COURT OF MUNSIFF/JMIC BUDGAM
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Main File No: 2009/2024
CNR No: JKBG020014102024
Misc Interim Application No. 99/2024
Date of Institution I.A: 12/11/2024
Misc App. Interim C.C: 216/2025
Date of Institution of C.C : 22/03/2025
Date of Decision: 27/06/2025
In the case of:
1. Ghulam Nabi Wani S/o Abdullah Wani R/o Budgam
2. Ghulam Rasool Wani S/o Abdullah Wani R/o Raiyari-Beeru Budgam
3. Mst Sara D/o Abdullah Wani R/o Raiyar-Beeru Budgam
4. Abdul Rashid Wani S/o Late Abdul Aziz Wani R/o Raiyar-Ich,
Budgam
…Plaintiffs…
through Adv J.M Hubi.
V/s
1. Jandad Khan s/o Late Allah Dad Khan R/o Bagh-i-Mehtab, Srinagar.
2. Khalid Jahangir S/o Late Jahangir Khan R/o Bagh-i-Mehtab Srinagar.
3. Asiya Tariq
4. Nafisa Tariq
5. Roheena Tariq
6. Uzma Tariq Daughters of Late Tariq Jahangir Khan
7. Danish Tariqs/o Tariq Jahangir Khan
8. Mst Ashraf Begum W/o Jahangir Khan all residents of Bagh-i-Mehtab
Srinagar.
9. Sahil Khan S/o Muneer R/o Rawalpora Bagh-i-Mehtab, Srinagar
…Defendants…
through Adv Mir Javid, Adv S.A Bhat and Associates.
CORAM: Tasneem Kawoos (KCS Judicial) KCS(J) JK00293
ORDER
1. By virtue of this composite order the court seeks to dispose
off the application for grant of interim relief filed in the
instant suit as well as the application for grant of interim
relief filed by the defendant in the counterclaim. At the outset
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it is important to mention that the order granting the leave for
filing counterclaim is under challenge before the Hon’ble
High Court how however no stay has been granted in the
matter. The court is cognisant of the fact that the decision in
that appeal shall have a direct bearing on this case however
both the counsels argued that since there is an absence of any
stay order and further the lis is to be protected the court
should proceed with the applications for grant of interim
relief. The Court is presently seized of two applications for
grant of interim relief. It is noteworthy that the pleadings in
the main suit and the counter claim substantially overlap,
both parties having raised almost identical issues of fact and
law. Thus, notwithstanding the pendency of challenge to the
counter claim, the application for interim relief can be
effectively adjudicated on the strength of the pleadings in the
main suit alone. Nevertheless, in the interest of
comprehensive, fair, and effective adjudication, the Court
considers it expedient also to take into account the pleadings
contained in the counter claim along with the reply thereto.
Needless to mention that this shall however be subject to the
Orders passed by the Hon'ble High Court in the petition
challenging the Order granting the leave to file counter claim.
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2. Briefly the case of the plaintiff as reflected in the plaint is
that the father of the plaintiffs had purchased land measuring
8 kanals from erstwhile owners; 4 kanals under Survey no
182 min old and new Survey no 948/82 Khewat no. 72 old
new 137 and 4 Kanals under Survey no.182 min new survey
no. 950/82. It is submitted by the plaintiff that were virtue of
the 2 sale deeds from the erstwhile owners the father of the
plaintiffs 1 to 3 and grandfather of the plaintiff no. 4 acquired
title and ownership in the land measuring 8 kanals and the
father of the plaintiffs 1 to 3 and grandfather of the plaintiff
no. 4 started using the land and enjoyed its benefits and after
that the plaintiffs as per their entitlement used their respective
shares. It is further submitted that the father of the plaintiff
no. 1to 3 exchanged land measuring 3 kanals and 3 marlas
from survey no. 182 min with the father of the defendant
no. 1 who exchange land from survey no. 630/223. Same
was done by means of a registered exchange deed. Both the
parties came in the possession of the exchanged land and the
plaintiff started enjoying the rest of the land measuring 4
kanals and 17 marlas. It is for the submitted that at the back
of the plaintiffs and in a clandestine manner the father of the
different no. one mutated the rest of the land in his favour
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under Section 4 of the J&K Agrarian Reforms Act and
mutation under Section 8 what was attested in the year 2010
in favour of the defendants and they made no difference as
the plaintiffs continued to be in the possession of the land
measuring 4 kanals and 17 marlas falling under the survey
no. 182. In 2010 the defendants filed suit against the
plaintiffs wherein they sought permanent injunction against
the plaintiff and defendant no. 1 which was a sponsored
litigation to harass the plaintiffs and receive some
consideration. The father of the plaintiff no. 4 appeared in
that suit which was filed by the defendants and the defendant
no. 1 settled the matter with the father of the plaintiff no. 4
and admitted the fact that the land in question belongs to him
and based on the statements defendants did not prosecute the
suit which resulted in the dismissal for want of prosecution.
