HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 02.09.2025 Pronounced on: 11.09.2025 Case No.:- CM(M) No. 243/2025 CM Nos. 5409/2025, 5532/2025 & 1642/2025 Jammu Development Authority …..Petitioner(s) Through: Mr. Sachin Dogra, Advocate & Mr. Rahul Parihar, Advocate. Vs Saminder Singh and ors. .…. Respondent(s) Through: Mr. D.S. Saini, Advocate. Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1. The petitioner, through the medium of the present petition, has challenged order dated 18.07.2025 passed by learned 1st Additional District Judge, Jammu (hereinafter to be referred as „appellate court‟) whereby appeal against order dated 13.03.2025 passed by learned 1st Civil Subordinate Judge (Municipal Magistrate) Jammu has been allowed and the said order has been set aside. 2. It appears that a civil suit seeking permanent prohibitory injunction came to be filed by respondents (hereinafter to be referred to as „plaintiffs‟) before the court of 1st Civil Subordinate Judge (Municipal Magistrate), Jammu 2 CM No. 243/2025 (hereinafter to be referred to as „trial court‟) against the petitioner (hereinafter to be referred to as „defendant‟). In the said suit, the plaintiffs sought injunction against defendant restraining them from forcibly dispossessing the plaintiffs from the land measuring 21 kanals 6 marlas comprised in khasra No. 6 min (khasra No. 32 new) situated at patwar halqa Rakh Bahu tehsil Bahu district Jammu; with a further injunction that the defendant be restrained from transferring, alienating or making any allotment or leasing out the suit land. 3. As per case of the plaintiffs, they and prior to them, their predecessor-in-interest-Darshan Singh have remained in continuous possession of the suit land. It was pleaded that late Darshan Singh had applied for conferment of ownership rights in respect of the aforesaid land in his favour under the provisions of the J&K State Land (vesting of ownership to the occupants) Act, 2001 (hereinafter to be referred to as „Act of 2001‟) but while his request was under process, he passed away on 28.11.2011. It was further pleaded that the plaintiffs pursued the matter with the revenue authorities and after completion of all the requisite formalities, mutation in respect of the suit land was attested in their favour on 14.02.2020. However, in the meanwhile, the Act of 2001 was declared as unconstitutional by this Court, as such, ownership rights could not be conferred upon the plaintiffs. It was further pleaded that the plaintiffs are in possession of the suit land 3 CM No. 243/2025 and they have constructed some jhugis/khokha over a portion of the suit land, which is clear from the report of the patwari concerned, which was authenticated by the Naib Tehsildar. 4. It was submitted that defendant-Jammu Development Authority forcibly occupied 5 kanals of land though originally the plaintiffs were in possession of 26 kanals and 6 marlas of land leaving 21 kanals 6 marlas of land in their possession. It was further pleaded that plaintiff No. 3 had filed a suit for permanent prohibitory injunction in respect of the suit land but later on the said suit came to be withdrawn. It was also pleaded that after attestation of mutation in respect of suit land in favour of the plaintiffs on 14.02.2020, they requested the defendant not to interfere in the suit land but to no avail, which compelled the plaintiffs to file the suit. 5. The defendant filed its written statement before the learned trial court in which it was pleaded that plaintiff No. 3 had filed a writ petition bearing OWP no. 1621/2013 before this Court for seeking a similar relief but the same was dismissed as withdrawn without any permission to file fresh proceedings. It was pleaded by the defendant that the plaintiffs are not in possession of the suit land and that they are illegally trying to encroach upon the said land and that they have even tampered with and forged the official documents. It was also pleaded that the plaintiffs have previously filed a similar suit and when the interim directions were vacated and even an 4 CM No. 243/2025 appeal against the said order was dismissed, plaintiff No. 3 withdrew the said suit. 6. It was submitted that the suit land along with other chunk of land, total measuring 655 kanals and 4 marlas, was transferred to Jammu Development Authority by the State Government and on this land, the defendant has built shops and a building. It was further submitted that the plaintiffs have tampered communication bearing No. Nazool/0708/2467-68 dated 14.09.2007 of the Nazool Department and inserted their names by deleting the name of original allottee under the Act of 2001 whereafter they filed a writ petition before this Court being OWP No. 1621/2013 and got an ex parte status quo order on 26.11.2013. It was submitted that in the said writ petition, the defendant as well as Nazool Department had filed their objections in which it was clearly stated that the plaintiffs have tampered with and forged the documents on the basis of which the writ petition was filed. Thus, according to the defendant, plaintiffs have committed criminal acts and are now filing false and frivolous litigations repeatedly. 