No Bar On Raising Construction On Property In Possession When Status Quo Order Is In Respect Of Possession Of Property: Jammu & Kashmir & Ladakh High Court
The petitioner had invoked the jurisdiction of the Jammu & Kashmir and Ladakh High Court under Article 227 of the Constitution, challenging a Trial Court order.
The Jammu and Kashmir and Ladakh High Court has held that there is no bar on the parties to the suit on raising construction on the portion of property which is in their respective possession when the Trial Court has ordered that the status quo has to be maintained by the parties with regard to the possession of the suit property.
The petitioner had invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India impugning the order of the Civil Judge/Munsiff, Sogam, Kupwara (Trial Court), whereby the application of the second respondent-defendant seeking permission to raise construction on a portion of the suit property, had been allowed.
The Single Bench of Justice Sanjay Dhar said, “The status quo is clearly in respect of possession of the suit property. It has been further clarified that the party shall not be debarred from pursuing their agricultural activities on spot without making any act of waste. There is no restraint on the parties to the suit on raising construction on the portion of property which is in their respective possession. Had it been a case of blanket order of status quo passed by the learned trial court, perhaps the things would have been different but it is a case where the learned trial court has qualified its order of status quo by mentioning the word “possession”, meaning thereby that the status quo has to be maintained by the parties to the suit with regard to possession of the suit property.”
Senior Advocate R. A. Jan represented the Petitioner, while Advocate Arif Sikandar represented the Respondent.
Factual Background
The Petitioner-plaintiff had filed a suit declaration, injunction and partition along with the relief of separate possession against the respondents/defendants in respect of a land before the Trial Court. The petitioner/plaintiff had alleged that the parties to the suit were the legal heirs of estate holder Ahmad Sheikh, and after his death they became joint owners in respect of the suit property. According to the petitioner/plaintiff, the suit property was unpartitioned, and she, being the rightful shareholder of the suit property, was entitled in law to claim her right to separate possession to the extent of her share in the suit property.
The respondents, on the other hand, contended that the suit property had already been partitioned amongst the parties. The Trial Court passed an ex parte ad-interim order directing the parties to maintain status quo on the spot, viz, possession subject to the rider that the party in possession of the suit property shall not be barred from pursuing the agricultural activities. The application of the plaintiff/petitioner under Order 39 Rule 1 & 2 of CPC is still pending.
During the pendency of the suit, the second respondent-defendant filed an application before the Trial Court seeking permission to raise a construction of his residential house over the land which was part of the suit property and the permission was granted. Aggrieved thereby the Petitioner approached the High Court.
Reasoning
Referring to the ex-parte ad interim order, the Bench noted that what had been protected by the interim order was the possession of the parties over the suit property. The status quo was clearly with respect to possession of the suit property. It had been further clarified that the party shall not be debarred from pursuing their agricultural activities on the spot without making any act of waste.
As per the Bench, there was no restraint on the parties to the suit on raising construction on the portion of the property which was in their respective possession. The Bench also mentioned that by raising construction on the suit property, the status quo as had been directed by the trial court was not infringed.
“Therefore, in the first place there was no need for respondent No.2 or for any other party to seek permission of the court for raising construction over the portion of the suit property which was in their possession. It seems that by way of abundant caution, respondent No.2 has made an application before the learned trial court seeking permission to raise construction on the property in question”, the Bench stated.
The Bench further held that the concern of the petitioner, that nature of the suit property would get changed in case respondent-defendant is allowed to raise construction of the residential house on a certain portion of the suit property, could be addressed only if she could obtain an order of status quo from the Trial Court concerning construction on the suit property.
“Therefore, determination of the merits of the contentions raised by the learned Senior Counsel appearing for the petitioner in the present proceedings would only be an academic exercise because even if the impugned order is set aside, still then there is no bar to the parties to the suit to raise construction on the portions of the suit property which are in their possession. This is so, because the interim order dated 29.10.2022 does not create any such bar to the parties to the suit”, it added.
Thus, the Bench disposed of the Petition by ordering that the petitioner would be at liberty to approach the Trial Court seeking disposal of her interim application under Order 39 Rule 1 & 2 CPC on its merits. The Court also made it clear that it would be open to the petitioner to urge before the Trial Court to enlarge the scope of the order of status quo to cover the activity regarding construction on the suit property at the time of passing of final order in the application under Order 39 Rule 1 and 2 CPC.
Cause Title: Mst Zoona Begum v. Ghulam Mohammad Sheikh & Ors. (Case No.: CM(M) No.168/2025)
Appearance:
Petitioner: Senior Advocate R. A. Jan, Advocate Adil Mushtaq
Respondent: Advocates Arif Sikandar, Mir Umer