HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 13.11.2024 Pronounced on: 06.02.2025 CM(M) No. 7/2021 1. Anjani Gupta Age 61 years W/O Sh. Ashok Kumar Gupta R/O 395 Extension-1/A, Trikuta Nagar, Jammu …..Appellant(s)/Petitioner(s) Through: Mr. Rakesh Chargotra, Advocate. vs 1. Ajay Mengi S/O Hans Raj Mengi R/O H. No. 191, Sector-5, Roop Nagar Housing Colony Jammu. 2. Chand Kumari W/O Romesh Chander Gupta, R/O H. No. 421, Shastri Nagar, Jammu .…. Respondent(s) Through: Mr. S. M. Choudhary, Advocate. Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMENT 1. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India for setting aside the order dated 07.03.2020 passed by the court of learned 1st Additional District Judge, Jammu (for short „the Appellate Court‟) in Misc. Appeal titled “Ajay Mengi vs. Chand Kumari and another”, whereby the learned Appellate Court while directing the parties to maintain status-quo vis-a-vis suit property, has set aside the order dated 26.11.2018 passed by the court of learned 2nd Additional Munsiff, Jammu (for short „the Trial Court‟), whereby the 2 CM(M) No. 7/2021 learned trial court had dismissed the application for grant of interim relief filed by the respondent No. 1. 2. Brief facts necessary for disposal of the present petition are that the respondent No. 1 filed a suit for permanent prohibitory injunction against the petitioner and the proforma-respondent for restraining them from interfering in his peaceful and uninterrupted possession over the plot No. 44, Lane No. 15 comprising survey No. 660 min measuring 40 × 80 feet (12 Marlas) situated at Revenue Village Sunjwan at present Greater Kailash, Residential Colony and further restraining them from demolishing/damaging the boundary wall/iron gate around the said plot and raising any kind of construction over the suit land in any manner whatsoever on spot. The description of the above-mentioned plot, as stated in the plaint, is as under: North - Vacant plot of Mr. Sharma South - Lane No. 15 of Greater Kailash Colony East - Plot No. 43 of Smt. Sunita Kohli West - Plot of Sh. Harbans Singh. 3. It was pleaded by the respondent No. 1 that he had purchased the above- mentioned plot by virtue of a duly executed registered sale deed dated 07.02.1991 from one Chet Singh S/o Sh. Bhag Singh and immediately thereafter, the respondent No. 1 constructed the boundary wall around the suit land and installed iron gate. It was stated that there was dispute with respect to another piece of land/plot situated in the same survey number of the same village owned and possessed by one Smt. Sunita Kohli and respondent No. 2 and cross-revision petitions were pending adjudication before learned Divisional Commissioner, Jammu wherein the respondent 3 CM(M) No. 7/2021 No. 1 was not a contesting party. Divisional Commissioner, Jammu vide his decision dated 06.06.2008 accepted the cross-revision petitions between both the parties and referred the petitions to the Financial Commissioner (Revenue) J&K, Jammu for passing appropriate orders. The reference was transferred by the Financial Commissioner (Revenue) J&K to the Joint Financial Commissioner (Revenue), Jammu for adjudication and the respondent No. 1 was impleaded as one of the respondents (fact contrary to record as his application for impleadment was dismissed). The Joint Financial Commissioner (Revenue) Jammu constituted a commission for conducting the demarcation of land comprising survey Nos. 660 min and 653 min of village Sunjwan. The Tehsildar, Bahu and Assistant Commissioner (Revenue), Jammu conducted the demarcation and submitted the report to the Joint Financial Commissioner (Revenue) Jammu on 22.02.2017 and 17.05.2017 respectively. It is asserted by the respondent No. 1 that the petitioner and the respondent No. 2 despite having no title, interest or possession or right/claim over the suit land, were unnecessarily interfering with his settled possession on the pretext of demarcation reports submitted by the Tehsildar Bahu and Assistant Commissioner (Revenue), Jammu which compelled the respondent No.1 to file the suit. 4. Along with the suit, an application for interim relief was also filed and the learned trial court vide order dated 16.08.2017 directed the parties to maintain status quo with respect to possession of suit land till next date of hearing. 