CM(M) No.469/2025 1 | P a g e IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Pronounced on: 14.11.2025 Uploaded on: 17.11.2025 CM(M) No.469/2025 RIYAZ AHMAD ITOO ...PETITIONER/APPELLANT(S) Through: - Mr. Fahdul Haq Malik, Advocate. Vs. MOHAMMAD ZAHID MAKHDOOMI & ORS. ...RESPONDENT(S) Through: - Mr. Jahangir Iqbal Ganai, Sr. Advocate, with Mr. Owais Ahmad, Advocate. CORAM: HON’BLE Mr. SANJAY DHAR, JUDGE JUDGMENT(ORAL) 1) The petitioners, through the medium of present petition, have challenged order dated 30.07.2025 passed by the learned Sub Judge, Kulgam (hereinafter referred to as <the trial court=), as upheld by the learned Principal District Judge, Kulgam (hereinafter referred to as <the appellate court=) vide impugned order dated 03.09.2025. 2) It appears that the appellant (hereinafter referred to as <the appellant=) has filed a suit before the learned trial court seeking a declaration that he be declared as owner of the land measuring 04 kanals falling under Survey No.435/112-min situated at Village Gopalpora Tehsil & District Kulgam and that sale deed dated 15.09.2017 executed by respondent No.3 (hereinafter referred to as <defendant No.3=) in favour of respondents No.1 and 2 (hereinafter referred to as <the Sr. No.1 Regular List CM(M) No.469/2025 2 | P a g e contesting defendants=) as null, void and ineffective. A decree for permanent injunction restraining the contesting defendants from causing any sort of interference in the suit property, has also been sought. Along with the suit, the plaintiff filed an application under Order 39 Rules 1 and 2 of CPC seeking a direction upon the contesting defendants that they should not interfere in his possession over the suit land and that they should not alienate the same and change its character. 3) Briefly put, case of the plaintiff before the trial court was that he had purchased the suit land from defendant No.3 for a sale consideration of Rs.60.00 lacs in the month of August, 2017. It has been pleaded that the plaintiff and his family members planted fruit bearing trees in the aforesaid land and converted it into an orchard. It was the case of the plaintiff that he is taking the benefit and usufruct of the suit land to the exclusion of any other person. The plaintiff has given details relating to the payments made by him to defendant No.3 vide various cheques issued by him from time to time in the months of August and September, 2017. 4) According to the plaintiff, he was having good relations with defendant No.1 on account of the fact that he was maintaining a Cash Credit Bank Account in the bank, of which defendant No.1 happened to be the branch head. On account of friendly relations between the plaintiff and defendant No.1, CM(M) No.469/2025 3 | P a g e the plaintiff made defendatnNo.3 to execute the sale deed in respect of the suit land in favour of the contesting defendants and the impugned sale deed was executed on 15.09.2017 which was registered before the Sub Registrar on 16.09.2017. The plaintiff has given the details of the facts which led to the development of friendly relations between the plaintiff and defendant No.1 and has claimed that defendant No.1, requested him to execute the sale deed in respect of the suit land, which is agricultural land, in the name of contesting defendants so as to save the income tax. 5) The plaintiff challenged the impugned sale deed on the grounds that possession of the suit land was never delivered to the contesting defendants and that he is in exclusive possession and enjoyment of the same. It was further contended that the contesting defendants have managed a forged and fraudulent sale deed in their favour though they have no interest in the property in question. It has also been contended that the sale deed has been executed without any consideration having been paid by the contesting defendants and, therefore, the same is null and void. 6) The contesting defendants contested the suit by filing their written statement as well as their counter claim. In their written statement, the contesting defendants claimed that the plaintiff had only negotiated deal with regard to the land in question with defendant No. 3. It has been claimed that CM(M) No.469/2025 4 | P a g e defendant No.1 transferred the amount of sale consideration in the bank account of the plaintiff and his wife, and thereafter the plaintiff transferred the said amount to defendant No. 3, pursuant whereto sale deed was executed by defendant No.3 in favour of contesting defendants. It has been submitted that the sale deed is witnessed by the plaintiff and, as such, he cannot contend that the sale deed has been executed fraudulently. It has also been contended that the orchard was already existing on the suit land and the defendants No.1 and 2, having regard to cordial relations between the parties, had only allowed the plaintiff to look after the orchard as defendant No.1 was residing away from the suit land. It has been contended that the contesting defendants are in possession of the suit land and, as such, no injunction can be granted against them. The defendants, by way of counterclaim, have sought an injunction against the plaintiff for restraining him from causing any sort of interference in their possession over the suit land. 7) The learned trial court, after hearing the parties and analyzing the pleadings and documents filed by them, passed reasoned order dated 30.07.2025, thereby dismissing the application of the plaintiff under Order 39 Rules 1 and 2 of the CPC and allowing the similar application filed by the contesting defendants. The aforesaid order came to be challenged by the plaintiff by way of an appeal before the Appellate Court. Vide CM(M) No.469/2025 5 | P a g e impugned Order dated 30.07.2025, the learned Appellate Court upheld the order of the learned trial court and dismissed the appeal. 