7. It seems that the learned trial court, vide order dated 26.05.2023, dismissed the application of the plaintiffs under Order 39 Rules 1 and 2 of the Code of Civil Procedure, declining to grant an interim injunction in their favour. The said order came to be challenged by the plaintiffs by way of an 5 CM No. 243/2025 appeal before the learned 1st Additional District Judge, Jammu who, vide order 06.01.2024, dismissed the appeal. The said order was assailed by the plaintiffs by way of a petition under Article 227 of the Constitution of India bearing CM (M) No. 78/2024 before this Court. Vide order dated 03.06.2024, the said petition came to be dismissed by this Court. However, the plaintiffs were given liberty to avail remedy before the trial court and it was further provided that the trial court shall proceed in accordance with law without being influenced by the observations made by the appellate court. 8. Pursuant to the aforesaid order, the plaintiffs moved an application under section 151 Code of Civil Procedure before the trial court. In the said application, the plaintiffs, after narrating and reiterating the contents of the plaint, submitted that the suit land is required to be preserved in order to protect the lis and as such, in the interests of justice till the rights of the parties are decided, the defendants be restrained from raising any sort of construction over the suit land or to transfer or alienate the suit land till the disposal of the suit. 9. The learned trial court, vide order dated 13.03.2025, dismissed the said application of the plaintiffs primarily on the ground that in the first round of litigation, the plaintiffs have failed to show prima facie case in their favour, which finding has been upheld upto the High Court and, therefore, the 6 CM No. 243/2025 application of the plaintiffs is nothing but an attempt to re- litigate an already settled issue. 10. The aforesaid order of the learned trial court was assailed by the plaintiffs by way of an appeal before the 1st Additional District Judge, Jammu who, vide impugned order dated 18.07.2025, allowed the appeal and set aside the order of the trial court. The learned appellate court directed that parties shall maintain status quo with regard to the suit land till the disposal of the main suit. It is this order, which has been put to challenge by the defendant by way of present petition. 11. The defendant/petitioner has challenged the impugned order passed by the appellate court on the grounds that the said order suffers from jurisdictional error inasmuch as the learned appellate court could not have granted relief to the plaintiffs under section 151 of the Code of Civil Procedure when there is a specific provision contained in Order 39 Rules 1 and 2 of the Code of Civil Procedure for that purpose. It has been contended that having regard to the fact that order of dismissal of application under Order 39 Rules 1 and 2 of the Code of Civil Procedure by the trial court had been upheld upto the High Court, the findings rendered in the earlier round of litigation would operate as res judicata and, therefore, the appellate court could not have reopened the issue under the garb of inherent powers. It has been further contended that the learned appellate Court has misconstrued order dated 7 CM No. 243/2025 03.06.2024 passed by the High Court whereby liberty was granted to the plaintiffs to approach the trial court for redressal. It has also been contended that the provisions of Section 151 Code of Civil Procedure cannot override the special provisions contained in Order 39 and, as such, the judgment of the appellate court is grossly erroneous. 