Suresh Kumar Gandotra vs Poonam Devi and ors.

In this writ petition under section 104 of the Constitution of State of Jammu and Kashmir, the petitioner inter alia has assailed the validity of

order dated 05.09.2017, by which application for temporary injunction filed by the petitioner has been dismissed. The petitioner has also assailed

the validity of order dated 25.09.2017, by which order dated 05.09.2017 passed by the trial court has been upheld in an appeal.

The facts giving rise to the filing of this writ petition briefly stated are that the petitioner has filed a suit for declaration and permanent prohibitory

injunction against the respondents. In the suit the petitioner has claimed that he has purchased the suit land prior in time and is in possession of the

same. Subsequently, the suit land was sold on the basis of sale deed dated 31.12.2009 executed by respondent No. 1 in favour of the respondent

No. 4 through her power of attorney holder, respondent No. 2, which was registered on 01.01.2012. The respondent No. 4 claims to be in

possession of the suit property on the basis of sale deed executed on 31.12.2009 and registered on 01.01.2012 in respect of land measuring 5 ?

marlas comprising in Khasra No. 262 min/159, Khata No. 85, which forms the subject matter of the suit. The petitioner has also sought the relief

of permanent injunction restraining the respondents from raising any sort of construction thereby changing the dimension of the land or creating any

third party right over the land. Alongside the suit, an application for temporary injunction was also filed by the petitioner. The respondent No. 3

filed reply and contested the suit. In the reply, respondent No. 3 has contended that he has purchased the land for a valuable consideration amount

through a sale deed, which was registered in his favour on 01.01.2012, as such he is in possession of the same. It is submitted that on the basis of

the aforesaid sale deed executed in favour of the respondent No. 3, mutation has already been attested in the revenue records.

Vide order dated 05.09.2017, the trial court has inter alia held that the sale deed has been registered before the Court of Sub Registrar, Jammu

in favour of respondent No. 3 and the same has also been mutated in favour of respondent No. 3 by virtue of mutation No. 1568/. Accordingly,

prayer for temporary injunction was rejected and the said order was upheld by the Lower Appellate Court.

Learned counsel for the petitioner submitted that both the courts below ought to have appreciated that the petitioner is in possession of the suit

land on the basis that he has purchased the same prior in time and has raised plinth and installed Iron Gate in it. On the other hand, learned counsel

for the respondent No. 3 submitted that respondent No. 3 is in possession of the land in question on the basis of sale deed executed on

01.01.2012 and mutation has also been attested in his favour. It is also submitted that both the Courts below on meticulous appreciation of

evidence available on record has rejected the application preferred by the petitioner, which does not call for any interference by this Court under

the supervisory jurisdiction.

I have considered the submissions made by the learned counsel for the parties and have perused the record. Both the Courts below on the basis

of meticulous appreciation of evidence available on record have held that prima facie the sale deed has been executed in favour of the respondent

No. 3 and he is in possession of the suit land. The trial court as well as the lower appellate court has rightly recorded the findings that the plaintiff is

not in possession of the same. However, by no stretch of imagination the findings recorded by the trial court are said to be perverse or based on

no evidence. The aforesaid orders neither suffer for jurisdictional infirmity nor any error apparent on the fact of the record. Reference in this

connection is made to the decision of the Supreme Court in the case of Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8

SCC 239. In the instant case, order has been passed on the basis of meticulous appreciation of evidence, which does not suffer from jurisdictional

infirmity calling interference by this Court under section 104 of the Constitution of the State of the Jammu and Kashmir.

In view of the preceding analysis, I do not any merit in this writ petition, the same fails and is hereby dismissed.