The plaintiff submits that after the dispute was over without
any interference the plaintiffs continue to enjoy the land
measuring 4 kanals and 17 marlas. It is further submitted that
the defendants are disputing the title of the plaintiffs and are
trying to dispossess the plaintiff from the suit property. It is
further submitted that the sale deeds have never been
challenged by the defendants and the father of the defendant
4
no. one was never the tenant of the land because the land was
owned by Mst Gulli and Nikka Bhatti from whom the father
of the plaintiff purchased the land in question and valid
exchange deed was also executed. It is also important to
mention that the brother of the defendant no. 1 had migrated
to Pakistan in 1947 and he could not be the tenant of the land
and of complaint was also lodged by the father of the plaintiff
no. 4 in this regard. It is further submitted that the plaintiffs
approached the defendants and requested them to refrain
from causing any interference into the suit property but the
defendants refused to accede to the request of the plaintiffs
and the cause of action accrued in favour of the plaintiffs.
The plaintiffs have also submitted that the plaintiff no. 4 and
his father have filed a counterclaim against the suit of the
different no. 1. It is further submitted that against the
mutation order proceedings are pending before the
Honourable High Court which had been dismissed earlier but
the same have been restored.
3. The defendants have filed Separate written statements. In the
written statement filed by defendant no. 1, it is stated that that
out of the total land measuring 8 kanals, 3 kanals and 3
marlas were exchanged among the defendant no. 1 and Mr.
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Allahdad Khan and the remaining 4 kanals and 17 marlas
were also under the possession of the said Allahdad Khan and
the same were subsequently recorded in his name under the
Section 4 and Section 8 of the J&K Agrarian Reforms Act. It
is submitted that in 2016 the plaintiff no. 4 encroached upon
the suit property prompting the defendant to file a suit for
recovery of possession and while the suit was pending, a
compromise was reached and the plaintiffs received some
consideration and gave up their claim over the property. It is
submitted in the written statement that it was only after due
payment of the levy that Allahdad Khan was recorded as the
owner of the 4 kanals and 17 marlas and the defendant no. 1
and all the defendants are the lawful owners and possessors
of the property in question and they have been in the
uninterrupted and peaceful possession of the property. It is
further submitted that the plaintiffs are no longer in
possession of the suit land nor are they enjoying or using it
and it is under the lawful ownership and possession of the
defendants particularly defendant no. one who has taken all
the measures to protect his rights including obtaining a
demolition and eviction order against trespassers. It is further
submitted that although a deed of exchange was executed but
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it was only vis a vis 3 kanals and 3 marlas of the land and the
rest of the 4 kanals and 17 marlas remained under the
occupation of the Allahdad Khan by virtue of Section 4 and
Section 8 of the Jammu and Kashmir Agrarian Reforms Act.
It is further submitted that though the father of the plaintiff
no. 4, plaintiff No. 1 and 2 had illegally encroached upon the
suit land and the defendant no. 1 was constrained to file a suit
for the recovery of possession and during the pendency of
that suit the plaintiffs handed over the possession of the suit
property to the defendant no. 1 under a duly executed
compromise. The defendant submits that initially the father of
the plaintiff no. 4 refused to vacate a portion of the suit
property where he had constructed a tin shed however after
receiving the sum of ₹4,00,000 from defendant no. 1 he
vacated the portion and removed the tin shed. Two formal
agreements were there after executed. It is further submitted
that the mutation under the Agrarian Reforms Act has been
attested and the subsequent transactions are lawful
transparent registered and the Suit land has been under the
uninterrupted and legal possession of the defendant no. 1 and
his predecessors and therefore the plaintiffs assertion that
they enjoyed the suit property without interference after the
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dispute was over in 2018 is wrong. It is further submitted that
the suit land in question is exclusively owned and possessed
by the defendant no. 1, it is fully fenced and provided with
active government provided water and electricity connections
which is recorded in the name of the defendant no. 1. The
defendant submits that the relevant revenue records and the
orders of the competent courts affirm that the defendants are
in the lawful ownership and possession of the property and
the plaintiffs are the illegal trespassers. The written statement
also gives a complete detail of the criminal proceedings
which are pending between the parties.
