property left behind by their father, but he declined, so she approached Patwar