MIR ARIF Vs. MUGHLI BEGUM

JUDGEMENT

(1.) This appeal arises out of order dtd. 18/7/2014, (hereinafter referred to as impugned order), passed by the Principal District Judge, Badgam (hereinafter referred to as trial Court), by virtue of which the predecessor in interest of the appellants i.e. defendant No.1and respondent No.5, i.e. defendant No.2 before the trial court were restrained from causing any sort of interference into the possession of the predecessor in interest of the respondent Nos.1to 4 i.e. the plaintiff before the trial court, over the land measuring 25 kanals, comprised under different survey numbers, 1089 min. (3kanals 8 Marlas),1091 min. (5 kanals and 7 marlas),1901/1891/1091 min. (12 marlas), 1901/1091/1090 min. (8 marlas), 1904/1894/1855/1092 min. (3 kanals and 12 marlas), 1123 min. (2 kanals and 9 marlas), 1124 min. (2 kanals and 16 marlas), 1125 min. (10 marlas), 1130 min. (1 kanal and 12 marlas ), 1131 min. (2 kanals and 5 marlas) and 1132 min. (19 marlas), situated at village Kralpora, Tehsil Chadoora, District Badgam.

(2.) It needs to be noted that both the original appellant, i.e. defendant No.1 in the suit and respondent No.1 i.e. the original plaintiff in the suit, have expired and their legal representatives have been brought on record vide orders dtd. 23/02/2017 and 18/05/2018 passed in MP No.1/2017 and MP.1/2018 respectively.

(3.) The order dtd. 18/7/2014has been assailed primarily on the ground that the learned trial court, while deciding the application filed by the predecessor in interest of the respondent Nos.1-4 for grant of interim relief, has virtually conducted a mini trial in the case and the material evidence has been completely ignored. It is stated that no person of ordinary prudence would make a gift of his property to a stranger and the story of Hiba bil Iiwazhas been negated by the contents of the plaint itself and the mutations also have been found to be a fraudulent exercise by the Enquiry Officer, resulting in to setting aside of the same by the Financial Commissioner (Revenue). In nut shell, case of the appellant is that the predecessor in interest of the respondent Nos. 1to 4 had no case for grant of interim injunction and also no balance of convenience was in his favour as well and further grant of injunction has resulted in more injury to the predecessor in interest of the appellants, who was the owner in possession of property i.e. orchard in dispute. Besides these objections, certain objections with regard to the maintainability of the suit have been raised in the present appeal, those may not be relevant for the purpose of disposal of the appeal.