4. In the written statement filed by the defendants 2 to 8 it is
submitted that the written statement filed by defendant no. 1
is adopted and some additional grounds of defence have been
raised. The additional grounds are that in 2024 the plaintiff
attempted to encroach on a portion of the land and therefore
the defendants approached the SDM upon which the SDM
directed site visit and ordered the plaintiff no. 4 to appear
before the court and a complaint was lodged and subsequent
to that complaints SHO was directed to investigate the matter.
An implementation order was passed by the court of the
Honourable Special Mobile Magistrate which was enforced
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by the SHO and the demolition of the illegal structure raised
by the plaintiffs was carried on.
5. It is pertinent to mention that the defendants have filed a
counter claim against the plaintiffs wherein they claim to be
the owners in possession of land measuring 4 kanals and 17
marlas in the said Survey No’s and claim to have received the
same under the provisions of the Agrarian Reforms Act under
mutation no. 1042 and 1066. It is further submitted that the
appeals filed by the plaintiffs against the mutations have been
dismissed. It is also mentioned that the plaintiffs have no
right or interest in the subject matter of the counter claim and
the defendants I. E: counter claimants are in possession of the
same however in 2016 the plaintiff had encroached upon a
portion and a suit was filed before the court of the Worthy
Special Mobile Magistrate Budgam and during the
proceedings of that suit, a compromise was reached in which
the possession of the suit property was handed back to the
defendants and the plaintiff had accepted a consideration
amount.
6. It was submitted that due to inadvertent error the said suit
was not withdrawn however thereafter the defendants
withdrew the same. It is further submitted that the plaintiffs
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after joining hands in order to demand extra money from the
defendants have started causing illegal interference into the
peaceful possession of the defendants over the subject matter
of the counterclaim and thus have constrained the defendants
to approach several law enforcing agencies for the protection
of their legitimate rights. It is submitted that while
encroaching a portion of the subject matter the plaintiffs have
damaged some portion of the suit property and hence the
defendants claim damages. Accordingly they have sought
injunction and in the application for grant of interim relief
they have sought temporary restraint upon the plaintiffs.
7. In the reply to the counterclaim the plaintiff submit that the
Alamgir Khan is an evacuee and a mutation under Section 4
and 8 of Agrarian Reforms Act cannot be attested in his
favour. Further it is stated that the defendants have not fenced
the suit land and the illegal fencing was done by them when
they misused the order of the Worthy Special Mobile
Magistrate and police also extended their help. It is submitted
that defendant no. 1 has filed a suit for recovery of possession
of the suit property which was withdrawn by him and no
liberty was given to him to file fresh. Hence the present
counter claim is not maintainable and the structures which
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are existing on the land are on the 3 kanals and 3 marlas
which are admittedly in the possession of the plaintiffs. It is
again submitted that the mutation under Section 4 and 8 of
the Agrarian Reforms Act is under challenge though
proceedings were earlier dismissed in default however
restoration has been filed in the matter. It is submitted that the
plaintiffs are in possession of the suit property and no
compromise has been executed between the parties and the
defendants have withdrawn the suit before the Worthy
Special Mobile Magistrate at their own risk. By filing a suit
for recovery of possession the defendants have admitted the
possession of the plaintiff. It is submitted the Defendant no. 1
has never been in the exclusive possession of the land
because the land is situated at a village and the plaintiffs do
not reside there and they have no exclusive control about the
property.
8. Material Placed on record by Plaintiff:
Registered gift deed which shows erstwhile owners Mst Gulli
and Nikka Bhari transferred suit property (8 kanals) to
predecessor of Plaintiffs (father of Plaintiff 1 to 3 and
grandfather of Plaintiff 4).
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Registered exchange deed to the extent of 3 kanals and 3
marlas in said survey no.