8) The petitioner has challenged the orders impugned on the grounds that the same are patently erroneous, perverse, and contrary to the settled principles of law. It has been further contended that the Courts below have committed a jurisdictional error by ignoring the admitted factual position that the plaintiff is in actual physical possession of the suit property. It has been contended that the plaintiff has a strong prima facie case evidenced by the admission of the contesting defendant, as such, an interim injunction was required to be passed in his favour. It has been further contended that if the impugned orders are allowed to stand, the suit of the plaintiff will become infructuous, thereby causing manifest miscarriage of justice. 9) Issue notice to the respondents. Mr. Owais, Advocate, who is on caveat, accepts notice on behalf of the contesting defendants/respondents No.1 and 2 10) I have heard learned counsel for the parties and perused record of the case. 11) The petitioner/plaintiff has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution. Before proceeding to deal with the merits of the contentions raised by the petitioner/plaintiff, it would be apt to understand CM(M) No.469/2025 6 | P a g e the scope of jurisdiction under Article 227 of the Constitution. It is a settled law that the High Court, while exercising its supervisory jurisdiction, has not to act as a trial or an appellate court. The object of exercising supervisory jurisdiction is to prevent miscarriage of justice and to keep the lower courts within the bounds of their authorities. It is only if the court below has committed a jurisdictional error or a grave dereliction of duty or flagrant abuse of principles of law or justice that the High Court would exercise its supervisory jurisdiction. Every mistake of fact or law cannot be corrected by the High Court while exercising its powers under Article 227 of the Constitution. 12) With the aforesaid legal position in mind, let us now go into the merits of the contentions raised by the petitioner. The main contention of the petitioner is that the contesting defendants have, in their pleadings, admitted that he is in possession of the suit land, which fact has been ignored by both the courts below. In this regard, learned counsel for the petitioner has particularly referred to the pleadings of the contesting defendants in para (2) of the written statement, in which it has been averred by them that the plaintiff, with whom they had family ties, was requested to look after the orchard on their behalf. On the basis of this assertion of the contesting defendants, it is being claimed that the contesting defendants CM(M) No.469/2025 7 | P a g e have admitted that the suit property was in in possession of the plaintiff. 13) I am afraid the aforesaid contention of the petitioner/plaintiff cannot be accepted. What the contesting defendants have stated is that the plaintiff was asked to look after the orchard on their behalf, meaning thereby that the contesting defendants claim that the possession of the plaintiff over the suit land was in his capacity as a caretaker. It is a settled law that a caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The possession of a caretaker is on behalf of the owner and not in his individual capacity. Legal position in this behalf has been settled by the Supreme Court in the case of Maria Margarida Sequeria Fernandes and Others vs. Erasmo Jack de Sequeria(Dead) through L.Rs., AIR 2012 SC 1727. Therefore, it does not lie in the mouth of petitioner/plaintiff to take advantage of the assertion of the contesting defendants that they had allowed him to look after the suit property and claim that he was in possession of the suit property in his own right. 14) Apart from the above, the plaintiff claims that he has purchased the property in question by incurring the expenditure out of his own funds in the name of contesting defendants. The contesting defendants have given details of the banking transactions executed by defendant No.1, whereby CM(M) No.469/2025 8 | P a g e he has transferred the amount of sale consideration in the account of petitioner/plaintiff who immediately thereafter transferred the said amount to the account of vendor, defendant No.3. No explanation has been tendered by the plaintiff in his pleadings as to in what capacity he had received these amounts from defendant No.1, that too around the time when the sale deed was executed by defendant No.3 in favour of defendant No.1. Prima facie it shows that the stand of the plaintiff is not genuine. 15) For the foregoing reasons, I do not find any error, much less a grave error, having been committed either by the trial court or by the appellate court in coming to the conclusion that the plaintiff does not have a prima facie case in his favour. In fact, the learned trial court has minutely analyzed the pleadings of the parties while reaching the said conclusion. The impugned order passed by the learned trial court, as upheld by the learned appellate court, does not call for any interference from this Court in exercise of its supervisory jurisdiction. 16) Viewed thus, the petition lacks merit and is dismissed accordingly along with connected CM(S). (SANJAY DHAR) JUDGE Srinagar 14.11.2025 <Bhat Altaf= Whether the order is reportable: Yes/No