HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

(THROUGH VIRTUAL MODE FROM JAMMU)

Reserved on : 06.09.2022.

Pronounced on : 08.09.2022.

CM(M) No. 2/2022

CM No. 56/2022

Yasir Ahmad Sheikh and others

….. Petitioners

Through: Mr. F. A. Wani, Advocate

Vs

Abdul Salam Sheikh and others

.…. Respondents

Through: None

Coram:

HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

JUDGEMENT

The petitioners are the sons of the respondent nos. 1 & 2. The

respondent nos. 1 & 2 have filed a civil suit for declaration with

consequential relief of permanent prohibitory injunction and mandatory

injunction against the petitioners as being the contesting defendants and

the suit is on the file of the Court of learned Munsiff, Pampore.

Through the said civil suit, the respondent no. 1 in particular

has come to challenge a document which is in the form of a sale deed

dated 23.01.2019 in terms whereof, a purported sale of piece of land

measuring 18 marlas falling under survey no. 135 situated at Kadlabal

(Pulpar Area), tehsil Pampore, district Pulwama executed by the

respondent no. 1 in favour of the petitioners is said to have been taken

effect on the sale consideration of Rs.10,55,700/-. Upon the said piece of

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suit land there is a residential house existing in which the respondent no.

1 & 2 and also the petitioners are reported to be residing.

Accompanying the said suit was an application filed by the

respondent nos. 1 & 2 for seeking temporary injunction relief in which

the trial court of learned Munsiff Pampore vide its order dated

09.10.2020 came to direct maintenance of status-quo with respect to the

possession over the said property and also no third party interest creation

qua the said property till the conclusion of the trial.

This order dated 09.10.2001 being passed under Order 39 rule

1 & 2 CPC, 1908 came to be questioned in a civil miscellaneous appeal

under Order 43 rule 1(r), CPC, 1908 before the Court of Additional

District Judge, Pulwama by the petitioners. The lower appellate Court of

learned Additional District Judge Pulwama by undertaking a thorough

examination of facts in the light of the state of law as propounded in the

reported judgements on the subject came to dismiss the said appeal of the

petitioners thereby upholding the order dated 09.10.2021 as passed by the

learned Munsiff, Pampore.

Against the said two orders of the courts below, the petitioners

have come to seek and ask for an exercise of supervisory jurisdiction of

this Court under article 227 of the Constitution of India. The main

premise upon which the petitioners are banking upon to assail the said

two orders is by reference to the fact of the purported sale deed made by

the respondent no. 1 in favour of the petitioners with respect to suit land

for the alleged sale consideration of Rs.10,55,700/-.

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Learned counsel for the petitioners’ submissions sound as if in

law there is no scope whatsoever for maintaining a civil suit for seeking

declaration with respect to illegality/fraud attending execution of an

instrument, which in the present case is the sale deed, qua an immoveable

property which in the present case is the said piece of land. The

provisions of the Specific Relief Act, 1963 in terms of section 31 & 34

provide for a suit for declaration and also for cancellation of an

instrument whether or not a person challenging by way of a civil suit an

instrument concerning immoveable property is able to succeed or not is a

question to be decided and determined by a given civil court upon the

basis of a full-drawn trial in a civil suit.

Thus the trial Court in its discretion in the present has come to

put in place an interim injunctory direction which is commensurating

with the physical position obtaining with respect to the suit property as

the same having