Both these documents are admitted by Defendants ( Counter
claimants).
9. Material Placed on Record by Defendants;
Revenue records evidencing the mutation under Section 4
and Section 8 of Agrarian Reforms Act of land measuring 4
kanals 17 marlas in Survey no. 950/182 and 949/182 favour
of Jandad Khan, Alamgir, Tariq Jahangir, Khalid Jahangir,
Ashraf Begum (17 marlas in Survey no. 950/182 and 4
kanals in Survey no. 949/182) .
Notarised Compromises executed between father of Plaintiff
4 and Defendant 1 and Between Plaintiff 1, 2 and Defendant
1.
Girdawari of 1969-70 : showing land sold by Nika Bhati to
Abdullah Wani in cultivation of AllahDad Khan ( 3 kanals 3
marlas in Survey no. 949/182).
Girdawari of 1972-75 showing land measuring 4 kanals in
Survey no. 950/182 sold by Mst Gulli to Abdullah Wani.
Girdawari of 1995-96; Survey no. 949/182 17 marlas sold by
Nika to Abdullah Wani in cultivation of Allahdad Khan. In
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same Survey no. 3 kanal and 3 marlas sold by Nika to
Abdullah Wani exchanged with Allahdad Khan. In Survey
No. 950/182 Gulli has sold 4 kanal to Abdullah Wani, same is
under cultivation of Allahdad Khan.
Girdawari of Year 2007; same as Girdawari of 1995-96.
Jamabandi Report of 2020-2021: 4 kanals in 949/182 and 17
marlas in 950/182 in ownership and possession of Alamgir,
Jandad and other defendants.
With the consensus of Ld Counsels for both parties, a
commissioner was sent on spot vide Order dated 27/06/2025
and report submitted the suit property appears to be in
possession of Defendants.
10. Following factual foundational arises hence;
Both Plaintiffs and Defendants admit Defendants are owners
in possession of land measuring 3 kanals and 3 marlas in
Survey no. 182 min.
The dispute is as regards 4 kanals and 17 marlas in Survey
no. 182 min.
According to records, exchange of 3 kanals and 3 marlas took
place in 949/182, remaining 17 marlas remained in name of
Abdullah Wani though cultivated by Allahdad Khan. Land
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measuring 4 kanals in Survey no. 950/182 recorded in name
of Abdullah Wani under cultivation of Allahdad Khan. Both
Survey No.s are now recorded as Survey No. 182 min.
According to fresh records defendants are owners in
possession of 4 kanals and 17 marlas; 4 kanals in 949/182
and 17 marlas in 950/182 in ownership and possession of
Alamgir, Jandad and other defendants.
11. Heard Ld Counsels for Plaintiff and Defendant (Counter
Claimant). Learned Counsel for Plaintiff argued that the
Defendant is trying to give an impression of possession over
the entire suit property when actually he’s in possession of
only 3 kanals and 3 marlas under a valid exchange deed.
Learned Counsel for Defendant argued that the entire revenue
record is in his favour and same is corroborated by the
Commissioner’s Report. He further argued that the suit for
recovery of possession stands dismissed as withdrawn and
same can’t be relied on to infer that defendants are out of
possession since during the pendency of that suit some
settlement was done and defendants were put in possession.
Further he raised a question on maintainability of the suit of
Plaintiff in terms of bar under Agrarian Reforms Act and
submitted that a preliminary issue be struck as the claim of
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plaintiff is exclusively triable by a revenue court. Ld Counsel
for Plaintiff argued that the counter claim of defendants be
subject to same parameter of maintainability as and when the
issue is struck.
12. Heard and Perused.
LAW ON THE POINT;
The principle of law relating to temporary injunction during
the pendency of the suit is well recognised in the decision of
the Supreme Court in Dalpat Kumar versus Prahlad Singh
AIR 1993 SC SC 276. The relevant portions of the
observations of the Supreme Court in the case are extracted
here under; It is settled law that the grant of injunction is a
discretionary relief. The exercise thereof is subject to the
court satisfying that. There is a serious disputed question to
be tried in the suit and that an act on the facts before the court
there is probability of his being entitled to the relief asked for
by the plaintiff or defendant. The courts interference is
necessary to protect the party from the species of injury. In
other words irreparable injury or damage would ensue before
the legal right would be established at trial. That the
competitive hardship or mischief or inconvenience which is
15
likely to occur from withholding the injunction will be
greater than that would be likely to arise from granting it.
