ASHMI Vs. GH HASSAN MIR

JUDGEMENT

(1.) THROUGH the currency of this revision petition, the petitioner seeks reversal of the order dated; 30.8.2003 propounded by learned District Judge, Kupwara by virtue of which he has set aside the order dated : 30.3.2002 passed by Sub -Judge, Kupwara in dismissing the application of the plaintiff/respondent for interim relief and allowed the appeal in restraining the respondents from making any construction on the suit land till its finality.

(2.) THE facts drawn form the judgment of the appellate court are necessary for disposal of this petition to be tersely are that the plaintiff and the father of defendants No. 1 to 4 being real brothers, are recorded in the revenue record as co -owners in equal sharer. It is further stated that the land is ancestral property of the parties and happened to be enjoying peaceful possession thereof. It is stated that the father of defendants 1 to 4, being Numbardar and influential person, managed in his name the entry of self cultivation by concerned patwari and the same litigation also started amongst them in taking out proceedings under section 145 Cr. P.C. pertaining to the possession of the land in dispute giving rise to the breach of peace on spot. That on the death of their father, defendants 1 to 4, being their legal heirs, stepped into his shoes. The property, however, remained joint and unpartitioned amongst the co -sharers, plaintiff and defendants 1 to 4, as no partition had taken place. However, defendants 1 to 4 executed an agreement and transferred the land in exchange to defendants 5 to 7 blatantly ignoring the rights of plaintiff over the said land. On the basis of this document, respondents 5 to 7 collected material and started construction. The plaintiff approached the defendants and requested them to acknowledge his right and treat the agreement as ineffective and refrain from interfering into his peaceful possession but without any positive response which persuaded him to commence the suit against the defendants for declaration and perpetual injunction, along with an application for ad interim injunction under O. 39 Rules 1 and 2 C. P. C. The trial court, on filing of the objections by the defendants/non -applicants and after hearing the parties, disallowed the application for interim relief, but, at the same time, permitted the non -applicants to continue the construction on their furnishing an undertaking to the effect that in case they lose in the main suit, they shall demolish and bring down the construction raised by them and shall not claim, any damages from the plaintiff -applicant. Aggrieved by the order passed by the Sub -Judge, Kupwara dated : 30.3.2002, appeal was preferred by the plaintiff -respondent which was allowed by the impugned order in this revision petition and thus became the subject matter of challenge in this revision petition.

(3.) I have heard Mr. Sofi, learned counsel for the petitioner and perused meticulously the order impugned in the revision petition.