HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Reserved on: 28.10.2021

Pronounced on: 03.11.2021

MA No. 17/2021

CM No. 8002/2021

Samitra Devi …….Appellant(s)

Through: Mr. G.S. Thakur, Advocate

Versus

Shree Kumar Kotwal and others ……Respondent(s)

Through: Mr. R.D. Singh Bandral, Advocate

Mr. Vikram Rathore, Advocate

CORAM: HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE

JUDGMENT

1.

Through the medium of this appeal, the appellant seeks setting aside

of the order dated 17.09.2021 passed by the court of learned Principal

District Judge, Bhaderwah (for short the <Trial court=) in a civil suit

titled <Samitra Devi vs Shree Kumar Kotwal and others=, whereby

dismissed the application for grant of stay, on the grounds tailored

therein.

2.

It is contended in the appeal that the appellant filed a civil original suit

for declaration with permanent prohibitory injunction to the effect that

the appellant by virtue of document executed by her husband late

Krishan Lal and his brothers namely Shree Kumar Kotwal and Om

Kumar Kotwal way back in the year 1967 in favour of the appellant, is

the absolute owner in continuous peaceful possession and occupation

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of land bearing Khasra No. 1456 measuring 1 kanal 14 marlas situated

at revenue village Udrana, Tehsil Bhaderwah. It is averred that since

the appellant who is in cultivating possession of the suit land, the

respondent No. 1 filed a petition for partition before the Tehsildar,

Bhaderwah seeking the relief of partition of the land in different

khasra numbers, as such the respondents have no right to maintain

their claim over the suit land. It is further submitted that the

respondent No. 1, husband of the appellant, respondent No. 2,

husband of respondent No. 3 and father of respondent Nos. 4 to 6 have

jointly sold the land falling under Khasra Nos. 351, 355, 358, 362, 363

and 367 measuring 37 kanals, besides this the respondent No. 1 has

also forged the record of joint property falling under Khasra No. 1543

measuring 19 marlas by recording his name in the revenue record and

sold land measuring 2 kanals 11 marlas falling under Khasra No. 3229

min without the consent and knowledge of other co-sharers. Thus the

parties are managing the affairs of their respective shares, as such

respondent No. 1 has no claim over the suit property.

3.

It is contended that along with the main suit the appellant has also

filed an application in terms of order 39 Rule 1 & 2 CPC which has

been rejected by the Trial court after considering the written statement

filed by defendant/respondent on the ground that the same is devoid of

merit.

4.

It is contended that the case set up by the appellant before the Trial

court is that the land is under the cultivating possession of the

appellant since 1967 on the basis of the alleged document which is 50

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years old and as per section 91 of the Evidence Act the document

which is 30 years old need not to be proved and the presumption can

be drawn in favour of the genuineness of the document.

5.

Learned counsel for the respondent has resisted the appeal and urged

for its dismissal.

6.

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

7.

In the above contextual discourse, whereby this Court, while deciding

the case in hand qua grant or refusal of temporary injunction, should

delve deeper into the facts and circumstances of the case or not.

Answer thereto is in negative. The reason being, if this Court

discusses the factum of the suit property, it would tantamount to

deciding the whole case and giving a particular opinion on the subject

matter of the case. So better it would be to confine the pr