12. I have heard learned counsel for the parties and I have perused the impugned order passed by the appellate court, the grounds of challenge and record of the case. 13. It is not in dispute that in the earlier round of litigation, the application of the plaintiffs for grant of interim injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure was dismissed by the trial court and the said order was upheld in appeal. It is also not in dispute that the petition under Article 227 of the Constitution of India filed against the order of the appellate court in the earlier round of litigation was dismissed by this court on 03.06.2024. It seems that while dismissing the petition, this Court had given a liberty to the plaintiffs to avail remedy before the trial court and it was further directed that the trial court shall proceed in accordance with law without being influenced by the observations made by the appellant court. It is under the garb of these observations that the plaintiffs initiated a fresh round of litigation by filing an application under Section 151 of the 8 CM No. 243/2025 Code of Civil Procedure before the trial court, which rejected the said application. 14. The learned appellate court, while construing the observations of this Court made in an order dated 03.06.2024, has held that if any superior court directs the subordinate court to proceed in accordance with law without being influenced by the observations made by the appellate court, it means that trial court must re-examine the case not just review its previous decision but conduct a new and complete review of the evidence and arguments advanced by the parties as if it was hearing the case for the first time. According to the learned appellate court, such directions are usually issued once the superior court finds that trial court’s earlier handling of the case was occasioned with flaws or irregularities in some ways. 15. The first question that arises for determination is as to whether the aforesaid observations of the Appellate Court are based upon correct appreciation of the observations made by this Court in its order dated 03.06.2024. 16. If we have a look at para (13) of the aforesaid order, the plaintiffs have been given liberty to avail remedy before the trial court and it has been directed that the trial court shall proceed in accordance with law without being influenced by the observations made by the appellant court. It has to be 9 CM No. 243/2025 noted that in para (12) of the said order, it has been clearly held by this Court that the petition is devoid of any merit and deserves dismissal in limini. It has further to be noticed in para (5) of the said order, this court has taken notice of contention of learned counsel for the plaintiffs that appellate court has gone beyond the pleadings and has made certain observations which will influence the trial of the case and again in para (6) of the said order, this Court took notice of the contention of the counsel appearing for the plaintiffs that observations of the appellate court will prejudice rights of the plaintiffs in deciding the issue finally by the trial court. 17. It is in context of aforesaid contentions of the counsel for the plaintiffs that this Court had observed that the observations of the appellate court would not influence the trial court while proceeding in accordance with law meaning thereby that observations of the appellate court regarding merits of the case would not influence the merits of the case at the time of deciding the suit finally after the trial is completed. It is not that this court had set aside the findings of the appellate court or those of the trial court in the first round of litigation. 18. Once this court had held that petition under Article 227 of the Constitution of India, assailing the order of trial court and appellate court, is without merit and deserves dismissal, there was no occasion for the appellate court to infer that the trial court had to undertake a fresh review of whole case in the 10 CM No. 243/2025 second round of litigation. The aforesaid observations of the appellate court are absolutely perverse and grossly erroneous. Thus, the very basis of undertaking a review of whole case by the learned appellate court gets knocked down. 19. There is yet another aspect of the matter, which required to be noticed. The record shows that one of the plaintiffs had filed a similar suit against the defendant regarding the same land. In the said suit, the learned trial court, vide order dated 24.04.2019, dismissed the application of the plaintiff-Kuldeep Kour seeking interim injunction. The said order came to be challenged by the said plaintiff by way of an appeal before the court of learned 2nd Additional District Judge, Jammu who, vide order dated 31.08.2019, dismissed the appeal. Plaintiff- Kuldeep Kour did not stop here but she challenged the order of the appellate court before this court by way of a civil revision bearing CR No. 83/2019 and the said civil revision petition came to be dismissed by this court in terms of judgment dated 02.03.2020. After failing in her attempt to obtain an interim injunction against the defendant in respect of the suit land, plaintiff-Kuldeep Kour withdrew the suit from the trial court without seeking liberty to file a afresh one. Thereafter, she joined with other two plaintiffs and filed another suit before the trial court, which has given rise to the present proceedings. In the second round of litigation also plaintiffs failed to obtain interim injunction from the learned 11 CM No. 243/2025 trial court. The order of the trial court, as already stated, was upheld by the appellate court and the petition under Article 227 of the Constitution of the India against both these orders came to be dismissed by this court. 