1 S. No. 15 Regular Cause List IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No. 99/2023 Mohmmad Yousuf Beigh …Appellant/Petitioner(s) Through: Mr. Mujeeb Andrabi, Advocate Vs. Aamir Ahmad Beigh and Ors. ...Respondent(s) Through: Mr. N.A. Kuchai, Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE O R D E R 16.07.2025 1. Order dated 02.05.2023 passed by the court of Principal District Judge, Budgam (for short “Appellate Court”) in MA no.105/M tilted Amir Ahmad Beigh and others vs. Khursheed Ahmad Beigh and others, is sought to be set-aside. 2. I have heard learned counsel for parties and considered the matter. 3. Plaintiffs – contesting respondents 1 to 8 herein, have filed a suit for declaration, partition and injunction before the court of Munsiff, Budgam, in which they pray for following relief: a) A decree of declaration to the effect that the plaintiffs are the joint owners and joint possessor of the suit scheduled property measuring 13 Kanals and 14 Marlas situated at revenue village Chowdri Bagh Budgam falling under survey numbers 22, 1 Kanal 8 Marlas, 80/1, 1-kanal and Marlas, 80,2-kanal 11 Marlas, 8,4- 2 kanal 9 Marlas 9,11-marlas. Land measuring 3 Kanals and 6 Marlas falling under survey Nc 156,1-kanal 1 Marlas, 157, 1-kanal 1 Marlas and 158,1 Kanal and 4 Marias situated at Sebden Budgam to the extent of their share to which they are entitled under the Muslim personal law. Marlas situated at Sebden Budgam to the extent of their share to which they are entitled under the Muslim personal law. b) A decree for partition by metes and bounds for the suit land and the plaintiffs be handed over their due share separated from the suit land after portioning it. c) A decree for permanent injunction restraining the defendant from causing any kind of interference into the possession of the plaintiffs in respect of the share in the suit land which will be allotted to them by partitioning it. 4. The relief has been claimed by the plaintiffs/respondents on the ground that the property is joint between parties and is required to be partitioned. 5. The Trial Court issued ad interim order on 16.02.2015. However, with the consent of parties, the interim order is stated to have been made absolute by virtue of order dated 23.02.2015. 6. During pendency of the suit, defendant no.11/petitioner herein moved an application for granting him permission to sell 01 Kanal of land out of the suit property as he required the money for making arrangements for marriage of his two daughters. The Trial Court by virtue of order 21.12.2021 permitted defendant no.11/petitioner to sell/alienate 01 Kanal of land out of Survey no.1 min (old) 8 (new) situated at Chowdery Bagh, Budgam, subject to filing of an undertaking that if plaintiffs/respondents herein succeed in the case, 3 the land alienated by him would be accounted from his share at the time of partition. 7. Against the Trial Court order dated 21.12.2021, plaintiffs/ respondents filed an appeal. The Appellate court accepted it and set- aside Trial Court order dated 21.12.2021. 8. Learned counsel for petitioner submits that in pursuance of the Trial Court order, defendant no.11/petitioner executed a sale deed in respect of portion of land, but subsequently the Trial Court order came to be set-aside in the appeal. Appellate Court is stated to have wrongly exercised the jurisdiction, leading to severe hardship and injustice to petitioner. According to him, right to property is a human right including a legal right. It is being stated that order impugned has been passed in derogation of Order XXXIX Rule 4 CPC. 9. Ad interim order in ex parte was passed by Trial Court on 16.02.2015, whereby parties were directed to maintain status quo on spot with respect to possession and title of subject matter of the suit. The said order came to be made absolute on 23.04.2015 upon the consensual submission made by learned counsel for parties. 10. On 27.03.2021, defendant no.11/petitioner moved an application before the Trial Court seeking permission to alienate 01 Kanal of land out of Survey No.1-min (old), 08 (new) situated at Chowdery 4 Bagh, Budgam. It had been contention of counsel for defendant no.11/ petitioner that subject-matter of application was self-acquired property of petitioner and his brother, namely, Ghulam Rasool Beigh (father of defendants 1 to 6) and after partition in between the duo, entire land falling under Survey no.1 min(old) 09 (new) had fallen into share of defendant no.11/petitioner which fact had never been denied by defendants 1 to 6. The land under said survey number is recorded in the name of applicant/defendant no.11 in revenue records solely to the exclusion of others. Petitioner’s counsel had also urged before the Trial Court that if presumed not admitted that subject-matter of suit was unpartitioned and in joint ownership of partis to the suit, still, law nowhere barred a co-sharer from alienating his share from unpartitioned property, as such, defendant no.11 was otherwise competent to alienate his share from the suit property. Reference was made by counsel for defendant no.11 to Section 44 of the Transfer of Property Act, which according to him, empowered defendant no.11 to sell/alienate portion of suit property to the extent of his share if presumed that suit land was unpartitioned. 