Item No. 10 Suppl List-4 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR FAO No.18/2025 CM No.3516/2025 Caveat No.1331/2025 SOFI MOHD YOUSUF …Petitioner(s) Through: Mr. Javed Ahamd Parray, Adv. Vs. MOHAMMAD SALEEM DAR & ORS. …Respondent(s) Through: Mr. N. H. Shah, Sr. Advocate, with Ms. Suwaiba, Advocate. CORAM:HON’BLE MR. JUSTICE SANJAY DHAR,JUDGE ORDER(ORAL) 06.06.2025 1. The appellant/plaintiff has assailed order dated 17.05.2025 passed by the learned Additional District Judge, Baramulla, (hereinafter referred to as “the trial court”), whereby his application under Order 39 Rule 1 and 2 of CPC has been dismissed. 2. Issue notice to the respondents. Ms. Suwaiba, Advocate, who is on caveat, accepts notice on behalf of the respondents. Caveat stands discharges. 3. Heard and considered. 4. The appellant/plaintiff has filed a suit against the respondents (hereinafter referred to as “the defendants”) before the trial court seeking 2 specific performance of agreement to sell dated 06.04.2022 with a relief of perpetual injunction restraining the defendants from interfering with his possession over the land measuring 05 kanals 13 marlas falling under Khasra No.262-min, 263-min, 259-min and 261-min situated at Mouza Pattan. 5. As per case of the plaintiff, he had entered into an agreement to sell with predecessor-in-interest of defendants No.1 and 2 (Late Ali Mohd. Dar) in respect of the suit land and the amount of sale consideration was fixed as Rs.1,52,55000/. It has been pleaded that the plaintiff entered into transaction with Late Ali Mohd. Dar in his capacity as land broker with the stipulation that the documentation with respect to the transaction would be executed by defendants No.3 and 4 on demand. It is further case of the plaintiff that he had also agreed to sell land measuring 01 kanal 18 marlas and 06 sirsaies falling under Survey No.382/32-min in Mouza Kanihama Magam to Late Ali Mohd. Dar against a sale consideration of Rs.1,54,66,666/ @Rs.80.00 lacs per kanal and had further agreed that the balance amount of Rs.2,11000/ would be paid at the time of execution of the conveyance deed. According to the plaintiff, Late Ali Mohd. Dar handed over possession of the suit land to the plaintiff and he sold the land measuring 01 kanal, 18 marlas and 06 sirsaies to one Jan Mohammad of Srinagar. It has been pleaded that after taking over possession of the suit land, the plaintiff has fenced the same with tin sheets. 3 6. It is further pleaded that Late Ali Mohd. Dar was approached by the plaintiff for execution of sale deed and its registration and in this regard revenue documents in respect of the suit land were also obtained. However, defendant No.4, who is the owner of the land in question, did not turn up before the office of SDM, Pattan, for registration of the sale deed, whereafter the plaintiff approached Late Ali Mohd. Dar but the presence of defendant No.4 could not be procured before the concerned authority for registration of the sale deed. 7. It has been further submitted by the plaintiff that despite performing his part of the agreement to sell and sale of land by Late Ali Mohd. Dar to Jan Mohammad, the defendants have failed to perform their part of the agreement to sell. According to the plaintiff, he has already handed over the land in exchange of sale consideration amount and has already taken over possession of the suit land but the defendants have failed to execute the sale deed. It is pertinent to mention here that Late Ali Mohd. Dar had died even before the filing of the suit. 8. It seems that defendants No.1 and 2, in their written statement, took a stand that their predecessor-in-interest was neither owner nor possessor of the suit land, as such, there was no occasion for him to enter into agreement to sell in respect of the suit property in favour of the plaintiff. They have denied that there was any transaction between their predecessor-in-interest and the plaintiff. 9. Defendants No.3 and 4, in their separate written statement, have contended that they are owners in possession of the suit land which they 4 have purchased by virtue of sale deeds executed and registered in the year 2020. They have further pleaded that Late Ali Mohd. Dar had no authority to enter into any sale transaction in respect of the suit land on their behalf and that they had neither executed the agreement to sell nor had they executed any Power of Attorney in favour of the plaintiff. 10. It appears that initially an exparte interim injunction came to be passed in favour of the plaintiff, in terms whereof the defendants were restrained from dispossessing the plaintiff from the suit land. However, after the filing of the written statements by the defendants, the learned trial court proceeded to finally decide the application under Order 39 Rule 1 and 2 CPC by virtue of the impugned order, whereby the said application has been dismissed. While dismissing the application of the plaintiff, the learned trial court came to the conclusion that the plaintiff has failed to establish a prima facie case in his favour. 11. The appellant has challenged the impugned order on the grounds that the learned trial court has not appreciated the facts and the law in its correct perspective. It has been contended that the learned trial court has, at the interim stage, commented upon the validity and admissibility of agreement to sell dated 06.04.2022, which is contrary to the legal position. It has been contended that defendants No.3 and 4 had, by their conduct, conceded to the authority of the predecessor-in-interest of defendants No.1 and 2 to enter into an agreement to sell in respect of the suit land. 5 12. If we have a look at the covenants of the agreement to sell dated 06.04.2022, which is sought to be enforced by the plaintiff against the defendants, it is nowhere provided in the said agreement that the predecessor-in-interest of defendants No.1 and 2 (Shri Ali Mohammad Dar) was having any authority whatsoever to execute the said document on behalf of the real owners of the property viz. defendants No.3 and 4. The agreement does not contain any recital to this effect. Admittedly, the property in question belongs to defendants No.3 and 4, therefore, the agreement to sell dated 06.04.2022, alleged to have been executed by Shri Ali Mohammad Dar in favour of the plaintiff, appears to be non-est in the eyes of law so far as the transaction regarding the suit property is concerned. 13. The contention of the plaintiff that defendants No.3 and 4 had acquiesced by their conduct to the action of Shri Ali Mohammad Dar is not borne out from the record. Neither the covenants of the agreement to sell indicate anything to this effect nor the written statement filed by defendants No.3 and 4 leads to any such inference. Therefore, the very basis of claim of the plaintiff with regard to his ownership and possession of the suit property is legally not tenable. It is inconceivable in law to allow a litigant to sue the real owner of a property for specific performance of an agreement which has not been executed by the real owner. The learned trial court has, therefore, rightly concluded that there is no prima facie case in favour of the plaintiff. 6 14. So far as possession of the plaintiff over the suit land is concerned, he has not placed on record any document, except the agreement to sell dated 06.04.2022, that would prima facie show that he is in possession of the suit property. The agreement to sell, as already stated, appears to be just a piece of paper without any legal sanctity and on its basis, the plaintiff cannot claim to have any right to be in possession of the suit property even if it is assumed that he is in possession of the said property. 15. The scope of appellate jurisdiction in respect of an order of interim injunction is limited. It is only if the order of the trial court is arbitrary, capricious or perverse that the appellate court would interfere in the discretion exercised by the trial court. The appellate court cannot substitute its own view in place of the view expressed by the trial court, if the view taken by the trial court is plausible and reasonable. In the instant case, the view taken by the learned trial court is absolutely in accordance with the law and, as such, the same does not call for any interference by this Court in its appellate jurisdiction. 16. For the foregoing reasons, I do not find any merit in the appeal. The same is dismissed accordingly. 17. A copy of this order be sent to the trial court for information. (Sanjay Dhar) Judge Srinagar 06.06.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No