Ramesh Chander Sehgal vs Suresh Abrol And Ors

Wasim Sadiq Nargal, J

The present Civil 1st Misc. Appeal is filed by the appellant against the order dated 18.05.2018 passed by the Court of 2nd Additional District Judge, Jammu in File No. 56/Misc. instituted on 23.04.2018 in File No. 41/Civil, whereby the application filed by respondent Nos. 1 & 2 for grant of interim relief has been allowed.

Brief facts giving rise to the filing of the present appeal are that the appellant has filed a civil suit for possession of two rooms measuring 12’×9’ and 12’×12’ sq.ft each along with a bathroom measuring 6’×6’ sq.ft. on the first floor of the house of the plaintiff (appellant herein) which are in illegal possession of the defendants situated at plot No. 126-A Near Geeta Mandir Bakshi Nagar, Tehsil and District Jammu along with the same against the proforma defendants (respondents herein) with respect to the accommodation in possession of the proforma respondent Nos. 3 to 6 with a consequential relief of permanent prohibitory injunction restraining the defendants from entering upon the rest of the portion of the house of the plaintiff which is absolutely in the exclusive possession of the plaintiff (appellant herein) and also from changing the nature of the suit property i.e. the portion of the house which is in illegal possession of the defendants. It is the case of the appellant that the plot No. 126-A was allotted to Smt. Ishro Devi maternal grandmother of the appellant whereas the plot No. 125 was allotted in favour of the father of the appellant. It is also submitted that the said Ishro Devi had adopted the appellant and after her demise, the said plot devolved exclusively upon the appellant in exclusion to all the defendants in the suit.

The further stand of the appellant is that the respondent No. 1 being the sister of the appellant was permitted to stay in the aforesaid accommodation only by way of permissive possession but with the passage of time, out of share greed to grab the said portion of the property/house, she resorted to the highly low level tactics of creating nuisance for the family of the appellant and refused to vacate the same.

The short submission which has been advanced by learned counsel for the appellant is that the Court below has fallen in legal error as well as on facts of the suit by passing order in File No. 56/Misc. filed by the defendant Nos. 1 & 2 (respondent Nos. 1 & 2 herein) as in their suit filed by the plaintiff, the defendants by no stretch of imagination can claim any such temporary relief on the basis of the claim of adverse possession without claiming any title based on the adverse possession and grant of any such relief in favour of such defendants (respondents herein). Further case of the appellants in the present appeal is that the respondent Nos. 1 & 2 have failed to make out a prima-facie case in their favour and the balance of convenience and equity also does not lie in their favour and accordingly, it has been prayed that the impugned order dated 18.05.2018 passed in File No. 41/Civil will promote the multiplicity of litigation which is bound to visit the plaintiff with adverse consequences. By virtue of the order impugned passed by the 2nd Additional District Judge, Jammu in File No. 41/Civil, the Court below have disposed of both the applications with a direction to the defendants not to change the nature of the suit house in their possession with a further direction that the defendants shall not cause any interference in the remaining portion of the house which is in possession of the plaintiff (appellant herein) and the appellant was also directed not to interfere in the possession of the defendants over the portion of the suit house with regard to which, the decree has been sought by him. The aforesaid directions passed by the 2nd Additional District Judge, Jammu was directed to be remain in operation till the disposal of the suit or further orders, whichever is earlier.

This Court vide order dated 16.09.2022 has been pleased to stay the proceedings before the 2nd Additional District Judge, Jammu till next date of hearing and pursuant thereto, the aforesaid directions were modified by virtue of order dated 05.12.2022 and the proceedings in the suit pending before the 2 nd Additional District Judge, Jammu were directed to continue.

Learned counsel on behalf of the petitioner fairly concedes that the proceedings in the aforesaid suit are continuing before the 2nd Additional District Judge, Jammu and the issues which are pending adjudication in the aforesaid suit ought to be adjudicated by the Court below i.e. 2nd Additional District Judge, Jammu, wherein the petitioner (plaintiff therein) has sought the following reliefs:-

“Suit for possession of two rooms of the measurement 12’×9’ and 12’×12’ sq.ft each along with a bathroom measuring 6’×6’ sq.ft on the first floor of the house of plaintiff which are in illegal possession of defendant No. 1.

AND also for possession of three rooms of the measurement 12’×12’, 10’×12’ and 10’×11’ sqft respectively each along with a bathroom measuring 8’×4’ sqft on the ground floor of the house of plaintiff which is build upon the land measuring 7 marlas situated at plot no. 126-A, Near Geeta mandir Bakshi Nagar Tehsil and District, Jammu by passing a decree to that effect AND

Further for consequential relief of permanent prohibitory injunction restraining the defendants from entering upon the rest portion of the house of the plaintiff which is absolutely in the exclusive possession of the plaintiff and also from changing the nature of the suit property i.e. the portion of house which is in illegal possession of the defendants.

AND

Any other relief to which the plaintiff is found entitled may also be granted in favour of the plaintiff as against the defendants.

AND

File No. 186/Misc

Application of plaintiff under Order 39 Rule 1, 2 & 3 read with section 151 CPC for grant of temporary injunction. AND

File No. 56/Misc

Date of Institution: 23.04.2018

Application of defendant for restraining the plaintiff not to interfere in the suit house which is in peaceful possession of the defendant No. 1.”

In view of the above, the plaintiff (appellant herein), seeks withdrawal of the present appeal with a view to appear before the Court below in the aforesaid suit where the rights of the plaintiff and defendants are required to be adjudicated. Even otherwise also, the order passed by this Court staying the proceedings before the Court below dated 16.09.2022 has since been modified vide order dated 05.12.2022 by directing that the proceedings in the suit pending before the 2nd Additional District Judge, Jammu can continue and thus, there is no legal impediment for the Court below to proceed with the aforesaid suit with a view to adjudicate the rights of both the parties.

In the light of the aforesaid statement and the stand taken by the appellant, the present appeal is dismissed as withdrawn along with connected application(s).

The parties are directed to appear before the Court below i.e. 2nd Additional District Judge, Jammu in File No. 41/Civil on 22.05.2023 and it is expected that the trial Court will proceed expeditiously in accordance with law by adjudicating the rights of both the parties which are pending in the aforesaid suit.