ALI HAJJAM Vs. AB REHMAN BULAND
LAWS(J&K)-1982-5-9
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 31,1982

Ali Hajjam Appellant
VERSUS
Ab Rehman Buland Respondents

JUDGEMENT

- (1.) THE dispute in this case relates to a piece of land measuring one Kanal and six marlas. The parties have filed cross cases. Abdul Rehman Buland, (hereinafter called the "first party") has filed a suit for declaration and injunction. His case is that the entire land is in his possession The trial court granted exparte ad -interim injunction in his favour, The defendant, Ali Hajjam, (herein after called the "second party") applied for the vacation of the said order and simultaneously filed a suit for possession and injunction. His case was that the first party was in possession of a portion of the disputed Property (land) measuring four Marlas but the remaining portion of the land measuring one Kanal and 2 Marlas continued to be in his possession, On that application the trial court directed that the parties shall maintain status quo. Ultimately the trial court considered the matter concerning the ad -interim relief in both the cases together and passed an order on 6 -9 -1980, directing that the first party shall not interfere with the second partys possession of the portion of land measuring one Kanal and two marlas and maintained the order of temporary injunction in favour of the first party in so far as the portion of land measuring 4 Marlas was concerned. Against this order the first party went in appeal to the District Judge. The District Judge has passed a very peculiar order. He discussed the facts and circumstances of the case as also the arguments advanced before him and then passed following order. "After considering the pros and cons of these two cases, the order under appeal is set aside and the parties are directed to maintain status quo regarding the suit property which means that the suit property will not be put to any other use than the one it was being put on 5th of August, 1979, the date of the institution of the suit by respondents Ali Hajjam and ors against the appellant Abdul Rehman Buland. The appeal is partly accepted and partly rejected. It is accepted to the extent that injunction passed by the lower court is set aside and it is rejected to the extent that no injunction is granted in favour of the appellant and only an order of status quo is passed."
(2.) I must confess, I am not able to understand the order. Even the counsel for the respondent was frank and fair enough to concede that the order is not free from infirmity. The trial court had Constitution of India Art 22 and Public Safety Act (J&K) 1970: - given a positive finding, though only prima -facie, and also considered the balance of convenience, and, consequently it was incumbent upon the lower appellate court to come to a definite finding and pass a categoric order one way or the other. Unfortunately, the lower appellate court has not been able to deal with the matter in the way it should have done. The judgment is prelific but lacks the core. What lower appellate court has done is that short of making up its mind it has said everything and passed a very peculiar order. The order of status quo can be interpreted by a party in any way it likes and as a matter of fact such an order would be justified only after the court has come to a finding even though it may be prima facie, as regards the state of things prevailing on the spot Here the lower appellate court has not directed itself to determination of such state of things and in the circumstances, the order cannot be sustained in law. But let me fasten to add that the lower appellate court should not consider itself to be bound by the findings arrived at by the trial court. The lower appellate court can come to a different finding if the facts and circumstances of the case so demand. What I want to convey is that it should come to a certain finding and then pass appropriate order in light of such findings.
(3.) THE result, therefore, is that the revision succeeds and is allowed. The order of the District Judge dated 24 -11 -1980 is set aside and the District Judge is directed to pass fresh orders in the light of the observations made above. The parties are directed to appear before the District Judge. Anantnag on 19 June, 1982.;


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