116 Supp HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No. 233/2025 CM No.3734/2025 Caveat 1389/2025 Mushtaq Ahmad Magray and Ors. ….. Petitioner (s) Through: Mr. Wajid Haseeb, Adv. V/s Lateef Ahmad Magray & Ors. ….. Respondent(s) Through: Mr. M A Makhdoomi, Adv. with Ms. Shazia, Adv. Coram: Hon’ble Mr. Justice Sanjay Dhar, Judge ORDER 02.07.2025 1. The petitioners, have challenged order dated 28.05.2025 passed by the learned Additional District Judge, Srinagar whereby appeal filed by the respondents/plaintiffs against order dated 25.04.2025 passed by the Sub Judge (Judge Small Causes), Srinagar in application under Order 39 Rule 1 and 2 of Code of Civil Procedure has been modified and the following directions have been issued against the petitioners/defendants: P a g e | 2 CM(M) No. 233/2025 CM No.3734/2025 Caveat 1389/2025 a) That the defendants are directed to furnish an undertaking before the trial court that they shall not alienate any part of the suit property nor shall create any third party interest qua the suit property till final disposal of the case. b) That the defendants shall also mention in the undertaking that they will dismantle any construction undertaken by them during the pendency of the suit at their own risk and responsibility in case plaintiffs/appellants succeed in the main suit. c) That any alienation undertaken by the defendants or their predecessors in interest of the landed estate inhe3rited from common ancestor Mahmood prior to filing of the suit shall be adjusted in their shares which they are entitled in inherit as co sharers on the partition of the entire suit property measuring 131 Kanals and 6 marlas under Khasra No’s 281, 576, 376, 381, 438, 375, 304, 303, 298, 306, 578, 439, 435, 542, 305, 373, 373/1, 299, 305, 375, 580, 301, 372, 579, 299, 460, P a g e | 3 CM(M) No. 233/2025 CM No.3734/2025 Caveat 1389/2025 450, 450/1, 449, 393, 396 (pre settlement) bearing Khewat No’s 1, 2, 6 situated at Moza Soiteng, Lasjan, Srinagar”. 2. Issue notice to the respondents. 3. Mr. M A Makhdoomi, Advocate who is on caveat accepts notice on behalf of the respondents. Caveat is accordingly discharged. 4. Heard and considered. 5. It appears that a civil suit for partition of ancestral property of the parties came to be filed by the respondents/plaintiffs against the petitioners/defendants before the court of learned Sub Judge (Judge Small Causes), Srinagar. Along with the suit, the respondents/plaintiffs also filed an application under Order 39 Rule 1 and 2 of Code of Civil Procedure seeking interim relief to the effect that the defendants except defendant No. 11 to 16 be restrained from creating any third party interest and/or changing nature of the suit scheduled property. P a g e | 4 CM(M) No. 233/2025 CM No.3734/2025 Caveat 1389/2025 6. The learned trial court, after hearing the parties and on the basis of pleadings of the parties, dismissed the application in terms of order dated 25.04.2025 primarily on the ground that the plaintiffs have remained silent for long period of time during which the suit property has changed many hands. The aforesaid order came to be challenged by the plaintiffs by way of appeal before the learned Additional District Judge, Srinagar who vide impugned order allowed the appeal and directed the defendants to furnish an undertaking in terms of the directions quoted hereinbefore. 7. So far as the status of the parties as co-sharers in respect of suit property is concerned, the same from the pleadings of the parties appears, to be an admitted fact. While the defendants claim that predecessors in interest of the plaintiffs have already relinquished their share in respect of the suit property in their favour way back in the year 1960 and the mutation has been attested in their favour pursuant thereto but the plaintiffs deny these facts and they claim that the partition of the suit property has not taken place and no P a g e | 5 CM(M) No. 233/2025 CM No.3734/2025 Caveat 1389/2025 relinquishment of the share has taken place in favour of the defendants. The issue as to whether the plaintiffs have relinquished their share in the suit property in favour of the predecessor in interest of the defendants is a matter of trial. Till such time the said issue is determined, the subject matter of the lis is required to be protected. The learned appellate court, having regard to the fact that the defendants seem to be in possession of the suit property for pretty long time, has rightly in order to protect the subject matter of the lis, directed the defendants to furnish an undertaking that they shall not alienate any part of the suit property nor shall they create any third party interest in the said property. The interest of the plaintiffs has further been protected by asking the defendants to furnish an undertaking that they will dismantle any construction which they may have undertaken during pendency of the suit at their own risk and responsibility but beyond that the undertaking sought by the learned appellate court from the defendants in terms of Clause (c) of the directions, is beyond the relief sought by P a g e | 6 CM(M) No. 233/2025 CM No.3734/2025 Caveat 1389/2025 the plaintiffs in their interim application. The same cannot, therefore be sustained in the law. 8. For the foregoing reasons, the appeal is partly allowed and it is provided that the defendants shall furnish undertaking only in terms of directions (a) and (b) contained in the impugned order passed by the learned appellate court. So far as the direction No. (c) is concerned, the same is set aside It is further provided that any observation made by the learned appellate court on merits of the case shall not influence the trial court while deciding the suit finally. (Sanjay Dhar) Judge SRINAGAR 02.07.2025 Aasif