4 CM(M) No. 7/2021 5. The petitioner and the respondent No.2 filed their separate written- statements, stating therein that the respondent No. 2 had purchased the land measuring 1 Kanal comprising Khasra No. 653 min situated at village Sunjwan, Tehsil Jammu by virtue of sale deed dated 16.04.1971 and after its purchase, the Revenue Field Agency, after verifying the physical possession of the respondent No. 2, attested the mutation No. 785 whereby the sale deed and possession of the respondent No. 2 was reflected in the revenue record but some private colonizers started developing the colony near the plot of respondent No. 2 and caused interference in her peaceful possession, therefore, she filed a civil suit, which was decreed in her favour by virtue of judgment dated 10.05.2004 whereby the private colonizers/defendants therein, were restrained from causing interference in the possession of respondent No. 2 over the suit land. Thereafter, the respondent No. 2 applied for issuance of Fard-Intikhab-Jamabandi and Aks of the land for its transfer, which was initially prepared and issued but subsequently, on the application filed by Sunita Kumari before Assistant Commissioner, Revenue, Jammu for demarcation of land, Assistant Commissioner, Revenue, Jammu directed Naib-Tehsildar not to renew the same vide order dated 11.10.2006. The aforesaid order was called in question before the Divisional Commissioner, Jammu by way of a revision petition and the Divisional Commissioner, Jammu vide order dated 06.06.2008 accepted the revision petition by making reference to the Financial Commissioner (Revenue) Jammu for its disposal, who transferred the same to the Joint Financial Commissioner (Revenue) with powers of Financial Commissioner (Revenue) J&K, Jammu. During 5 CM(M) No. 7/2021 pendency of the reference, a commission was appointed, which submitted an ex parte report and finally the Assistant Commissioner (Revenue), Jammu submitted a detailed report pursuant to order dated 05.02.2015 of Joint Financial Commissioner, Jammu stating therein that the disputed plot is under the physical possession of the petitioner. It was stated that the respondent No. 1 has concealed the aforesaid facts and approached the Court with unclean hands and committed fraud by withholding report of ACR, as such, the suit of the plaintiff was liable to be dismissed. The respondent No.2 had filed the revision petition against Sunita Kohli and respondent No. 1 had moved an application seeking impleadment, therefore, he was aware about the pendency of two revision petitions at the time of filing of suit and the respondent No. 1 has raised unnecessary dispute in respect of the property of respondent No. 2, which now belongs to the petitioner, as the respondent No.2 had sold the same to the petitioner by virtue of the sale deed dated 10.09.2008 duly registered by Sub Registrar, Jammu on 12.09.2008, regarding which the mutation also has been attested in her favour. It is also stated that the sale deed relied upon by the respondent No. 1 was executed on the basis of dasti site plan and the sale deed and the site plan attached with the same, do not speak about the description and dimension of the land, as alleged in the plaint and the respondent No. 1, being out of possession of the property was trying to occupy part of the property of the petitioner. As per the dasti site plan, the dimension of the plot is 80 × 40 feet and is being claimed to be situated at the front side of lane No. 15 of Greater Kailash Colony, Sunjwan, which means that length of the plot is 80 feet along road side and width of the 6 CM(M) No. 7/2021 plot is 40 feet and the other person Sunita Kohli is also claiming to have purchased plot No. 43 of 80 × 40 feet to be situated on front side, which means that length of the plot of said Sunita Kohli alongside the road side is 80 feet whereas the width is 40 feet, but the aforesaid dimension and description is contrary to position existing on spot and proves that the contentions of the respondent No. 1 as well as Sunita Kumari are misconceived. The respondent No.2 has also filed her written statement supporting the case of the petitioner. 6. After the petitioner and the respondent No.2 filed the response, the learned trial court vide its order dated 26.11.2018 dismissed the application for grant of interim relief by holding that prima facie the respondent No. 1 was in possession of the suit property. The respondent No. 1 assailed the order dated 26.11.2018 passed by the learned trial court and the learned Appellate Court vide its order/judgment dated 07.03.2020 set aside the order dated 26.11.2018 and directed the parties to maintain status quo till disposal of the suit by the learned trial court. 