IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

FAO No. 18/2021.

CM No. 4979/2021.

Reserved on August 2nd, 2021.

Pronounced on 9th, August, 2021.

Khazir Mohammad Mir

………Appellant(s)

Through: Ms. P. S. Ahmad, Advocate

V/s

Abdul Majid Dar.

…….Respondent(s)

Through: Mr. Waseem Afzal Rather, Advocate.

CORAM: HON’BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

JUDGEMENT

1. The present Civil First Misc. Appeal has been preferred

against the order dated 21st June, 2021, passed by the court of

learned Pr. District Judge, Kulgam.

2. Briefly stated, the facts are as under:-

3. A civil suit for permanent prohibitory injunction came to be filed

by the plaintiff against the defendant seeking an injunction

from causing any sort of interference with the peaceful

possession over the suit land, measuring 1 Kanal 18 marlas,

falling under survey No. 355 Min, situated at Khrewan Chadeer

Tehsil Qaimoo, Kulgam. With a view to show that the plaintiff

was in possession of the said property, a Khasra Girdawari of

the year 2020, was also produced. Alongside the suit, an

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application under Order XXXIX Rule 1 CPC was filed seeking

interim injunction against the defendants.

4. By virtue of order dated 31st July, 2021, the court directed the

parties to maintain Status-quo on spot till next date of hearing.

5. Applications came to be filed in the aforementioned

proceedings claiming violation of the order of status-quo. A

detailed report was sought by the court below from the SDPO

Kulgam with regard to the violation of the order of status-quo.

The SDPO in his report submitted that the cultivation of the

suit land was done by the defendant-respondent herein. An

application was also filed by the defendant-respondent

wherein permission was sought from the court for harvesting

the crops on the suit land and also to clarify the order of

status-quo passed by the court below on 31st July, 2020.

6. The learned District Judge, Kulgam by virtue of order dated

21st June, 2021 modified the order of status-quo to the extent

of permitting the defendant-respondent to continue his

agricultural pursuits in the suit land. The status-quo order was

also directed to remain intact in so far as creating third party

interest over the suit property or making any construction on

the suit land was concerned.

7. On a perusal of the order impugned, it can be seen that the

learned District Judge, Kulgam, has satisfied himself with

regard to the physical possession of the defendant over the

suit land on the basis of firstly the report of the SDPO and also

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the report of Revenue Officer dated 24.11.2020, which has

been placed on record by the appellant herein. The report

(supra) by the Tehsildar suggest that the land measuring 1

Kanal 8 Marlas, falling under survey No. 355 Min situated in

estate Khrewan Chadeer is in the possession and personal

cultivation of the applicant Abdul Majid Dar. It was in these

circumstances that the learned District Judge, dealt with the

issue of the plaintiff not being in possession of the land in

question and, therefore, passed the order impugned,

permitting the defendant-respondent to continue agricultural

pursuits over the suit land.

8. I have gone through the order impugned and also heard

learned counsel for the parties at length.

9. The scope of interference in such matters by the appellant

court, while exercising powers of appeal under Order 43, is no

longer res intergra. The Apex Court in Wander Ltd. & Anr. V.

Antox India P. Ltd, 1990 (Supp) SCC 727 held as under:

The appeals before the Division Bench were against

the exercise of discretion by the Single Judge. In
such appeals, the Appellate Court will not interfere
with the exercise of discretion of the court of first
instance and substitute its own discretion except
where the discretion has been shown to have been
exercised arbitrarily, or capriciously or perversely or
where the court had ignored the settled principles of
law regulating grant or refusal of interlocutory
injunctions. An appeal against exercise of discretion
is said to be an appeal on principle. Appellate Court

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will not reassess the material and seek to reach a

conclusion different from the one reached by the
court below if the one reached by the court was
reasonably possible on the material. The appellate
court would normally not be justified in interfering
with the exercise of discretion under appeal solely
on the ground that if it had considered the matter at
the trial stage it would have come to a contrary
conclusion. If the discretion has been exercised by
the Trial Court reasonably and in a judicial manner
the fact that the appellate court would have taken a
different view may not justify interference with the
trial court's exercise of discretion. After referring to
these principles Gajendragadkar, J. in Printers
(Mysore) Private Ltd. v. Pothan Joseph :

... These principles are well established, but as has

been observed by Viscount Simon in Charles
Osention & Co. v. Johnston the law as to the reversal
by a court of appeal of an order made by a judge
below in the exercise of his discretion is well
established, and any difficulty that arises is due only
to the application of well settled principles in an
individual case.

The appellate judgment does not seem to defer to

this principle.

10. This principal continues to be followed in subsequent

decision, the latest being Mohd. Mehtab Khan & others v.
Khushnuma Ibrahim Khan & Ors, 2013 (9) SCC 221.
11. Testing the facts of the present case on the touchstone of

the principles of law (supra) it would be seen that there is no

perversity in the order impugned nor has the same been

passed arbitrarily or capriciously. The court below rightly

exercised its jurisdiction in passing the order impugned on the

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basis of material which was present before it. The exercise of

jurisdiction cannot be said to be perverse in law.

12. However, during course of arguments counsel for the

defendant-respondent did concede that the defendant had

possession of only 1 Kanal and 8 Marlas of land instead of 1

Kanal and 18 Marlas and that the 10 Marlas was in the

possession of the plaintiff-appellant where the plaintiff had

dumped the construction material. It is, therefore, clarified that

the order dated 21st June, 2021, would apply only in relation to

the land measuring 1 Kanal 8 Marlas out of the land measuring

1 Kanal and 18 Marlas which forms the subject matter of the

suit before the court below.

13. Disposed of accordingly.

(DHIRAJ SINGH THAKUR)

JUDGE
Srinagar
9th, August, 2021.
“Ab. Rashid”

Whether the order is reportable Yes/No.

ABDUL RASHID GANAI

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