ALI DAR Vs. SUBHAN GANI

JUDGEMENT

(1.) THIS revision is directed against an order dated 30 -6 -1978 of the District Judge, Baramulla, allowing the appeal of the respondents against the order of interim injunction passed in a suit for declaration and injunction by the Sub Judge Handwara, on .11 -4 -1978.

(2.) TO put in brief the facts of the case are: one Wazir Baij Nath who is recorded as one of the owners of the land along with his minor children and his wife Smt. Kanchan Devi executed a contract for sale of the land as mentioned in the agreement on 20 -12 -1976 in favour of Subhan Ganai and ors. This agreement did not culminate in the sale because of some dispute having arisen between the respondents and Baij hath. After the execution of this agreement, Baij Nath negotiated and settled another bargain with the petitioners on 4 -1 -1977 and executed a new document of contract for sale in favour of Ali Dar and ors. the petitioners. In that document he affirmed that the plaintiffâ„¢s petititioners were in possession of the land in question. This led to a dispute between the parties which culminated in proceedings under Section 145 Cr. P. C. The property was attached on 28 -12 -1976 by the Executive Magistrate, Handwara, and it remined with the Supardar till 10 -3 -1978 when in the course of the reference made to the High Court proceedings under Section 145 Cr P. C. were quashed. But no consequential order was made as regards the subject of dispute as to whom it should revert and who should take possession of it. In the mean time counter suits for declaration and injunction were instituted, first by the petitioners and then by the respondents in the court of the Sub Judge, Handwara, both sides claimed that they were in possession of the suit property and requested the trial court to issue temporary injunction in their favour. The lower court on a consideration of the matter accepted the prayer of the petitioners and issued temporary injunction against the defendants respondents i.e. the party of Subhan Gani and ors The court, however, observed that this order of injunction would not cover 7 Kanals and 13 Marlas of land which Wazir Baij Nath had sold to some other persons and the plaintiffs petitioners were not in possession of the same. Aggrieved by the order, the respondents namely Subhan Gani and ors filed an appeal before the District Judge, Baramulla, who set aside the order observing that the possession was a disputed proposition and that it could not be said With any amount of certainity as to which party was in possession of the suit property. Accordingly it was proper for the trial court to have struck an issue on possession and then pass an order on the application for temporary injunction. The learned Judge accordingly sent the case back to the trial court for disposal of the application afresh in the light of the observations made in the order of remand. It is against the order of the District Judge that the present revision petition has been filed,

(3.) I have heard the elaborate arguments of the learned counsel for the parties