7. The petitioner has now approached this Court for assailing the order dated 07.03.2020 passed by the learned Appellate Court on the following grounds: i. That the Appellate Court has failed to appreciate that there was dispute with regard to demarcation and dispute of demarcation is amenable to the jurisdiction of Revenue Courts and as such, only Revenue Authority can determine and settle the dispute of demarcation and the dispute was finally settled by the highest Revenue Court i.e. Joint Financial Commissioner, J&K, Jammu, 7 CM(M) No. 7/2021 vide its detailed judgment, as such, the dispute cannot be re- determined by the civil court because the civil court has no jurisdiction to decide the identity of the land in an injunction suit and can only grant injunction if the respondent No. 1 is in possession and his possession is interfered with, but in the instant case, the Commissioner‟s report clearly shows that the petitioner is in possession and there is a judicial finding on the basis of the report, and as such, the claim of respondent No. 1 merits no consideration. ii. That the erstwhile owner, namely, Chand Kumari was in physical possession of the suit land and her possession was protected by the court of learned Munsiff, Jammu and when it was disturbed, the Revenue Authorities in view of the judgment and decree had restored the same and the erstwhile owner Chand Kumari had obtained the Fard Intikhab Jamabandi for transfer of the land but its renewal was wrongly prohibited by the learned Assistant Commissioner Revenue, Jammu on the application/motion of Sunita Kohli, irrespective of the fact that Sunita Kohli was stranger to the suit land. iii. iii. That the learned Appellate Court had relied upon two ex parte reports submitted during the pendency of reference before the Joint Financial Commissioner, J&K, Jammu irrespective of the fact that the aforesaid reports submitted by the Tehsildar and relied upon by the Appellate Court were ex parte and in fact rejected by the Joint Financial Commissioner, Jammu because 8 CM(M) No. 7/2021 the Joint Financial Commissioner, Jammu has shown its dissatisfaction over the demarcation report and appointed the superior officer/ACR, Jammu as Commissioner to demarcate the land, who submitted a report indicating that the disputed land belongs to the petitioner and said report was never objected by the respondent No. 1 as per information of the petitioner. The reports of the Tehsildar which are contrary to the judicial finding of the Joint Financial Commissioner, J&K, Jammu were required to be ignored by the Appellate Court, but the Appellate Court has not taken note of the order passed by the learned Joint Financial Commissioner, J&K, Jammu. iv. That the respondent No. 1 was aware about the report of the Assistant Commissioner Revenue, Jammu but the same was concealed from the learned trial court while obtaining the interim relief because the report was against the respondent No. 1. v. That the petitioner had got the site plan approved and wanted to raise construction of her residential house but the respondent No. 1, having no right over the land, filed a suit to stop the construction of the petitioner and the learned Appellate Court while passing the order impugned has not rightly appreciated three principles i.e. prima facie case, balance of convenience and irreparable loss while setting aside the order passed by the learned trial court. 9 CM(M) No. 7/2021 8. Mr. Rakesh Chargotra, learned counsel for the petitioner has vehemently argued that the respondent No. 1 has concealed the report submitted by the Assistant Commissioner Revenue Jammu before the Financial commissioner Revenue, Jammu despite the fact that the respondent No. 1 was aware about the same and as such, he was not entitled to any relief, but the learned Appellate Court did not consider this vital aspect of the case and has placed reliance upon two ex parte reports regarding which the Joint Financial Commissioner, Revenue, Jammu has expressed his dissatisfaction. He has further argued that in another suit titled „Sunita Kohli vs. Anjani Gupta’, in the site plan annexed with that sale deed, the dimension of the land in that sale deed, has also been mentioned as 80 feet × 40 feet and if description of the land stated in the plaint of the respondent No. 1 is accepted, then the aforesaid dimensions and description is contrary to the position existing on spot. He has further argued that the respondent No.1 has shown the plot of one Sunita Kohli towards eastern side of his