J&K&L High Court Deprecates Passing Of Status Quo Orders In Property Disputes Without Tentatively Determining Party In Possession

Justice Sanjay Dhar held that while passing an interim order directing the parties to maintain status quo, the trial courts should in no uncertain terms record a tentative finding as to which of the parties is in possession of the disputed property. The bench observed,

"It has become a routine for the trial courts to pass status quo orders without specifying as to which of the parties to the dispute is in possession of the suit property. Such orders tend to invite applications for initiation of contempt proceedings as also the applications for implementation of the court orders by the police. Without there being any opinion as regards the possession of the suit property, even the police finds it very difficult to implement such orders. This situation generally results in chaos and confusion."

The observations were made while hearing a plea invoking the jurisdiction of the Court under Article 227 of the Constitution for setting aside order passed by Principal District Judge, Budgam, whereby in a Miscellaneous Appeal filed against order of Munsiff, Chadoora, the petitioner was temporarily restrained from causing any interference in possession of the respondent over the suit property.

The facts of the instant were that the Respondent/Plaintiff had filed a suit for permanent prohibitory injunction against the Petitioner/Defendant before the Court of Munsiff, Chadoora wherein he sought permanent injunction restraining the Petitioner/Defendant from interfering in possession of the plaintiff over the property.

The case of the Respondent/plaintiff before the trial court is that he is the owner in possession of the suit property which he has purchased from its original owner by virtue of sale deed. It was alleged in the plaint that the Petitioner /defendant was pressurizing the plaintiff and trying to dispossess him from the suit property.

The trial court while holding that there is a prima facie case in favour of the Respondent/plaintiff and that the balance of convenience lies in his favour observed that in case an order is not passed in favour of the plaintiff, he would suffer an irreparable loss. However, the trial court opined that on the basis of the material on record, it was not possible to determine the question of possession over the suit land and, as such, interim ex parte order was modified and the parties were directed to maintain status quo with respect to the suit property.

The aforesaid order came to be challenged by the Respondent/plaintiff by way of an appeal before the Court of District Judge, Budgam, who modified the order of the trial court and restrained the Petitioner/defendant from interfering in possession of the plaintiff over the suit property.

It was observed by the Appellate Court that once the trial court came to a conclusion that prima facie case had been established it was not open to the trial court to pass an order of status quo simplicitor without rendering a tentative finding on the question of possession of suit property. It is this order of the Appellate Court which was the subject matter of challenge before the bench.

Adjudicating upon the matter Justice Dhar observed that the Respondent/Plaintiff claims to be owner in possession of the suit property and has placed on record copy of the registered sale deed by virtue of which he has purchased the property in question. The revenue record relating to the property in question also reflects the name of the plaintiff as its owner in possession. As against this, the Petitioner/Defendant is relying upon bank statements, according to which certain amounts have been transferred to the account of son of the plaintiff, the bench noted.

Deliberating further on the issue the bench stated that on the basis of documents, it cannot even, prima facie, be said that the Respondent/plaintiff has either sold the property to the Petitioner/defendant or that he has delivered possession thereof to the defendant. The plea of the Petitioner/defendant that he has purchased the suit land from the plaintiff without execution of any document in this regard cannot be accepted because sale of an immovable property can only be made by a registered instrument, the bench underscored.

"Thus, the learned Appellate Court has rightly observed that the material on record, prima facies, shows that the plaintiff happens to be the owner in possession of the suit property", the bench recorded.

So far as the status quo order passed by the trial court, whereby parties had been directed to maintain status quo, the bench observed that the same is clearly not in accordance with law, inasmuch as the trial court, without recording a tentative opinion as to the possession of the suit property, directed the parties to maintain status quo, that too after holding that there is a prima facie case in favour of the plaintiff and that balance of convenience lies in his favour.

The bench accordingly dismissed the petition while upholding the order of the appellate Court.

Case Title : Shabir Ahmad Ganai Vs Ghulam Mohi Ud Din Wani

Citation : 2022 LiveLaw (JKL) 205

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