Mohammad Jabbar vs Fayaz Ahmad Khanday & Ors.

Petitioner, Mohammad Jabbar had filed a suit for Permanent Prohibitory Injunction restraining the respondents from interfering in his possession

over a Shopping Complex measuring 80' x 52' constructed over land comprised in Survey Nos. 2474 (04 marlas), 2475 (03 marlas),

4619/2476(12 marlas) 4243/2472 (01 kanal12 marlas), situated at Janglat Mandi, Anantnag, pleading that he was the absolute owner of the

parcels of land over which the Shopping Complex had been constructed and that a cloud on his rights had been cast by the denial of

respondentsdefendants of his title to the property, which is stated to be in his possession since decades, in the Court of Munsiff, Anantnag along

with an application seeking injunctive directions against the respondents from interfering into his possession over the Shopping Complex.

Responding to the suit, respondent nos. 1 to 4 filed their written statement maintaining a Counter Claim as well, seeking declaration to the effect

that they were entitled to reenter Shops bearing Nos. 1,2,8 and 9, which had been reconstructed in the Shopping Complex, besides claiming

restoration of the possession of the Shops and seeking restraint directions against the petitioner and respondent Nos. 5 to 8 from creating any

interest therein.

They had also filed application seeking injunctive directions against the petitioner and respondent nos. 5 to 8 from inducting anyone else as

tenants in the Shops as also a temporary mandatory injunction permitting them to use and occupy the Shops during the pendency of the suit.

The case projected by the respondents to support their stand in the written statement and in the Counter claim was that the petitionerplaintiff had

filed the suit in collusion with respondent Nos. 5 and 6 to deprive the respondentsdefendants of their right of reentry into the reconstructed

Shopping Complex which had been constructed after demolition of the old building where respondent Nos.l to 4 were tenants in the four Shops

and the petitionerplaintiff's son Ghulam MohiudDin and respondent Nos. 5 to 8 had been receiving rent from them, in view of the relationship of

landlord and tenant that existed between the petitioner and respondent Nos. 5 to 8 on one hand and respondent Nos. 1 to 4 on the other hand.

Pleading to be the statutory tenants visavis the Shops in question, they had supported their claim of reentry in the Shops in view of the protection

available to them as tenants under the Jammu and Kashmir Houses and Shops Rent Control Act, 1966.

It was indicated by respondent Nos.l to 4 in their pleading that plaintiff's son and respondent nos. 5 to 8 who had requested them to permit

demolition of the tenanted premises for its reconstruction by the petitioner and respondent nos. 5 to 8, assuring and undertaking that they would

have a right of reentry in the reconstructed Shops as tenants. An agreement too is stated to have been executed by the plaintiff's son and

respondent Nos. 5 to 8 on the one hand and respondent Nos. 1 to 4 on the other hand, in terms whereof, after the demolition of the old building,

the Shops indicated in the site plan annexed with the Agreement had to be given to the respondents on the rent which, too, had been fixed by

mutual agreement of the parties. According to the respondent Nos. 11 to 4, the petitioner had concealed material fact of having entered into the

above referred Agreement of September 28,2005 at the time of filing the suit.

The trial Court of learned Munsiff, Anantnag, after examining the petitioner's suit and respondent Nos. 1 to 4's written statement and Counter

Claim, found a prima facie case in favour of the respondents and accordingly allowing the respondents' application vide his order of August

23,2007 directed the petitionerplaintiff to hand over the possession of Shop Nos. 1,2,8 and 9 to the respondents on their furnishing undertaking

that they would hand over the possession of the Shops to the petitioner in case the petitioner succeeds in the suit.

Aggrieved by the learned Munsiff's order, the petitioner appealed against it before the learned District Judge, Anantnag, who dismissed his

appeal vide his order of October 29,2007.

The petitioner has filed this revision petition seeking setting aside of the orders of the Courts below.

Appearing for the petitioner, his learned counsel submitted that both the Courts below have erred in omitting to protect the petitioner's title and

possession over the Shopping Complex in question over which respondent Nos. 1 to 4 had no enforceable interest and that respondent Nos. 5 to

8 had surrendered their rights in his favour, as indicated in Family Settlement, stated to have been executed by the petitioner and respondent Nos.

5 to 8, on August 08,2005. The interim directions, issued by the learned Munsiff have been urged to be unwarranted by the petitioner's learned

counsel, in the facts and circumstances of the case.

Learned counsel for respondent nos 1 to 4, on the other hand, justifies the orders impugned in the revision petition saying that the petitioner

had been rightly refused the relief by the Courts below, in that, acceptance of the petitioner's prayer to issue injunctive directions against the

respondents, would have resulted in failure of justice, besides depriving respondent nos. 1 to 4 of their right of reentry into the shops which right,

stood acknowledged by their landlords in terms of agreement of September 28,2005 and additionally by the provisions of the Jammu and Kashmir

Houses and Shops Rent Control Act. Issuance of temporary mandatory injunction in favour of the respondents has been justified on the ground

that refusal of the relief would have caused grave injustice to the tenants, who had bonafide believed their landlords and permitted them to demolish

their shops on the clear understanding that they would be put in possession of the shops, which had to come up in the newly constructed shopping

complex, as tenants thereof.

I have considered the submissions of learned counsel for the parties and perused the records.

Possession of respondent Nos. 1 to 4 in the four Shops of the demolished building, as tenants, of the petitioner and respondent Nos. 5 to 8, is

amply demonstrated by the documentary evidence placed on the records of the trial Court. Petitioner's learned counsel, too, had not thus disputed

their tenancy in respect of the aforementioned shops.

The facts on records further reveal that permission to raise construction for demolition of the existing structure, where the shops of respondent

nos. 1 to 4 would exist, had been obtained jointly by the petitioner and respondent Nos. 5 to 8.

In the background of the aforementioned facts, of petitioner's knowledge that respondent Nos. 1 to 4 were his and respondent nos. 5 to 8's

tenants in the Shops, which were required to be demolished for raising the Shopping Complex for which he and respondent Nos. 5 to 8 had

obtained permission to rebuild, by raising a Shopping Complex, petitioner's coming to the Court, without indicating the status of the respondents in

the suit as that of tenants in the erstwhile building, and his maintaining significant silence regarding the Agreement to which his own son, too, was a

signatory, along with respondent Nos. 5 to 8, his cosharers, clearly demonstrates his malafide approach to the Court to seek equitable relief of

injunction against the tenants to deprive them of their tenancy rights in the Shops and the protection of their rights granted to them under the

provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, protection whereof, had been assured to them in terms of the

Agreement executed in September 28,2005.

Both the Courts below were thus right in refusing relief of temporary injunction to the petitioner and granting it in favour of respondent Nos. 1

to 4, in the facts and circumstances of the case finding that they had succeeded in making out a strong prima facie case justifying issuance of interim

injunctive directions in mandatory form, against the petitioner. Refusal of relief of interim mandatory injunction to the tenants and keeping them

away from the shops constructed in the erstwhile building where the shops under their tenancy had existed, until the final conclusion of the suit

would have worked great injustice to the tenants.

For all what has been said above, I do not find any error of law or jurisdiction in the orders passed by the Courts below. No failure of justice,

too, is found to have occasioned in the case justifying interference in revision with the well considered orders passed by the Courts below to

protect the tenancy rights.of respondent Nos. 1 to 4 during the pendency of the petitioner's suit and respondent nos. 1 to 4's counter claim.

Found to be without any merit, this Revision Petition is accordingly, dismissed.