20. In effect, the present proceedings is the third attempt on the part of the plaintiffs to seek an interim injunction against the defendant in respect of the same land on the same facts and material. The approach of the plaintiffs is nothing but gross abuse of process of law. Unfortunately, the learned appellate court has fallen prey to the mischievous mechanization and litigious attitude of the plaintiffs, which has led it to pass the impugned order without taking note of the aforesaid conduct of the plaintiffs. The learned appellate court, as if it was sitting in appeal over the earlier order passed by the trial court, which was upheld right upto the High Court, proceeded to assume jurisdiction, which it did not possess and passed the impugned order. 21. The Supreme Court in the case of ‘Bhanu Kumar Jain vs Archana Kumar & Anr‟, 2005 (1) SCC 787 has observed that principles of res-judicata apply not only to two different proceedings but also to two different stages of same proceedings as well. The relevant observations of the Supreme Court are reproduced as under: “18. It is now well settled that principles of res judicata apply in different stages of the same proceedings. 12 CM No. 243/2025 19. In Y.B. Patil (1976) 4 SCC 66] it was held: “4. … It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.” xxx xxx xxx 21. Yet again in Hope Plantations Ltd. [(1999) 5 SCC 590, this Court laid down the law in the following terms: "17….One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice." 22. The aforesaid dictum of law has been followed by the Supreme Court in a recent judgment titled “Sulthan Said Ibrahim Vs. Prakasan” (Civil Appeal No. 7108 of 2025) decided on 23.05.2025. The Supreme Court, in the aforesaid case, has held that only manner in which a decision arrived at by a court of competent jurisdiction at one stage of the proceedings can be interfered with is by modification or reversal of appellate authority. 23. In the instant case, the learned appellate court has, contrary to the aforesaid legal settled position of law, proceeded to 13 CM No. 243/2025 reverse the findings recorded by the trial court, which were upheld upto the High Court. The same is not permissible in law. On this ground also, the impugned order passed by the learned appellate court is not sustainable in law. 24. So far as the merits of the claim of the plaintiffs is concerned, the learned appellate court has, while passing the impugned order held that there is a prima-facie case in favour of the plaintiffs. In this regard, the appellate court has placed reliance upon the mutation attested in favour of the plaintiffs in respect of the suit land. It is to be noted that the mutation in question has been termed as forged and fake by the respondent and this stand of the respondent is borne out from the report of the revenue authorities. In the report dated 13.09.2022, it is clearly stated that as per the record available, no such mutation is attested in the mutation register. Once there is no such mutation attested in the mutation register, the same does not carry the presumption of correctness and it is not necessary for the defendant to challenge the said mutation. A mutation, which is not in existence at all, is non-est in the eyes of law and, therefore, the same is not required to be challenged. The learned appellate court has fallen into grave error by placing reliance upon the said forged mutation. 25. In view of the foregoing legal position, the impugned order passed by the appellate court, besides being grossly 14 CM No. 243/2025 erroneous, has caused grave miscarriage of justice, inasmuch as the plaintiffs have been allowed to re-agitate the settled issues, which is not permissible in law. 26. In view of the foregoing discussion, the instant petition is allowed and the impugned order passed by the appellate court is set aside and the order dated 13.03.2025 passed by the learned trial court is maintained. 27. Disposed of accordingly. (SANJAY DHAR) JUDGE JAMMU 11.09.2025 Naresh/Secy. Whether order is speaking: Yes Whether order is reportable: Yes Naresh Kumar 2025.09.11 18:10 I attest to the accuracy and integrity of this document