MST. ZAIBA Vs. GHULAM AHMAD ZARGAR

JUDGEMENT

(1.) The petitioner has challenged order dtd. 13/12/2022 passed by learned Additional District Judge, Budgam (hereinafter referred to as the appellate court), whereby, in an appeal filed against the order of Munsiff, Budgam (hereinafter referred to as the trial court), the respondents(hereinafter referred to as the defendants) have been permitted to raise construction over the suit land subject to an undertaking that they will dismantle the construction in case the petitioner(hereinafter referred to as the plaintiff) succeeds in the suit and at the same time, the defendants have been directed not to create any third party interest in the suit property.

(2.) It appears that the plaintiff has filed a suit against the defendants seeking a declaration that she is entitled to 42 kanals and 10 marlas of land situated at Zooribagh, Budgam. A decree of partition of the suit land measuring 61 kanals along with the decree of possession in respect of the remaining share of 06 kanals and 10 marlas in the suit land has also been sought. The plaintiff has also sought an injunction against the defendants restraining them from interfering in the exclusive possession of the suit property which falls in her share.

(3.) The case of the plaintiff before the trial court was that 61 kanals of land belonging to the predecessor-in-interest of the parties was inherited by her and the defendants as per the law of inheritance. According to the plaintiff, she is a Khana Nisheen daughter whereas proforma defendants are Khana Beeron daughters. It has been pleaded that the plaintiff has inherited two shares from the property of her father and mother respectively measuring 42 kanals and 10 marlas from the suit land measuring 61 kanals. It has been further pleaded that the plaintiff is in exclusive ownership and possession of the aforesaid property but on spot she has possession of only 36 kanals of land whereas the remaining portion of the land is in possession of the contesting defendants No.1 to 6. According to the plaintiff, she asked the contesting defendants to partition the suit land and handover possession of her remaining share to her but they refused. It is also pleaded that the contesting defendants are raising construction on the suit land and are trying to create third party interest.