S. No.138 Suppl List ,,,HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CM(M) No.282/2025 Abdul Majeed Mir and Ors …..Petitioner(s) Through: Mr.Sami Sabir Lone, Advocate. V/s Ali Mohammad Mir … ..Respondent(s) Through : Mr. G.A.Lone, Advocate with Mr. Mujeeb Andrabi, Advocate CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 30.07.2025 1. The petitioners through the medium of present petition have challenged order dated 25.06.2025, passed by learned Principal District Judge, Kupwara (hereinafter “the Appellate Court), whereby the appeal filed by the respondent against order dated 13.12.2024 passed by learned Sub Judge, Kupwara has been allowed and the aforesaid order has been set aside. 2. Issue notice to the respondent. 3. Mr. G.A.Lone, Advocate, who is on caveat, accepts notice on behalf of the respondent. 4. Heard learned counsel for the parties and perused record of the case. CM(M) No.282/2025 2 | P a g e 5. It appears that the respondent (hereinafter “the plaintiff”) has filed a suit for declaration, possession and permanent prohibitory injunction against the petitioners (hereinafter “the defendants”) before the Court of learned Sub Judge, Kupwara (hereinafter “the trial Court”). In the suit the plaintiff has claimed that he is the rightful owner of land covered by Khasra No.1233/362 min measuring 17 marlas and the land covered by Khasra Nos.364 (02 kanal), 366 (03 kanal 05 marlas), 365 (02 kanal) and 452 (08 marlas) situated at revenue village Cherakote Tehsil Kupwara, which according to the plaintiff is his ancestral property. It has been further pleaded that the plaintiff had fallen down from the top floor of his residential house which has rendered him disabled and bed ridden. It has been pleaded that due to illness of the plaintiff he is facing threat of encroachment of the suit land by the defendants, as, according to him, the defendants have mutilated the revenue record with a design to oust and exclude the plaintiff from the suit property. It has also been pleaded that the defendants are relatives of the plaintiff and on their request he allowed them to use the suit property for some months as kitchen garden on a bonafide belief that they will restore the possession of the suit property after expiry of the season in the month of October/November, 2021. It has been further pleaded that the plaintiff approached the defendants and CM(M) No.282/2025 3 | P a g e requested them to vacate the suit premises and restore its possession to him but they did not pay any heed. 6. On the basis of the aforesaid pleadings, the plaintiff sought a decree of declaration that he may be declared as rightful owner having right to retain and possess the suit property. A decree for eviction against the defendants has also been sought. Besides this, a permanent prohibitory injunction restraining the defendants from causing any sort of interference with the suit property has been sought by the plaintiff. 7. It appears that the defendants contested the suit by filing their written statement, in which they claimed that the suit is barred by time and that there is no cause of action in favour of the plaintiff. It has been pleaded by the defendants that whole of the suit land is not recorded in the name of the plaintiff. According to the defendants only 17 marlas of land in Khasra No.1233/362 min is recorded in the name of the plaintiff as his share and rest of the suit property is in the name of the defendants which has fallen to their share. It has been pleaded that the plaintiff and his brother have sold their share to the defendants long back and that the said land is in their rightful ownership and possession since long. 8. Learned trial Court after hearing the parties dismissed the application of the plaintiff under Order 39 Rule 1 and 2 of CPC CM(M) No.282/2025 4 | P a g e by holding that the plaintiff does not have a prima facie case in his favour. Accordingly, vide order dated 13.12.2024 passed by the learned trial Court, the application of the plaintiff for grant of interim injunction was dismissed. However, learned trial Court at the same time restrained the defendants from alienating the suit property till final disposal of the suit. 9. The aforesaid order came to be challenged by the plaintiff by way of an appeal before learned Principal District Judge, Kupwara, who vide impugned order dated 25.06.2025 allowed the appeal and set aside order dated 13.12.2024 passed by the learned trial Court. It was further directed that the defendants be restrained from causing any interference with the suit property and from raising any construction or making any alteration or from creating third party interest or from changing the existing nature and character of the suit property until the final disposal of the main suit. 10. The petitioners/defendants have challenged the impugned order passed by the learned Appellate Court on the grounds that the defendants have set up a new case before the Appellate Court, which could not have been entertained. It has been further contended that during pendency of the suit the plaintiff had filed an application for amendment of the plaint before the trial Court and without waiting for decision of the said CM(M) No.282/2025 5 | P a g e application it was not open to the Appellate Court to take into consideration the material which was not before the trial Court at the time of passing of order dated 13.12.2024. It has also been contended that the impugned order passed by the learned Appellate Court is based upon incorrect appreciation of the material on record. 11. A perusal of the impugned order passed by the learned Appellate Court reveals that alongwith the memo of appeal the plaintiff has placed on record documentary evidence including mutation and registered sale deed dated 01.05.1973 to demonstrate his ownership and possession over the land falling under Khasra No.362, now Khasra No.1233/362 measuring 17 marlas. The learned Appellate Court framed an opinion that the plaintiff is owner in possession of aforesaid land measuring 17 marlas falling under Khasra No.1233/362, and as such, there is a prima facie case in favour of the plaintiff. Accordingly, the impugned directions came to be issued against the defendants restraining them from causing any interference in the suit property, besides restraining the defendants from raising any construction, changing nature and character of the suit property and creating third party interest therein. 12. It seems that the learned Appellate Court while passing the impugned order has not taken into account the admission CM(M) No.282/2025 6 | P a g e made by the plaintiff in the plaint that he has permitted the defendants to use the suit property by delivering possession thereof to them. Thus, even if it is assumed that the plaintiff is owner of the suit property, still then he is admittedly out of possession of the same. It is for this reason only that the plaintiff has sought a decree for possession of the suit property against the defendants. 13. It is a settled law that a person who is not in possession of the suit property cannot seek an injunction against a person who is in possession of the property, with a view to restrain him from interfering in the property. The direction of the learned Appellate Court to this extent is perverse and grossly illegal. The same cannot be sustained in law. 14. So far as other directions passed by the learned Appellate Court whereby the defendants have been restrained from raising any construction on the suit property and have been further restrained from creating third party interest in the suit property are concerned, the same are necessary for preserving the subject matter of the lis, because the documents on record prima facie show that the plaintiff is owner of the suit property. Therefore, to that extent the impugned order passed by the Appellate Court cannot be interfered with. CM(M) No.282/2025 7 | P a g e 15. For the foregoing reasons, the petition is partly allowed and impugned order dated 25.06.2025 passed by the learned Appellate Court to the extent of restraining the petitioners/defendants from interfering in the suit property is set aside. However, it is provided that the defendants shall not create any third party interest in the suit property and they shall not raise any construction over the same till final disposal of the suit. 16. The petition stands disposed of accordingly. (SANJAY DHAR) JUDGE SRINAGAR 30.07.2025 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Sarveeda Nissar I attest to the accuracy and authenticity of this document every page at bottom left side 01.08.2025 10:43