The Supreme Court further observed; Prima facie case is not
to be confused with prima facie title which has to be
established on evidence at the trial. Only prima facie case is
a substantial question raised bona fide which needs
investigation and a decision on merit. Satisfaction that
there is a prima facie case by itself not sufficient to grant
injunction. The court further has to satisfy that the non
interference by code would result in irreparable injury to the
party seeking relief and that there is no other remedy
available to the party except one to grant injunction and he
needs protection from the consequence of apprehended injury
or dispossession. Irreparable injury however does not mean
that there must be no physical possibility of repairing the
injury but means that the injury must be a material one one
that cannot be adequately compensated by way of damages.
The 3rd condition also is that the balance of convenience must
be in favour of granting injunction the court while granting or
refusing to grant injunction should exercise sound judicial
discretion to find the amount of substantial mischief or injury
16
which is likely to be caused to the parties if the injunction is
refused and compare it with that it is likely to be caused to
the other side if the injunction is granted. If on weighing
Competing possibility or probabilities of likelihood of injury
and if the court considers that pending the suit the subject
matter should be maintained in status quo and injunction
would be issued. Thus the court has to exercise it’s sound
judicial discretion in granting or refusing the relief of ad
interim injunction pending the suit.
In subsequent paragraph the Supreme Court further observed
the phrases prima facie case balance of convenience and
irreparable loss are not rhetoric phases for incantation but
words of width and elasticity to meet myriad situations
presented by man’s ingenuity in given facts and
circumstances but always hedged with sound exercise of
judicial discretion to meet the ends of justice.
13. Analysis:
Prima Facie Case:
Mere institution of a previous suit for recovery of possession
cannot ipso facto be construed as an admission on the part of
17
the defendants that they were out of possession. The record,
on the contrary, indicates that the defendants are in settled
possession of the suit property. They have specifically
pleaded that they were put back into possession pursuant to
an out-of-court settlement, under which the plaintiffs—who
had earlier encroached upon their property—accepted
consideration and restored possession. The mutations attested
in their favour under the Agrarian Reforms Act create a
strong presumption in law regarding possession which the
plaintiffs have not been able to successfully rebut at this
stage. The attestation of mutations under Sections 4 and 8 of
the Jammu & Kashmir Agrarian Reforms Act in favour of the
predecessors of the defendants carries with it a distinct and
heightened evidentiary weight. Unlike ordinary fiscal entries
made in the revenue record, which are primarily maintained
for the purposes of assessment of revenue and taxation,
mutations under the Agrarian Reforms legislation are not
mere clerical annotations but the outcome of a statutory
scheme specifically enacted to restructure agrarian relations
in the State. Under Section 4 of the Act, ownership rights of
absentee landlords were extinguished and such land was
vested in the State, with only the cultivating possession of the
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tiller being recognised. Section 8 further provided for the
conferment of ownership rights upon the actual tillers of the
soil upon payment of the prescribed levy. Thus, an entry
under Sections 4 and 8 is not simply declaratory of
possession but is constitutive of rights, embodying a transfer
of title from the erstwhile landlord, first to the State, and
thereafter to the tenant in actual cultivation.
14. In this backdrop, the fact that the suit land stood mutated in
favour of the defendants’ predecessors under these provisions
strongly suggests that the competent authority recognised
them as the actual cultivators in possession at the relevant
time. The subsequent revenue record showing the land as
“khud-kasht” (self-cultivated) in the name of the defendants
further fortifies the presumption that they are in settled
cultivating possession of the suit land. These statutory
mutations, therefore, create a prima facie indicium of
possession, which cannot be equated with ordinary fiscal
entries liable to frequent manipulation.
15. It is pertinent to emphasise that at this interlocutory stage,
the Court is not adjudicating upon the validity or legality of
the said mutations, particularly as proceedings challenging
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them are admittedly pending before the competent forum.