11. The Trial Court discussed Section 44 of the Transfer of Property Act, which provides that where one of the two or more co-owners of 5 immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce partition of the same, but subject to the conditions and liabilities affecting the date of the transfer, the share or interest so transferred. 12. Perusal of Trial Court order also reveals that land was covered under Survey no.01 (old), 08 (new), comprises of 04 Kanals 09 Marlas. The Trial Court then observes that if applicant/petitioner is allowed to alienate 01 Kanal of land out of the said survey number, still claim of plaintiffs can be satisfied to the extent of their share out of said survey number, on proof by them that the land out of said survey number is unpartitioned and joint in between the parties. The Trial Court concluded permitting defendant no.11 to alienate/sell 01 Kanal of land. 13. In their appeal, plaintiffs/respondents insisted that Trial Court order had been passed in derogation of settled principles of law as co- owners in joint property are owners of every inch of land and co- sharer has no right over a specific portion of land unless partition between co-sharers and that Trial Court remained oblivious of the 6 said legal principle and illegally permitted defendant no.11/ petitioner to alienate part of suit property. 14. The Appellate Court, after making reference to provisions of Order 39 Rule 4 CPC, has observed that it is not open for parties to seek modification of interim order in any manner whatsoever and that Trial Court could have preferred expeditious disposal of the suit and discouraged the parties to take resort to parallel proceedings in the suit, causing irresolution than resolution of the Lis. Finally, the Appellate Court set-aside the Trial Court order by virtue of order impugned. 15. The contention of learned counsel for petitioner is that second proviso to Rule 4 of Order 39 CPC provides where an order of injunction can be discharged, varied or set-aside in exceptional cases, where it is necessitated by a change in the circumstances or where the Court is satisfied that the order has caused hardship to that party. He further states that since petitioner was facing hardship as he had to make arrangements and incur huge amount for marriage of his daughters, which compelled him to make an application before the Trial Court for permission to alienate land measuring 01 Kanal. It is also stated by learned counsel for petitioner that Trial Court by virtue of order dated 21.12.2021 while permitting petitioner to 7 alienate/sell the land measuring 01 Kanal had directed him to submit an undertaking to the effect that if plaintiffs/respondents succeed in the case, the land alienated by him shall be accounted from his share at the time of partition. He also states that immediately after passing of the order by the Trial Court, the petitioner has sold 14 Marlas of land in favour of a third party by execution of sale deed dated 20.01.2022. 16. As is evident from pleadings and submissions of learned counsel for petitioner, that after issuance of order dated 21.12.2021 by the Trial Court, the petitioner has sold 14 Marlas of land in favour of a third party and in this regard, he has also executed a sale deed on 20.01.2022. All this has been done much before passing of order impugned by the Appellate Court and as a result of which a third person/vendee has been introduced in the subject-matter of the suit pending before the Trial Court. 17. In such circumstances, the rest of the land shall not be put to sale and/or alienated by petitioner and impugned order of the Appellate Court to that extent need not be interfered with and order of the Trial Court to that extent is set-aside. However, so far as land already sold by petitioner in view of the Trial Court order is concerned, to that extent only, impugned order of Appellate Court is set-aside. 8 18. It is also made clear here that respondents/plaintiffs shall be free and at liberty, if they choose so, to seek amendment of their plaint and make the third party, in whose favour petitioner has executed sale deed, as a party defendant. 19. Dismissed, accordingly. (VINOD CHATTERJI KOUL) JUDGE SRINAGAR 16.07.2025 Shabroz