NOOR ALI Vs. BASHIR AHMED

JUDGEMENT

(1.) The petitioner through the medium of present petition filed under Article 227 of the Constitution of India seeks issuance of writ of certiorari for quashment of order dtd. 28/10/2021, passed by the court of learned Additional District Judge, Jammu. The said court denied the interim relief to the petitioner in the suit.

(2.) The case of the petitioner in the suit is that he along with the defendants is co-sharers in the land measuring 05 kanal05 marlas in khasra no.2319 and 01 kanal 14 marlas falling in khasra no.2320 situate at Kote tehsil Bhalwal, Jammu and has not been partitioned till date. The parties have been in the peaceful possession of the suit property and being held by the parties to the suit together as co-sharers equally. The plaintiff and the defendants in the suit are real brothers. The defendants after the death of the father of the parties intended to start construction on the suit property which compelled the plaintiff to approach the SDM, Jammu (North) with a complaint and the Tehsildar stopped the construction that was being raised by the defendants. The plaintiff approached the Tehsildar for implementation of order but no action has been taken by the Tehsildar when approached. As the defendants continued with the construction, the same has given cause of action to the plaintiff to file the present suit. The prayer in the suit is for restraining the defendants from dispossessing the plaintiff or interfering into his peaceful possession of the suit property to the extent of his share or transfer the property by any mode.

(3.) The written statement is filed by the defendants wherein it is submitted that the defendant No.1 is in possession of 10 kanals 15 marlas of land and out of which 3 kanals 6 ½ marlas falling in khasra no.2319 has been acquired by the National Highway and the compensation awarded was managed to be transferred by the plaintiff in his account and now the defendant is in possession of more than 7 kanals of land in this khasra number. The property consisting of 50 kanals of land in different khasra numbers was partitioned by the father of the parties during his life time. The defendant No.1 being in possession of his own share, he cannot be deprived of his right to raise construction in the land occupied by him. It appears from the record annexed with the file that the plaintiff filed further pleadings in the matter wherein he has more or less reiterated the stand taken in the plaint. The plaintiff has denied that any oral partition has taken place.