IMPORTANT POINT
Ex-parte ad-interim injunction must be confined to limits mentioned in injunction order itself.

JUDGMENT

The petitioner, through the medium of present petition, has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India for impugning order dated 12.04.2025 passed by the learned Civil Judge/Munsiff, Sogam, Kupwara (hereinafter for short “the trial court”), whereby the application of respondent No.2 seeking permission to raise construction on a portion of the suit property, has been allowed.

2. It appears that the petitioner/plaintiff has filed a suit for declaration, injunction and partition along with the relief of separate possession against the respondents/defendants in respect of land measuring 47 kanals and 01 marla comprised in various khasra numbers situated at Estate Surigam Lolab, before the learned trial court. In the plaint, the petitioner/plaintiff has alleged that the parties to the suit are the legal heirs of estate holder Ahmad Sheikh and after his death long time back, the parties have become joint owners in respect of the suit property. According to the petitioner/plaintiff, the suit property is unpartitioned and she being the rightful share holder of the suit property is entitled in law to claim her right to separate possession to the extent of her share in the suit property. It has been pleaded that the plaintiff had continuously insisted upon partition of the suit property but she came to know that the defendants in connivance with the revenue agencies have got mutations recorded in a fraudulent manner without the knowledge of the petitioner/plaintiff and that the said mutations stand challenged by her before the competent authority/forum.

3. Respondents No.1 to 3/defendants contested the suit by filing their written statement, in which they admitted that the parties to the suit are descendants of late Shri Ahmad Sheikh. According to the respondents/defendants, the suit property has already been partitioned amongst the parties decades back and that the parties are enjoying the usufructs of their respective shares. It has also been pleaded by the respondent/defendants that the plaintiff in lieu of her share has received cash from them at the time of partition.

4. It seems that after the filing of the suit, the learned trial court passed an exparte ad-interim order on 29.10.2022. The operative portion of the said order is reproduced as under:

“Considering the above facts and reasons, issue notice to the defendants and in the meanwhile, till next date of hearing, parties are directed to maintain status quo on spot viz possession subject to the rider that the party in possession of the suit property shall not be barred for pursuing the agricultural activities on spot without making any act of waste.

This order is subject to the objections of the other side. The other side, however, shall be at liberty to seek remedy under order 39 rule 4 CPC for modification, vacation or alteration to this order. Plaintiffs/applicants is directed to comply with the procedure prescribed under the provisions to Rule 03 of Order 39 CPC and file service affidavit as envisaged under law.”

5. It is pertinent to mention here that the application of the plaintiff/petitioner under Order 39 Rule 1 & 2 of CPC is still pending and it has not been finally decided as yet and the above quoted exparte ad-interim order is still in operation.

6. It seems that during the pendency of the suit, respondent No.2/defendant filed an application before the trial court seeking permission to raise construction of his residential house over the land measuring 03 kanals and 09 marlas comprised in Khasra No.2079 situated at Surigam Lolab, which is part of the suit property. After inviting objections from the plaintiff/non-applicant and after hearing the parties, the learned trial court passed the impugned order whereby respondent No.2/defendant has been permitted to raise construction of his residential house on the aforesaid portion of land on the ground that respondent No.2/defendant is in exclusive posse