IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 07.05.2025 Pronounced on:23.05.2025 FAO No.12/2020 MOHAMMAD SHABAN GANAI & ANR. …PETITIONER(S)

Through: - Mr. N. A. Kouchai, Advocate.

Vs.

MUSHTAQ AHMAD RATHER …RESPONDENT(S)

Through: - Mr. Rouf Parray, Advocate.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

1) The appellants, through the medium of present appeal, have challenged order dated 20.10.2020, passed by the learned Principal District Judge, Budgam, whereby application filed by them under Order 39 Rule 1 and 2 CPC has been dismissed.

2) It appears that the appellants had filed a suit for preemption in respect of land measuring 01 kanal bearing Survey No.361/124 situated at Village Aaribagh Tehsil Chadoora, for exercising their right of prior purchase against their co-sharer, Mst. Farzi, who had sold the said land to one Mohammad Abdullah Sheikh. Vide judgment and decree dated 19.02.2007 passed by learned Sub Judge, Budgam, the aforesaid suit was decreed in favour of the appellants and the defendants in the suit i.e. Mst. Farzi and Mohammad Abdullah Sheikh, were directed to deliver possession of the land in question in favour of the appellants.

3) It seems that after the passing of aforesaid judgment and decree by learned Sub Judge, Budgam, the respondent herein purchased the land in question by virtue of sale deed dated 05.10.2007 and came into possession thereof. It also appears that the respondent filed a civil suit during the pendency of the execution proceedings seeking a declaration and permanent injunction against the appellants and one Mohammad Ashraf Baba. The respondent prayed for a declaration that decree dated 19.02.2007 is null and void, with a further declaration that he is owner in possession of the suit land.

4) An application under Order 7 Rule 11 CPC came to be filed by the appellants herein before the trial court, which came to be rejected in terms of order dated 16.06.2008. The said order came to be challenged by the appellants before this Court by way of a revision petition bearing Civil Revision No.127/2008. Vide judgment dated 22.08.2012 passed by this Court, the revision petition was allowed and the plaint filed by the respondent herein was rejected and he was given liberty to file an application in terms of Order 21 Rule 99 of CPC before the Executing Court for determination of his rights in respect of the land in question.

5) It appears that in the meantime, Mohammad Abdullah Sheikh, who had purchased the land in question from the original owner, Mst. Farzi, challenged the judgment and decree dated 19.02.2007 by filing an appeal before the learned Principal District Judge, Budgam. Since the appeal was time barred, an application seeking condonation of delay was also filed by Shri Mohammad Abdullah Sheikh before the Principal District Judge, Budgam. During the pendency of the proceedings relating to condonation of delay application, the appellants herein, who are respondents in the appeal before the court below, moved an application seeking a temporary injunction against the respondent herein so as to restrain him from raising any construction on the suit land.

6) The respondent herein, who is not a party to the appeal before the Court of learned District Judge, Budgam, contested the application by filing his reply, in which he submitted that he has purchased the land in question by virtue of sale deed dated 05.10.2007 and the same is owned and possessed by him for the last more than 13 years. It was claimed by the respondent that the appellants herein have no right to cause interference in the land in question.

7) The learned District Judge, after hearing the parties and after analyzing the material on record, dismissed the application of the appellants in terms or impugned order dated 20.10.2020, on two counts; (i) that an interim injunction cannot be passed against a stranger to the case; and (ii) because the respondent herein is not a party to the appeal pending before