Commissioners Can't Record Finding About Possession Of Suit Land But They Can Submit Report On Physical Features Existing On Spot: Jammu & Kashmir & Ladakh High Court
|The petitioner had approached the Jammu & Kashmir and Ladakh High Court challenging the order dismissing the appeal against the rejection of the application filed under Order 39 Rule 1 and 2 of the CPC .
While upholding the dismissal of a petition seeking interim injunction, the Jammu & Kashmir and Ladakh High Court has held that it was not open to the Commissioners to record any finding about the possession of the suit land but they were well within their jurisdiction to submit a report as regards the physical features existing on spot.
The petitioner had approached the High Court challenging the order of the Principal District Judge, Kulgam (Appellate Court), whereby the appeal against the order rejecting the application of the petitioner under Order 39 Rule 1 and 2 of the CPC was dismissed.
The Single Bench of Justice Sanjay Dhar said, “It is true that it was not open to the Commissioners to record any finding with regard to possession of the suit land and it is also correct that it was not open to the Commissioners to record the statements of the witnesses to ascertain as to which of the party is in possession of the suit land. However, the two Commissioners were well within their jurisdiction to submit a report as regards the physical features existing on spot. To that extent, their reports cannot be ignored, at least for the purpose of understanding and co-relating the pleadings of the parties for the limited purpose of deciding the application under Order 39 Rule 1 and 2 of the CPC.”
Advocate G. A. Lone represented the Petitioner, while Senior Advocate Jahangir Iqbal Ganai represented the Respondent.
Factual Background
The petitioner (plaintiff) had filed a suit seeking a permanent prohibitory injunction against the respondents (defendants) before the trial court. It was pleaded by the plaintiff that he is owner in possession of a land situated at Village Munchwa, Tehsil Yaripora. It was further pleaded that the plaintiff has planted apple trees over the suit land about 20 years back, but some portion of the suit land towards the Yamrach-Munchwa pathway was lying vacant. It was further brought to the Court’s attention that the defendants had started illegal, unjustified and unwarranted interference in the plaintiff’s possession over the suit land and that they were trying to dispossess him of the portion of the suit land which was situated towards Yamrach Munchwa pathway.
The plaintiff had sought a decree of permanent prohibitory injunction against the defendants restraining them from causing any sort of interference with the suit land, with a further injunction restraining the defendants from forcibly dispossessing the plaintiff from the suit land. The trial court, before deciding the application for the grant of an interim injunction, ordered the appointment of two Commissioners. On a perusal of the submissions, facts and the report of the Commissioners, the Bench dismissed the Petition. The appeal against the same was dismissed. Aggrieved thereby, the plaintiff approached the High Court.
Reasoning
The Bench found that as per the Record of Rights, the whole suit land existed in the name of the plaintiff. “There can also be no dispute to the legal position that the document of exchange, on which the defendants have placed reliance, is nothing but a piece of paper having no validity in the eyes of law, inasmuch as it is not even written on a stamp paper nor is it registered in accordance with law. Learned counsel for the petitioner is right in his submission that the said document does not confer any right upon the defendants to either possess a portion of the suit land or raise construction thereon in view of the provisions contained in Section 138 of the J&K Transfer of Property Act read with the provisions contained in Section 49 of the Registration Act”, the Bench said.
It was further noticed that the defendants claimed that out of the suit land, they were in possession of 27 marlas located towards the Yamrach-Munchwa pathway, and the plaintiff admitted that portion of the suit land towards the said pathway was vacant and there were no apple trees grown by him on that portion of the land. The two Commissioners appointed by the trial court, while exercising their powers under Order 39 Rule 7 CPC, had rendered their reports confirming the existence of fencing around the portion of land situated towards the Yamrach-Munchwa pathway.
It was further noticed that the defendants were in possession of a portion of the suit land situated towards the Yamrach-Munchwa pathway. Therefore, the tentative findings reached by the trial court, as upheld by the Appellate Court, as regards the possession couldn’t be termed erroneous.
“I am afraid neither the trial court or the Appellate Court nor this Court can come to the rescue of the plaintiff as proof of possession is sine qua non for grant of a permanent prohibitory injunction against dispossession”, the Bench held while dismissing the Petition.
Cause Title: Mohammad Afzal Malik v. Mohammad Akram Wani & Ors (Cause Title: CM(M) No.129/2024)
Appearance
Petitioner: Advocate G. A. Lone
Respondent: Senior Advocate Jahangir Iqbal Ganai, Advocate Mehnaz Rather