However, unless and until they are set aside by a competent
court of law, these mutations and the consequent revenue
entries subsist and operate in favour of the defendants. The
presumption flowing from such entries, read with the
statutory background under which they were attested, cannot
be lightly brushed aside. Accordingly, for the limited purpose
of deciding the interim applications, these entries lend
considerable support to the defendants’ case of possession,
even while the rival claims of title and validity of mutations
remain to be adjudicated upon at trial. At the same time, it
cannot be overlooked that the plaintiffs have placed on record
registered sale deeds and an exchange deed which, prima
facie, clothe them with a title that the law recognises and
protects. While the defendants may presently appear to be in
settled possession as reflected in the statutory mutations, the
plaintiffs’ claim is not a frivolous one but is anchored in
legally cognisable title. The competing claims thus bring into
sharp focus the need to preserve both aspects—title asserted
by the plaintiffs and possession asserted by the defendants—
until the matter is adjudicated finally on merits. The Court is
therefore tasked with balancing these rival equities at the
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interlocutory stage, ensuring that the plaintiffs’ title is not
rendered illusory and at the same time the defendants’ settled
possession is not unsettled by premature interference.
16. The plaintiffs do place reliance upon the registered sale
deeds in favour of their ancestors, which are undoubtedly
strong indicia of title, but even those are not denied by the
defendants. The stand of the defendants, however, is that
subsequent mutations under statutory provisions constitute a
later legal development vesting title and possession in them.
The plaintiffs’ challenge to such mutations is still sub judice
and they have not brought any material to prima facie
dislodge the presumption operating in favour of the
defendants.
17. It is an admitted position that land measuring 3 kanals and 3
marlas stands exchanged and is in possession of the
defendants. The grievance of the plaintiffs is that the
defendants are utilising this admitted possession to create an
impression of possession over the entire survey no., including
the disputed 4 kanals and 17 marlas. However, the revenue
record presently on file suggests that the defendants are
recorded in possession of the said 4 kanals and 17 marlas as
well. The earlier suit for possession filed by the defendants
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having been withdrawn unconditionally cannot be read as an
admission against them, absent any conclusive finding of a
competent court on the factum of possession.
[Link] the above backdrop, there are clearly strong triable issues
involved both in the suit and in the counter-claim.
Preservation of thelis, therefore, demands that status quo be
maintained. On the material available at this interlocutory
stage, the court is tentatively inclined to accept the position
that the defendants appear to be in physical possession of the
property. This, however, is only a tentative observation for
the limited purpose of deciding the applications for interim
relief and shall not in any manner prejudice or affect the final
adjudication of the matter on merits.
19. Balance of Convenience
The balance of convenience in the present matter leans in
favour of protecting the party found in settled possession at
the interlocutory stage. Revenue entries, mutations under the
Agrarian Reforms Act, and even the report of the local
commissioner prima facie indicate that the defendants are in
possession of the suit land. The plaintiffs, though armed with
registered sale deeds in favour of their ancestors which
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support their claim of title, have not been able to demonstrate
that they are in settled possession of the 4 kanals and 17
marlas presently under contest. In such a situation, permitting
the plaintiffs to disturb the defendants’ possession would
cause a greater hardship and would risk unsettling the
existing state of affairs. The balance of convenience,
therefore, tilts towards preserving the possession of the
defendants until the rights of the parties are conclusively
adjudicated upon.
20. Irreparable Injury
The element of irreparable loss also stands satisfied in favour
of maintaining status quo. Possession of immovable property,
once disturbed, gives rise to a multiplicity of proceedings and
may cause irreversible injury which cannot be adequately
compensated by damages. If interim protection is not
afforded, the party in possession risks forcible dispossession,
leading to a fait accompli before trial. On the other hand, if
the plaintiffs ultimately succeed in establishing their superior
title, the law affords them sufficient remedies including
recovery of possession. Thus, refusal to preserve the current
possession would cause irreparable injury to the defendants,
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whereas the plaintiffs suffer no comparable prejudice if status
quo is maintained during the pendency of the suit.
[Link] these observations, Plaintiffs are directed not to
interfere with the possession of Defendants over suit property
and the Defendants are directed to maintain status quo i.e not
to change the nature of the suit property and not to create any
third party interest in the same till the disposal of the main
case. This shall be read in the backdrop of findings recorded
herein before. Applications accordingly disposed off. Be
made part of main file.
ANNOUNCED MUNSIFF/JMIC
27/08/2025 BUDGAM
TASNEEM Digitally signed by
TASNEEM KAWOOS
KAWOOS [Link] +05'30'
Date: 2025.08.27
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