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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
VINOD CHATTERJI KOUL, J.
Jana Begum - Petitioner
Versus
UT of J&K and Ors. (Revenue Deptt.) - Respondents
CM(M) No. 152 of 2021, CM No. 6747 of 2021, Caveat No. 1095 of 2021
Decided On : 27-11-2021
Article 227 - Dispute over Possession and Ownership of Shop - Order No. SDM/Pgm/R/18/343-45, DCA/Reader/20-21/169-70, SDM/PGM/R/20/664/66, SDM/PGM/R/20/725-29 - The court discussed the dispute over possession and ownership of a shop in Meena Bazar, Pahalgam, which was allotted to Abdul Khaliq Beigh in 2006. The petitioner, Mst. Jana Begum, claimed ownership through a rent deed, while the respondent no. 8 claimed possession based on a will deed executed by Abdul Khaliq Beigh in his favor. The court considered the orders passed by various authorities and granted temporary injunction in favor of the respondent no. 8, allowing him to run the shop until final disposal of the suit.
Fact of the Case:
The dispute arose over the possession and ownership of a shop in Meena Bazar, Pahalgam, which was allotted to Abdul Khaliq Beigh in 2006. The petitioner, Mst. Jana Begum, claimed ownership through a rent deed, while the respondent no. 8 claimed possession based on a will deed executed by Abdul Khaliq Beigh in his favor. The Trial court granted temporary injunction in favor of the respondent no. 8, allowing him to run the shop until final disposal of the suit.
Finding of the Court:
The Trial court found that the respondent no. 8 had a prima facie case and would suffer irreparable loss if temporary injunction was not granted. The balance of convenience also favored the respondent no. 8. The Appellate court upheld the Trial court's decision, stating that the rights of the parties over the shop would be determined during the trial of the case.
Issues: The main issue was the dispute over possession and ownership of the shop, with conflicting claims based on a rent deed and a will deed.
Ratio Decidendi: The court granted temporary injunction in favor of the respondent no. 8, considering his prima facie case and the balance of convenience. The rights of the parties over the shop would be determined during the trial of the case.
Final Decision: The petition under Article 227 was dismissed, and the orders passed by the Trial court and Appellate court were upheld.
JUDGMENT :
1. This petition under Article 227 of Constitution of India has been filed by the petitioner-defendant seeking quashing of the order dated 22.03.2021 passed by learned Sub-Judge, Anantnag and also order dated 26.07.2021 passed by learned District Judge, Anantang, whereby the order dated 22.03.2021 has been upheld by the learned Principal District Judge, Anantnag. The petitioner has also sought direction in the nature of mandamus to respondent no. 1 to conclude de novo enquiry already initiated by giving her opportunity of being heard within a time bound manner.
2. Briefly stated, the facts giving rise to filing of this petition are that the shop in Meena Bazar, Pahalgam, was allotted to one Abdul Khaliq Beigh of Zadipora, Khanabal, in 2006 vide order No. 627-29 dated 05.5.2006 by the Executive Engineer, Pahalgam Development Authority and possession of the said shop was handed over to him. In the said shop, Abdul Khaliq Beigh was running the business of Grocery Store. Plaintiffrespondent no. 8 is a grandson of Abdul Khaliq Beigh, and petitioner, Mst. Jana Begum, is a widow of Abdul Khaliq. Father of the respondent no. 8, grandson of Abdul Khaliq, namely, Abdul Hamid Beigh had died on 03.10.2002, leaving behind respondent no. 8 and two daughters and wife. Abdul Khaliq has also died in the year 2008. During life time aforesaid Abdul Khaliq, grandfather of respondent no. 8-plaintiff before the Trial court, executed a Will in favour of his grandson in respect of the shop in question which was already in possession prior to the order of allotment. At the time when Abdul Khaliq died in the year 2008, the plaintiff-respondent no. 8, who is also grandson of the petitioner, was minor, therefore, the possession of the shop was with his mother and it is only after attaining the age of majority, he started running business in the suit shop as has been claimed by him before the Trial court. From the date of death of the grandfather of the plaintiff-respondent no. 8, shop in question remained closed. Petitioner, who is grandmother of plaintiff-respondent no. 8, raised dispute with regard to the shop in question and on her application various orders were passed by SDM, Pahalgam; Chief Executive Officer, Pahalgam Development Authority, Pahalgam; and also, by the Deputy Commissioner, Anantnag. In pursuance to the various orders, the shop in question was ordered to be sealed; then it was directed to be de-sealed. The possession was ordered to be handed over to the plaintiff-respondent no. 8. De novo enquiry was ordered by Deputy Commissioner, Anantnag, and further the possession sought to be taken back.
3. The petitioner herein claimed that she is owner of the shop and had executed rent deed in respect of the suit shop. So, in brief the dispute so raised by the grandmother of the respondent no. 8 was with regard to the possession and owner of the suit shop in question. It was in view of the said dispute raised that those orders have been passed by the authorities mentioned above.
4. The orders passed by the SDM and Deputy Commissioner, Anantnag, were challenged in a Civil Suit filed by the respondent no. 8, precisely on the ground that the authorities have passed orders without having any jurisdiction and thus the said orders sought to be quashed. The dispute was civil in nature. For determination of title and possession in respect of shop in question and such dispute was to be determined in a Civil court.
5. Before the Trial court, the plaintiff has sought following reliefs:-
2. That the plaintiff be declared entitled to retain and enjoy the possession of shop no. 9 of Block B situated at Meena Baza
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