plot and likewise in the suit filed by Sunita Kohli, she has referred the plot of Ajay Mengi towards eastern side of her plot, which is impossible and it clearly establishes the falsity of the claim of the respondent No.1 and Sunita Kohli. He has placed reliance upon the judgments of Hon‟ble the Supreme Court in cases titled S. P. Changalvarya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs1, Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs and others 2, Iqbal Basith and others vs N. Subbalakshmi and others 3, Bengal 1 1994, AIR (SC) 853 2 2008 AIR (SC) 2033 3 2021 (2) SCC 718 10 CM(M) No. 7/2021 Ambuja Housing Development Ltd. vs. Pramila Sanfui and others4, Municipal Corporation of Delhi vs. C. L. Batra 5, AssadullahAhanger vs. Abdul Ahad Ahange.6 Reliance has also been placed on the judgment passed by this Court in case titled Raj Kumar and another vs. Paramjit Singh7. 9. Per contra, Mr. S. M. Choudhary, learned counsel for the respondent No. 1 has argued that the judgment and decree relied upon by the petitioner passed in favour of Chand Kumari cannot be relied upon as the respondent No. 1 was not party to the said decree and he further submits that a wrong finding had been returned by the learned trial court that the possession of the land was handed over to the Chand Kumari after following due procedure of law. He has raised preliminary objection in respect of maintainability of the petition under Article 227 of the Constitution of India as disputed questions of facts are involved in the instant petition, that can be enquired into only during trial. He further submits that there is no jurisdictional error on part of the learned Appellate Court, while directing the parties to maintain status quo. 10. Heard learned counsel for the parties and perused the record. 11. The respondent No. 1 is claiming to be the owner in possession of land comprising survey No. 660 min measuring 40 × 80 feet (12 Marlas) situated at Revenue Village Sunjwan, through the medium of sale deed dated 06.02.1991, which the respondent No. 1 claims to have covered by 4 2015 AIR (SC) 3729 5 1994 (5) SCC 355 6 1994 AIR (SC) 853 7 Law Finder Doc Id#2428040 11 CM(M) No. 7/2021 constructing a boundary wall. It is also alleged by the respondent No. 1 that he has installed an iron gate over the same. 12. On the contrary the petitioner claims to be the owner of 1 Kanal of land comprising survey No. 653 situated at Revenue Village Sunjwan by virtue of sale deed dated 10.09.2008 executed by Chand Kumari, who in turn had purchased the same from one Thakur Singh vide sale deed dated 16.04.1971. 13. It is evident that the contesting parties are claiming their possession in respect of the suit land though as per respondent No. 1 the same falls in survey No. 660 min and as per the petitioner, the same falls in survey no. 653 situated at village Sunjwan. 14. From the record, it is evident that two cross revision petitions were decided by the Divisional Commissioner, Jammu vide order dated 06.06.2008, and it was observed that there was no dispute at all but the same was created by the then Naib Tehsildar, Bahu and his field staff. On the one hand after demarcation, they had located and identified survey Nos. 653 and after their satisfaction delivered the possession to Chand Kumari and also issued Fard Intikhab in respect of the said land in her favour but when Chand Kumari approached for renewal, the same was denied to her without any just cause. With these observations, the order passed by the Assistant Commissioner Revenue, Jammu was held to be contrary to law and accordingly, reference was made to the Financial Commissioner Revenue, J&K, Jammu. 15. Vide order dated 05.02.2015, the Assistant Commissioner Revenue, Jammu was appointed as Commissioner, who submitted a report dated 12 CM(M) No. 7/2021 11.05.2017 and came to the conclusion that due to absence of Latha Mussavi/Tatima, the demarcation and identification of exact survey no. of plot could not be established, however, it is clear that the spot is in possession of Smt. Chand Kumari and now Smt. Anjani Gupta since 1999 on the basis of the decree passed by the Munsiff Court and the possession was handed over by the Revenue Department after following due procedure of law. 16. Simultaneously, Assistant Commissioner (Revenue) Jammu also stated that Survey No. 652 lies between the survey nos. 653 and 660 and the same has been sold to one Subash Chander, whereas on the spot if the disputed plot is considered as survey No. 660, then the adjoining should