Mohammad Ashraf And Others vs Samad Wani

Vinod Chatterji Koul, J

In revision petition, bearing CR no.25/2017,setting-aside of the order dated 05.05.2017, passed by the Munsiff Dangiwacha (for short “Trial Court”), whereby the Trial Court, while deciding the issues 1, 2 & 9 in favour of the plaintiffs/respondents, directed them to produce evidence, is sought for, precisely on the ground that the finding returned by the Trial Court on these issues is without application of mind and without considering the facts pleaded and law submitted and, thus, passing of order impugned has caused grave miscarriage of justice.

The order impugned has been passed by the Trial Court in a suit,filed by respondent – plaintiff, bearing File no.3 instituted on 09.04.2001, seekinggrant of a decree in the nature of mandatory injunction directing the petitioners– defendants, to demolish the illegal construction raised by them. The said relief has been claimed by the plaintiff/respondent in the suit on the ground that a compromise was arrived at between him and the father of the defendants in earlier suit in the Court of Sub-Judge, Sopore, and on the basis of said compromise, the suit was disposed of. In terms of compromise entered into between the respondent herein and the father of the petitioners, the suit land measuring 02 marlas under survey no.185 min is stated to have been given by him to the father of defendants against consideration of Rs.700/- andthe defendants had reconstructed their house on the said piece of land with a condition that they would construct roof of the house only towards northern/southern side and would also construct bathroom and latrine towards the northern/southern side. In case defendant-Ghulam Rasool, father of the defendants, sells his house to anybody, he would have to demolish bathroom as well as latrine and was also bound to keep four feet fire gap towards the eastern side of his house. Ghulam RasoolPeerzada died in the year 1997.Defendants, who are his sons, in violation of the said compromise,are stated to have been constructing their house in such a manner that they laid roof of their house towards east/west side, as a result of which roof of the house of the defendants falls on the residential house of the plaintiff. So, in brief,the contention of plaintiff/respondent on the basis of which he has claimed relief for mandatory injunction against the defendants/ petitioners is that in violation of the compromise entered into between him and the father of the defendants, they are constructing their house and the roof is being constructed in violation of the compromise.

The defendants/petitioners, in response to the suit,raised the issue of maintainability of the suit on the ground that instead of filing the suit, the plaintiff/respondent ought to have sought execution of the decree; thus, first ground taken up by them is that suit is not maintainable as plaintiff/respondent ought to have filed execution petition. The defendants/petitioners have also in their written statement raised defence that plaintiff had no right over the suit land measuring 02 marlas.

The Trial Court, on considering the pleadings of the parties, framed various issues. Issue nos.1, 2 & 9 were treated as preliminary issues and decided vide order impugned. An observation has been made by the Trial Court in the impugned order that there is no decree framed in the earlier suit as it has been disposed of on the basis of compromise, and resultantly in absence of any decree, the petitioners could not seek execution of the same;even the petitioners/defendants have failed to establish that any decree was passed by SubJudge in the previous suit in order to say that in view of the decree, the subsequent suit would not lie and only execution ought to have been filed. In terms of the compromise, 02 marlas of land was given by the plaintiff/respondent herein to the father of the petitioners/defendants against consideration of Rs.700/-. The Trial Court has decided the issue nos.1, 2 & 9 in favour of the plaintiff, which were with regard to maintainability,jurisdiction and valuation of the suit. As the earlier suit was compromised and as per the said compromise, 02 marlas of land was given to the father of the defendants/petitioners, who was to construct house, thereby limitations with regard to roof, which according to plaintiff/respondent was to be only on the northern/southern side, the plaintiff/respondent pleads before the Trial Court that defendants/petitioners while raising construction have constructed the roof in such a manner that it falls on the house of respondent/plaintiff, therefore, has sought a relief against the petitioners/defendants. He has a right to file Suit for mandatory injunction to demolish the structure so raised. The objection of the petitioners/defendants that execution ought to havebeen filed instead of Suit seeking mandatory injunction is without any basis. There is no decree passed which is sought to be executed. The suit has been filed on the basisof compromise of the parties entered into between them in the Court of Sub-Judge, Sopore, and it is on the basis of that suit, the parties had agreed regarding the manner of raising construction. When such a construction is being raised in violation of terms which they have mutually agreed, the respondent/plaintiff hasa cause to file a suit which he has rightly done in this case.

The Trial Court has also held that the suit has been properly valued in terms of provisions of Section 7 of the Court Fee Act;therefore, there is no illegality committed by the Trial Court in passing the order impugned. The Trial Court has rightly decided all these issues in favour of the respondent/plaintiff. Even otherwise this Civil Revision filed against the order impugned is not maintainable in view of the express provision contained in Section 115 of CPC because the order impugned does not finally decide the case.

For the foregoing reasons, I do not find any merit in the instant revision petition, being CR no.25/2017, and the same is, accordingly, dismissed. Interim direction, if any, shall stand vacated

CR No. 12/2018:

In this revision petition, challenge is thrown to the order dated 26.12.20217, passed by Munsiff Dangiwacha (for short “Trial Court”), whereby two applications filed by the defendants seeking dismissal of the suits, i.e., suit no.03/2001 and suit no. 157/2001,pending before the Trial Court was sought on the ground that same have become infructuous, by invoking the provisions of Section 115 of CPC as also in view of the judgment of the Supreme Court in Shipping Corporation of India Ltd. v. Machado Brothers, reported in AIR 2004 SC 2093. The ground on which suits are sought to be dismissed is that plaintiff/respondent had out of his own free will dismantled his house and returned the land measuring 06 Marlas bearing Khasra nos. 480/185 to the defendants/petitioners and they are enjoying the possession and ownership of 08 Marlas of land;therefore, on dismantling the house, the suit has become infructuous and is liable to be dismissed. The contention raised by defendants/petitionersseeking dismissal of the suit, was contested by plaintiff/respondent. He denied to have dismantled the house or handed over possession to defendants/petitioners. The consistent plea of the plaintiff/respondent is that only 02 Marlas of land was given to father of petitioners/defendants that too against consideration of Rs. 700/-. It is true that a suit can be dismissed, if due to subsequent event same becomes infructuous as has been observed and held in Shipping Corporation of India Ltd (surpa).

The question now would be as to whether on the basis of plea raised by the petitioners/defendants, which is denied by the respondent/plaintiff, it could be said that the suit has become infructuous. What is stated by the petitioners/defendants in the applications is that the suit has become infructuous as the plaintiff/respondent has dismantled the house and handed over the possession of 06 marlas land to them and the said plea is being denied by the plaintiff/respondent. So, in view of such a position, it cannot be said that the suit has become infructuous. Whether or not the structure has been dismantled by the plaintiff/respondent or possession delivered to the defendants/petitioners would be the matter of evidence, which on mere submission of the defendants/petitioners cannot be said to have been established and on this contention the suit cannot be said to have become infructuous. Learned Trial Court, while considering both the applications, has considered the same in detail and passed a well-reasoned order, impugned herein, which does not, as such, call for any interference and as a corollary thereof, revision petition is liable to be dismissed.

Viewed in the above context, I do not find any merit in the instant revision petition and the same is, accordingly, dismissed with connected CM(s). Interim direction, if any, shall stand vacated.

Copy be sent down along with the record.