HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No.106/2025 ABDUL HAMID MIR ... PETITIONER(S) Through: - Mr. Asif Ali Dar, Advocate. Vs. MST. SHAMEEMA & ORS. …RESPONDENT(S) Through: - M/S: Zamir Abdullah & Zahir Abdullah, Advocates. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER(ORAL) 30.06.2025 1) The petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India for challenging order dated 16.12.2024 passed by the learned Principal District Judge, Kulgam (hereinafter referred to as “the Appellate Court”), whereby the appeal filed against order dated 18.10.2023 passed by the learned Munsiff, Qazigund (hereinafter referred to as “the trial court”), has been allowed and the respondents herein have been permitted to raise construction on a portion of the suit land subject to furnishing of undertaking that in case the plaintiff succeeds in the suit, they shall dismantle the construction at their own risk and cost. 2) It appears that the petitioner has filed a suit before the trial court seeking declaration, partition and permanent Sr. No.46 Regular List P a g e | 2 prohibitory injunction against the respondents/ defendants. In the plaint it has been pleaded by the plaintiff that his mother, Mst. Jana, had contracted second marriage with Mummeh Ganai, the original owner of the suit land measuring 05 kanals and 03 marlas falling under Khasra Nos.68, 79, 80 and 37 situated at Village Hakradan Kund. It has been further pleaded that the plaintiff was born out of the first marriage of his mother and at the time of her second marriage with original owner, Mummeh Ganai, he was only two years old and he was brought up in the house of his step-father, namely, Mummeh Ganai. It has been further pleaded that the defendants were born out of the wedlock of Mummeh Ganai with Mst. Jana and that they are their natural offsprings. 3) It is case of the plaintiff that on 14th August, 1972, late Mummeh Ganai executed a will deed duly registered with Sub-Registrar, Kulgam, whereby he bequeathed his share in the suit property in favour of the plaintiff. It has been further submitted that Shri Mummeh Ganai died in the year 1996, whereafter the suit property was inherited by his wife and the parties to the suit. It has also been pleaded that though the plaintiff was entitled to a larger share in the suit property on the basis of the will deed executed by Mummeh Ganai but the parties agreed to inherit the suit P a g e | 3 property in equal proportions and, accordingly, mutation No.02 dated 03.07.1997 was attested. It has further been submitted that the suit land measuring 05 kanals and 03 marlas is still joint and unpartitioned, though a private arrangement was made after the death of Mummeh Ganai and Mst. Jana to facilitate the plaintiff and defendants the cultivation thereof and to avoid any conflict till its partition. 4) It is also pleaded that land measuring 02 kanals and 02 marlas under Survey No.37, out of the suit land, has been preserved jointly for construction purposes and the said land was being used by the parties for growing paddy crops. According to the plaintiff, rear portion of the suit land has been placed under the arrangement of the plaintiff for cultivation of paddy crops whereas the front portion thereof has been preserved for raising construction after its regular partition. It has been submitted that the defendants are now trying to raise construction over the front portion of the property to the detriment of the interests of the plaintiff. 5) The defendants in their written statement pleaded that the suit property, in fact, belongs to their mother and, as such, the plaintiff has no right or interest in the suit property. They have denied execution of will deed by their father in favour of the plaintiff and have claimed that Shri Mummeh Ganai had died in the year 1968 itself and, as P a g e | 4 such, there is no question of his executing will deed in favour of the plaintiff in the year 1972. It has been contended that the petitioner/plaintiff is not a co-sharer of the suit property, as such, he has no right to seek partition of the same. It has also been pleaded that the defendants have raised construction upto the plinth level six months back and they have also dumped construction material on spot. 6) The learned trial court, after hearing the parties, disposed of the application of the plaintiff under Order 39 Rule1 & 2 of CPC in terms of Order dated 18.09.2023 and the parties were directed to maintain status quo with regard to construction on spot over the land under Survey No.37 till final disposal of the suit. 7) The aforesaid order came to be challenged by the defendants by way of an appeal before the Appellate Court by way of an appeal. The learned Appellate Court vide impugned order dated 16.12.2024 allowed the appeal and modified order of the learned trial court by providing that the defendants are permitted to raise construction subject to furnishing of undertaking to the effect that in case the plaintiff succeeds in the suit, they shall dismantle the construction at their own cost. P a g e | 5 8) The petitioner has challenged the impugned order passed by the learned Appellate Court on the grounds that the facts and the material on record have not been properly appreciated by the learned Appellate Court. It has been further contended that the parties to the suit are co-owners in respect of the suit property which is joint and unpartitioned, therefore, it was not open to the learned Appellate Court to allow the defendants to raise construction on the suit land, which according to the petitioners, would be detrimental to his interests and that the same would result in irreparable loss to him. 9) Heard and considered. 10) From a perusal of the pleadings filed by the parties before the trial court, it is clear that the plaintiff/petitioner is not a natural legal heir of Shri Mummeh Ganai, the original owner of the suit land. The plaintiff claims to be the co-owner of the suit land on the basis of will deed dated 14th August, 1972, allegedly executed by Shri Mummeh Ganai. The defendants in their written statement have specifically pleaded that Mummeh Ganai passed away in the year 1968. The respondents/defendants have placed on record a copy of the death certificate of Gh. Mohammad Ganai issued by Police Station, Kund Kulgam, which reflects the date of his death as 4th May, 1968. The plaintiff has not placed on P a g e | 6 record any document to rebut the contention of the defendants/respondents that Mummeh Ganai had died even before the execution of will deed dated 14th August, 1972. Therefore, the very basis of the claim of the plaintiff as regards his co-ownership to the suit property appears to be shrouded in suspicion and this casts a cloud upon his title to the suit property. The plaintiff, as such, has failed to prove a prima facie case in his favour. 11) Even if it is assumed that late Mummeh Ganai had executed a will deed in favour of the plaintiff during his life time, still then as per the averments made by the plaintiff in the plaint, land measuring 02 kanals and 02 marlas falling under survey No.37 situated at Village Hakradan was divided into two portions and back portion is being cultivated by the plaintiff, meaning thereby that front portion of the said land has been left for cultivation by the defendants under a private arrangement. This, in other words, means that it is the defendants who are in possession of front portion of the land in question on which they intend to raise construction. Therefore, the observation of the learned trial court that the defendants are not in exclusive possession of any portion of the property appears to be contrary to the material on record and the pleadings of the parties. The learned Appellate P a g e | 7 Court has rightly appreciated this aspect of the matter and held that the defendants are in exclusive possession of a certain portion of the suit land on which they are entitled to raise construction. 12) In view of what has been discussed hereinabove, I do not find that the learned Appellate Court, while passing the impugned order, has committed any error of law, much less a grave error of law, warranting any interference from this Court in exercise of its jurisdiction under Article 227 of the Constitution. The petition lacks merit and is dismissed accordingly along with connects CM(s). (Sanjay Dhar) Judge Srinagar 30.06.2025 Bhat Altaf-Secretary” Whether the order is reportable: Yes/No