be survey No. 652 and across it should be 653. It is also observed by the Commissioner that whole of the colony has been laid and sold out by the developers through their owners and that way they had utilized the plot of Chand Kumari in their lay out and a portion of it might have been utilised in the lanes. In lieu of 1 Kanal land of plot of Chand Kumari, the developers seem to have left a plot measuring 80 feet × 80 feet regarding which a decree was later granted by Munsiff court. This plot is definitely not as per tatima of plot purchased by Chand Kumari out of survey no. 653 in the year 1971. The Joint Financial Commissioner vide order dated 16.10.2017, by considering the report submitted by the Assistant Commissioner Revenue as mentioned above, accepted the reference made by the Divisional Commissioner, Jammu. 17. A perusal of the suit reveals that it was filed on 12.08.2017 meaning thereby that the reference was decided by the Joint Financial 13 CM(M) No. 7/2021 Commissioner J&K after filing of the suit. The learned Appellate Court has taken note of the report of Assistant Commissioner dated 11.05.2017 and another report dated 22.10.2011 submitted by Tehsildar, Settlement Jammu. This court is surprised that how the report dated 22.10.2011 has been considered by the learned appellate court for returning the finding that in the report dated 22.10.2011, the respondent No.1 has been shown in settled possession of the suit land. The said report was in respect of lands of respondent No.2 and Sunita Kumari and not of respondent No.1. It needs to be noted that the respondent No. 1 is laying claim over the land on the basis of dasti site plan prepared by the Revenue Agency and that too without proper identification of the land. The above finding returned by the learned Appellate Court is perverse in nature and has been made a ground to set aside the order passed by the learned trial court. This court is of the considered view that the finding returned by the learned Appellate Court is in fact, an error apparent on the face of record as there was no such report to justify the finding returned by the learned Appellate Court. By placing reliance upon the report(s), wherein the respondent No.1 was not even referred to, the learned Appellate Court could not have set aside the order passed by the learned trial court. 18. In Garment Craft v. Prakash Chand Goel8, the Hon‟ble Supreme Court of India has held as under: “15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under 8 (2022) 4 SCC 181 14 CM(M) No. 7/2021 challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. has observed “6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” (emphasis added) 19. In terms of abovementioned judgment of the Hon‟ble Apex Court, the High Court having power of superintendence over all the courts/tribunal under its jurisdiction, in exercise of power vested under Article 227 of the Constitution of India, can set aside the finding(s) of fact(s) returned by the courts/tribunals, if there is no evidence to justify the said finding(s). 20. The contention of the petitioner that the respondent No.1 has shown the plot of one Sunita Kohli towards eastern side of his plot and in the suit 15 CM(M) No. 7/2021 filed by Sunita Kohli, she has referred the plot of Ajay Mengi towards eastern side of her plot, which is impossible, and it clearly establishes the falsity of the claim of the respondent No.1 and Sunita Kohli is required to be adjudicated by the Appellate Court and not by this court while exercising jurisdiction under Article 227 of the constitution of India. Since the appellate court has mainly relied upon the report(s) demonstrating the possession of the respondent No.1, which in fact was never mentioned in the said report(s), therefore, this is a fit case which requires remanding the matter back to the learned Appellate Court for passing fresh orders. 21. In view of the above discussion, this court is of the considered view that the order impugned is not sustainable in the eyes of law and accordingly, the same is set aside. The matter is remanded back to the learned Appellate Court to consider and decide the same afresh, without being influenced in any manner, in respect of any observation either made by this court or by the appellate court earlier in the order impugned. 22. Disposed of. (RAJNESH OSWAL) JUDGE Jammu 06.02.2025 Sahil Padha Whether the order is speaking: Yes Whether the order is reportable: Yes KARAM CHAND 2025.02.07 11:44 I attest to the accuracy and integrity of this document