Supp list 1

Serial No. 198

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

CM No. 8022/201 in

CM (M) No 196/2021

Caveat No. 1945/2021

Ghulam Mohammad Mochi and Ors

Petitioner(s)/ Appellant(s)

Through: -

Mr Sheikh Hilal Ahmad, Advocate.

V/s

Mohammad Yousuf Shah and Others

…..Respondent(s)

Through: -

Mr. Abid Zahoor, Advocate for Caveator/Respondents

CORAM:

Hon?ble Mr. Justice Sanjeev Kumar, Judge.

ORDER

07.12.2021

1.

The petitioners are plaintiffs in a suit titled <Ghulam Mohammad

Mochi and Ors. Vs. Mohammad Yousuf Shah and Ors.,= subjudice

before the court of learned Munsiff, Budgam, (for short >the trial

court?).

2.

The suit of the petitioners pertains to the land measuring 07 marlas

covered under Survey No. 1148 situate at Khansahib, Budgam, which

as per the petitioners was got mutated in favour of the respondents 1

to 4, on the basis of allegedly, fraudulent oral gift deed. The

petitioners also seek a decree of mandatory injunction directing the

respondents 1 to 4 herein (defendants in the suit) to dismantle the

construction made on the suit land upto plinth level and handover the

vacant possession to the petitioners.

3.

When the suit came up for consideration, the trial court vide its

ad-interim ex-parte order dated 24.12.2020 directed the parties to the

suit to maintain status-quo on spot with regard to the suit property.

The matter was considered after the respondents herein filed

objections and the trial court vide its order dated 15.09.2021, modified

the order of status-quo passed on 24.12.2020 and restrained the

respondents herein from alienating the suit property till final disposal

of the case.

4.

The order dated 15.09.2021, passed by the trial court was assailed by

the petitioners herein before the court of Additional District Judge

(Fast Track), Budgam in an appeal. The appellate court after hearing

the parties and having gone through the record, upheld the order of

trial court dated 15.09.2021 with the modification that the respondents

herein shall furnish an undertaking before the trial court, to the effect

that whatever construction they would raise on the disputed land shall

be pull down/removed by them at their own cost, in case, the

petitioners herein succeed in the suit. The petitioners are still

aggrieved and are before this court in this petition filed under Article

227 of the Constitution of India.

5.

Heard learned counsel for the parties and perused the contents of the

plaint and the relief claimed in the prayer clause.

6.

The petitioners have admitted the respondents to be in possession of

the suit land. It is categoric case setup by the petitioners in their plaint

that respondents 1 to 4 have unauthorizedly raised construction upto

plinth level on the land jointly owned by the petitioners and proforma

respondents. It is also not in dispute that there is a mutation attested in

favour of the respondents 1 to 4, on the basis of oral gift deed which,

as per the parties, is subject matter of challenge before the revenue

courts.

7.

Be that as it may, there is enough material on record to come to a

prima-facie conclusion that the possession of the subject land is

presently with respondents 1 to 4. The trial court vide its order dated

15.09.2021 has already provided that there shall be no alienation of

the suit land by any of the parties and the appellate court while

modifying the order of the trial court has further provided that in case

the construction is raised by the respondents 1 to 4 on the suit land,

the same shall be removed/pull down by them at their own risk and

cost if, the petitioners herein ultimately succeed in the suit

8.

That being the position, I find no illegality or infirmity in the order

impugned. Given the nature of controversy involved for adjudication

in the suit, the trial court as well as the appellate court have taken

adequate care to see that the