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Judgment
The petitioner has invoked Article 227 of the Constitution of India for assailing order dated 15th June, 2026, passed by the Court of learned Principal District Judge, Anantnag (for short “the Appellate Court”), whereby the appeal preferred by the petitioner against the order dated 18th June, 2025, passed by the court of Munsiff, Shangus (for short “the trial court”), has been dismissed. The petitioner has also assailed order dated 18th June, 2025, passed by the trial court in a suit titled “Nazir Ahmad Wagay and another vs. Ab. Rehman Wagay and others”, whereby the parties to the suit have been directed to maintain status quo with regard to nature and user of the suit property i.e. land measuring 03 kanals, 13 marlas and 5 sirsai comprising Survey No.26, 14 marlas in survey no.27 (02 marlas), survey no. 114 (16.5 marlas), survey no. 115 (09 marlas), survey no. 116 (17 marlas), 125 (05 marlas), survey no. 129 (10 marlas) situated at Mouza Kaganhal Tehsil and District Anantnag.
The petitioner has assailed both the orders on the grounds that the trial court as well as the Appellate Court have failed to appreciate that after the initial order directing maintenance of status quo, the parties amicably resolved their disputes through the intervention of respectable members of the locality and consequently acted upon the said settlement and pursuant thereto, respondent No.2 constructed his residential house after availing financial assistance under Indira Awaas Yojana through the concerned Block Development Office. Likewise, the petitioner constructed the first floor over his residential-cum-commercial building and thereafter proceeded to raise further construction upon to the slab level and these subsequent developments have materially altered the factual position and the equities between the parties. It is further contended that the conduct of the respondents attracts the equitable doctrine of waiver, acquiescence and estoppel and a party, who has itself acted contrary to an interim arrangement, cannot subsequently invoke the same order selectively against the opposite party. It is also urged that the respondents have suppressed material facts from the learned trial court and failed to disclose the compromise arrived at between the parties, the construction raised by them pursuant thereto, the financial assistance obtained under the Government housing scheme and the fact that all the parties had openly acted upon the said understanding for a considerable period. It is also contended that the petitioner’s construction has already reached the slab level and unless permission is granted to lay the roof/slab, the unfinished structure shall remain exposed to rain, moisture and adverse weather conditions, resulting in serious structural deterioration and irreparable financial loss.
Heard and perused the record.
Before considering the issues raised by the petitioner in the present petition, it is deemed appropriate to take note of the limited scope of interference in terms of Article 227 of the Constitution of India.
In Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181, the Hon’ble Apex Court has held as under:
“15.Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16.Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed :
“6.The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.”
Taking into consideration the principles, as laid down by the Hon’ble Apex Court as referred above, this court would now deal with the contentions raised by the petitioner.
The record reveals that the respondent Nos.1 and 2 have filed a suit for declaring them to be the owners and entitled to succeed the share left by their uncle Ismail Wagay from the suit land including his residential house situated at Mouza Kaganhall and other estate at Karewa Kaganhall and for partition by metes and bounds with separate possession of the property to which they are entitled, as reflected in the pedigree table mentioned in the plaint including the share of their uncle Ismail Wagay in the suit land, including the land as mentioned above, situated at Mouza Kaganhall Tehsil and District Anantnag, and under Khewat No.112, Khata No.238, Survey No.431 (2 kanal 19 marlas), Khata No.239 Khasra No.430 (1 kanal 10 marlas), Khewat No.113, Khata No.240 Khasra 513 (2 kanals 17 marlas), Khata No.245, Khasra No.423 (19 marlas), Khasra No.484 (2 kanal 13 marlas), Khata No.241 Khasra No.379 (18 marlas), Khasra No.516 (6 marlas), Khata No.242 Khasra No.483 (2 kanal 12 marlas), Khata No.243 Khasra No.493 (1 kanal 4 marlas), Khata No.244 Khasra No.369 (5 kanal 1 marla), Khasra No.494 (1 kanal), Khasra No.380 (1 kanal 11 marlas), Khewat No.192 and 116 situated at Mouza Karewa Kaganhall Tehsil Anantnag. Further prayer was also made by the respondents No.1 and 2 for commanding the defendant No.1 (petitioner herein) to demolish the structures and the plinth raised by him during the pendency of the case in the suit land situated at Kaganhall in violation of status quo order.
It needs to be noted that in terms of order dated 4th July, 2024, amended plaint was filed by the respondents No.1 and 2, whereby the abovementioned reliefs were sought.
The petitioner filed his written statement before the learned trial court thereby objecting the claim of the respondents No.1 and 2 by stating that whole suit property including the property left behind by Ahmad Wagay at Kaganhall and Karewa has been privately partitioned by meets and bounds some five years back at Kanganhal and some seventy years back at Karewa Kaganhall and after effecting private partition, the parties to the suit have occupied their respective shares on spot. It was also stated that after effecting partition of the suit property, the respondent No.2 raised construction of his single storied residential house over his portion of land and has also fenced his share with tin sheets. It was also stated that the parties to the lis were having dispute regarding the property of Mohd. Ismail Wagay, who died issueless and his share from the suit property at Kaganhall i.e. approximately 3 1½ marlas was given to the respondents No.1 and 2 and 3½ marlas were given to the issues of Mst. Fazi, namely, Mohammad Saleem, Gull Mohammad. It was also stated that Mohammad Ismail Wagay had gifted 01 kanal and 16 marlas from Survey No.483 out of his entitlement to the son of plaintiff, namely, Muzaffar Ahmad Wagay in the year 2018 and with respect to the same, gift deed was executed and the remaining 16 marlas of land under Survey No.431 have been handed over to the respondents No.1 and 2 by the petitioner at Karewa Kaganhall, so the question of suit property being joint and unpartitioned till date was a blatant lie. It was also pleaded that in the month of January, 2022, the parties to the lis had entered into a compromise at local level and had sorted out all the controversies between them and the respondent No.2 had raised the construction of second storey of his residential house and the respondent No.1 had also raised construction of single storied residential house in his own share. Likewise, son of petitioner also raised the single storey house up to the slab level, so the question of the suit property being unpartitioned does not arise at all. Accordingly, the petitioner prayed for dismissal of the suit.
