MOHAMMAD SHABAN WANI Vs. JANA

JUDGEMENT

(1.) In this appeal, Order dtd. 22/2/2021, passed by Principal District Judge, Budgam, whereby the court of Principal District Judge, Budgam, in a civil suit titled as Mst Jana v. Mohammad Shaban Wani and others, has restrained defendants before it, i.e., present appellants and respondents 2 to 5, from alienating, creating any third party interest or changing the nature of the suit property till final disposal of the main suit, is under challenge on the grounds mentioned therein.

(2.) I have heard learned counsel for parties and considered the matter.

(3.) Learned senior counsel appearing for appellants, after making submissions with regard to facts of the case, has submitted that in view of the facts and circumstances of the case the Trial Court could not have passed the impugned order of injunction. He contends that succession with respect to the property in question opened in the year 1954, when Ahmad Wani passed away and it is after more than 66 years, i.e., in October 2020, that respondent no.1 instituted a suit, claiming that property is joint and this aspect of the matter has been ignored by the Trial Court. It is also stated that the Trial Court had ignored that within the period of 66 years mutation was effected in the year 1960 and 1973 and none of the parties questioned these mutations either before revenue authorities or otherwise and that existence of mutations clearly establish that appellant no.1 was in possession of whole property to the exclusion of respondent no.1 and his other sisters. It is also contended that the Trial Court has lost sight of the facts and legal position that claimant to property of late Ahmad Wani at no point of time right after 1954 have claimed their share in the property and on the contrary, appellants had established prima facie that sharing was done between appellant no.1 and respondent no.1 in accordance with customary law as was prevalent at that point of time which law finally and conclusively determined rights of parties.