STATE OF J&K Vs. AB RASHID SARAF

JUDGEMENT

(1.) THIS motion of revision is directed against the order of learned Sub -Judge, Baramulla recorded on 22 -5 -2001. It arises out of those circumstances which are summerised as:

(2.) ON 6 -2 -1998 the respondent/plaintiff came to institute a suit for mandatory injunction against the petitioners/defendants before the court of learned Sub -Judge, Baramulla stating that land measuring about 16 marlas comprising on survey No. 1622 located at one side of national highway (Baramulla -Uri road) The two sides surrounded by the property land of the respondent/plaintiff and on four sides by link road located at Khanpora, Baramulla has been in his continuous possession for last number of years and he uses it for the dumping of building material. The respondent approached petitioner/defendants with a prayer for his allotment in his favour who after inspecting this land asked the respondent/plaintiff to arrange one Kanal of land in security zone at Khoja Bagh, Baramulla in exchange of this land. Pursuant to that the respondent/ plaintiff purchased three Kanals of land at Khoja Bagh, Baramulla and offered one Kanal of land out of it in exchange for the suit land measuring 16 Marias. That this purchased land by the respondent/plaintiff was inspected by the petitioners/defendants and found it suitable for the residential purposes. That in the meanwhile few persons got interested in the said land, approached petitioners/defendant No.8 at the behest of other petitioners/defendants for its allotment in their favour for the construction of a mosque. That after this the petitioner/defendants have been hesitating to approve the allotment of the suit land in exchange of the land purchased and offered by the respondent to them and the petitioner/defendant No.2 has entered into conspiracy with other petitioners/defendants for evicting respondent/plaintiff from the suit land. Alongside to this suit the respondent/plaintiff came to file an application for the issuance of ad -interim injunction. On consideration of this application the learned trial court on 12.2.1998 came to pass status -quo order with respect to the suit land subject to objection of other side and came to adjourn this petition to 17.2.1998. On 17.2.1998 learned counsel for the plaintiff was present and the defendant 1,6,7and 8 caused their appearance through their counsels and the application came to be adjourned to 18.3.1998, On this day the learned counsel for the plaintiff was present and the respondent 1,2,3,6,7 and 8 also caused their appearance through their counsels and the application was adjourned to 21.4.1998 on this date nobody appeared in the case which came to be adjourned to 2.5.1998, on this date the learned counsel for the plaintiff was present and nobody caused appearance on behalf of the defendants. As a result of which the learned trial court came to pass an order for making this application part of main file ostensibly after making said order absolute. During the pendency of this application with the consent of the parties commissioner came to be appointed by the trial court. The commissioner so appointed inspected the suit land in presence of the respondent/plaintiff and the learned counsel for the petitioner defendants 1 to 4, 6 and 7as the said report bear their signatures, reported that on inspection of the suit land he found respondent/plaintiff in the exclusive possession of the suit land and the same is fenced around. On 4.2.1999 the respondent/plaintiff approached again to the trial court with the complaint that the petitioner/defendants has started to disturb the status -quo order as passed on 12.2.1998 and sought police protection in the matter. With respect to this application the trial court came to repeat the order for the maintenance of status -quo as on 12.2.1998 with a direction to Nazir of the court for service of this order on the petitioner/defendant. On 10.5.2001 the respondent/plaintiff again approached the trial court with an application, stating therein inter -alia that while the order of status -quo was in force few persons who wanted their impleadment as party in the suit demolished the fencing existing on the land and sought its permission to raise fencing around the suit land for the restoration of status -quo on spot as on 12.2.1998 and also sought police protection in the matter. This application came to be allowed by the trial court on 22.5.2001, whereby the respondent/plaintiff came to be allowed to raise the fencing around the suit land for the maintenance of status -quo ante as it existed on 12.2.1998 subject to an undertaking to the effect that in case he fails in suit he will remove the fencing so raised on the spot at his own cost. The police also came to be directed to provide necessary protection to the plaintiff/respondent for carrying out the raising of said fencing around the suit land. This order of the trial court is impugned in this motion of revision.

(3.) FEELING aggrieved by the impugned order the respondents/defendants have preferred the motion of revision in hand, wherein, it is inter -alia maintained that the order impugned is bad in law and has been recorded by the trial court in exercise of jurisdiction not vested in it by law.