The learned trial court, in terms of order dated 13th March, 2019, had directed the defendants in the suit to maintain status quo with regard to the suit land measuring 03 kanals, 13 marlas and 5 sirsai comprising Survey Nos.26 (14 marlas), 27(02 marlas), 114 (16.5 marlas), 115 (09 marlas), 116 (17 marlas), 125(05 marlas), 129 (10 marlas) of Mouza Kanganhall Tehsil and District Anantnag, and in terms of order dated 18th June, 2025, after hearing learned counsel for the parties, the learned trial court disposed of the application for grant of interim relief by directing the parties to the suit to maintain status quo with regard to the suit property, as mentioned above.
It is submitted on behalf of the petitioner that both the courts below failed to appreciate that the dispute between the parties stands settled. The learned trial court while passing impugned order dated 18th June, 2025, has observed that the petitioner i.e. defendant No.1 in the suit, has filed an application under Section 151 of CPC seeking partition of the suit property, which application is in direct contradiction to the stand taken by the defendant No.1/petitioner in the written statement. The trial court further observed that, despite existing status quo orders, the petitioner attempted to alter the character of the suit property by constructing a residential house, leading to institution of contempt proceedings against the petitioner and his son. Additionally, the learned trial court took note of the fact that the pre-amended written statement filed by petitioner/defendant No. 1 contained no mention of construction being undertaken on the suit property. By assigning the above reasons, the learned trial court passed the impugned order dated 18th June, 2025.
The Appellate Court similarly upheld the trial court's observation that disputed questions of co-ownership, inheritance, partition, and unauthorized construction could only be determined through trial. Additionally, it noted that the petitioner’s own partition application reinforced the respondents' position that no prior partition had taken place.
In “Shruti Manav Sharma v. Sunaina Singh”, 2026 INSC 843, the Hon’ble Apex Court has observed as under:
“36.An order on an application for temporary injunction is a discretionary one, and an appellate court does not ordinarily substitute its own discretion for that of the court of first instance, save where the discretion has been exercised arbitrarily, capriciously or perversely, or in ignorance of the settled principles governing the grant or refusal of such relief. The principle laid down in Wander Ltd. & Anr. (supra) which has been approved by subsequent decisions of this Court, has been guiding the appellate courts in the country for decades while exercising the appellate jurisdiction considering the correctness of the discretion and jurisdiction for grant or refusal of interlocutory injunctions. The order of the learned Single Judge, resting as it does on seven specific findings addressing the nature of the original plaintiff’s interest under the Will, the doubt surrounding its finality, the plea of undue influence, and the alter-ego character of the defendant entities, cannot be said to be arbitrary, capricious or perverse, nor to have been passed in ignorance of settled principle. It is, on the contrary, an order squarely anchored in the three conditions that govern the grant of interim injunction. The Division Bench’s substitution of its own appreciation of the Will, of the parties’ conduct, and of the applicability of statutory provisions bearing on the final merits, for the exercise of discretion by the learned Single Judge, was not warranted on the standard it had itself correctly recited, and constitutes precisely the kind of interference that Wander Ltd. & Anr. (supra) forbids.”
Thus, it is evident that the order passed in an application for temporary injunction is a discretionary order and the same cannot be interfered with unless the discretion is perverse or contrary to the settled principles of law. Learned trial court after examining the record has exercised its discretion in directing the parties to maintain status quo and the discretion exercised by the learned trial court in no manner be termed as perverse or contrary to record. After examining the orders impugned, this Court does not find any jurisdictional error committed by the trial court as well as the Appellate Court while passing the impugned orders.
It was next submitted that although the petitioner has raised construction up to the lintel level, he could not lay the lintel, and is prepared to furnish an undertaking to demolish the same should the contesting respondents succeed in the suit. But the fact remains that serious allegations have been levelled against the petitioner and his son that this construction was raised in willful violation of the trial court's status quo orders, leading to initiation of contempt proceedings against them. Where a party stands accused of disobeying court orders, no equity or permission to construct can be extended to him/her. Permission to construct during the pendency of a suit, subject to an undertaking to demolish in case of an adverse decision, is not a matter of absolute rule or right. Each case turns on its own individual facts and circumstances. Consequently, the judgments in case titled “Mst. Zaiba Vs. Ghulam Ahmad Zargar & Ors”, bearing CM (M) No. 292/2022 decided by this court on 30.12.2022 and “Lachman Das Vs. Roop Ram” decided by High Court of Himachal Pradesh on 29.04.2026, relied upon by the learned counsel for the petitioner are distinguishable on facts and inapplicable to the present case.
In view of the above, this Court is of the considered view that both the courts have rightly passed the impugned orders in the facts and circumstances of the present case and the petitioner has not been able to make out a case for exercise of jurisdiction by this Court under Article 227 of the Constitution of India. The present petition is found to be without any merit and the same is accordingly dismissed.