HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CM(M) No. 36/2023 CM No. 1474/2023 Nirmal Khajuria and ors. …..Appellants Through: Mr. Razat Sudan, Advocate Vs Raj Kumar and ors. .…. Respondents Through: None CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 05.08.2025 1. The petitioners have challenged order dated 04.11.2022 passed by the learned Additional District Judge, Udhampur whereby the appeal against the order dated 13.02.2021 passed by learned Sub Judge (Special Mobile Magistrate) Udhampur (hereinafter referred to as “trial Court”) on an application of the petitioners/plaintiffs under Order 39 Rule 1 & 2 CPC has been dismissed. 2. It appears that a suit was filed by the petitioners/plaintiffs before the trial Court seeking declaration that they are co-owners in joint possession of a residential house and 8 shops with open space measuring 01 marla falling under khasra No. 1317 situated at Udhampur Khas, Ward No. 9, Udhampur and for partition of the said property with a permanent prohibitory injunction restraining the defendant/respondent from dispossessing the petitioners/ plaintiffs from the aforesaid property. 3. It was pleaded by the petitioners/plaintiffs that their father along with predecessor-in-interest of defendant and the defendant had separated their properties by remaining joint but predecessor-in-interest of defendant was given separate land apart from the suit property. It was also pleaded that the defendant Sr. No. 14 2 CM(M) No. 36/2023 occupied maximum share of the joint property in land measuring 02 kanals 01 marlas falling under khasra No. 1317 situated at Udhampur Khas. The petitioners/plaintiffs went on to plead that the defendant has already sold his joint 04 shops and is threatening to sell other shops as well. According to the petitioners/plaintiffs, they requested the defendant for partition of the suit property but he refused to do so. 4. In his written statement, the defendant/respondent pleaded that father of the plaintiffs had died 12 years ago and during his lifetime, a partition of the joint property had taken place on 21.02.1998. It has been pleaded that whole of the suit property has been divided amongst shareholders in two shares by drawing a map and the suit property has been divided into 27 shares. It has been further pleaded that in lieu of the partition, father of the plaintiffs had also received an amount of Rs. 17,000/- from the defendant and a partition deed was executed on 21.02.1998 before Notary Public. It has been pleaded that the defendant is in actual and lawful possession of his share of the property and despite knowing these facts, the petitioners/plaintiffs have suppressed the same from this Court. It has been pleaded that the defendant has sold one of his shops, which had come to his share, to plaintiff No. 4 and another shop to plaintiff No. 5 by virtue of sale deeds and that there is no joint property between the parties. 5. The learned trial Court after hearing the parties dismissed the application of the petitioners/plaintiffs for grant of interim injunction by virtue of order dated 13.02.2021. The said order came to be challenged by the petitioners/plaintiffs by way of appeal before the learned Additional District Judge, Udhampur who vide impugned order dated 04.11.2022 dismissed the appeal. 6. The petitioners/plaintiffs have challenged the impugned orders passed by the Courts below on the grounds that as per the revenue record, the suit property is joint and unpartitioned and therefore, the observation of the Courts below that the 3 CM(M) No. 36/2023 petitioners/plaintiffs have no prima facie case in their favour is contrary to the record. It has been contended that the partition deed upon which the Courts below have relied is not registered as such, the same is inadmissible in evidence. 7. I have heard learned counsel for the petitioners and perused the material on record. 8. It is clear from the averments made by the plaintiffs/petitioners in the plaint that father of the petitioners/plaintiffs and his deceased brother Ram Parkash and the defendant had separated their properties and the deceased Ram Parkash who is also predecessor-in-interest of the defendant was given separate land. It is also pleaded by the petitioners/plaintiffs that the defendant has occupied land measuring 02 kanals 09 marlas falling under khasra No. 1317 situated at Udhampur Khas. Thus, the petitioners/plaintiffs’ own pleadings prima-facie show that partition of the joint property has taken place and that the defendant is in possession of his share of the property. Besides this, the defendant has placed on record copy of the sale deed vide which one of the plaintiffs has purchased one shop from the defendant out of erstwhile joint property which prima-facie goes on to show that the partition of the joint property has taken place. Thus, the observations of the learned trial Court as upheld by the learned Appellate Court that there is no prima-facie case in favour of the plaintiffs cannot be termed as either erroneous or perverse. 9. This Court, while exercising its powers of supervision under Article 227 of the Constitution of India, cannot sit as a Court of appeal in respect of the orders passed by inferior Courts. It is only if it is shown that the orders passed by an inferior Court are perverse or the same are grossly illegal resulting in miscarriage of justice that this Court would step in and interfere in such orders. Even an error of fact or an error of law cannot be interfered with by this Court while exercising its supervisory jurisdiction. 4 CM(M) No. 36/2023 10. In the instant case, the petitioners/plaintiffs have not been able to show that there is any illegality much less a gross illegality in the orders passed by the Courts below. Thus, there is no ground to interfere in the impugned order. 11. The petition lacks merit and is, accordingly, dismissed. (SANJAY DHAR) JUDGE JAMMU 05.08.2025 Tarun/PS Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No