Puneet Gupta JUDGMENT
Puneet Gupta, J.
1. The appellant through the medium of the present appeal seeks setting aside of order dated 09.10.2021 passed by the learned Court of Principal District Judge, Reasi, whereby the prayer sought for by the appellant in the interim application filed in the suit was declined and the defendants were directed to file undertaking in the Court that if the plaintiff succeeds in the suit the defendants shall remove the construction or any development on the suit land at their own cost and further that the defendants shall not alienate the land till disposal of the suit. The order is impugned on the ground that there was no justification for the trial Court to allow the construction over the suit land as the basis on which the defendants claim their right in the suit land is not valid in law, the trial Court having admitted that the suit requires trial and the rights of the parties can be determined only during the trial. The trial Court has failed to visualize the real controversy between the parties. In case the defendants are not restrained from raising construction the appellant will be subject to hardship and irreparable loss.
2. The respondent Nos. 1 to 3 have appeared through learned counsel to contest the appeal. As the relief was sought by the appellant against the aforesaid respondents before the trial court, therefore, the matter was taken up for consideration even in the absence of the respondent No. 4.
3. Mr. P.N. Goja, learned senior counsel appearing on behalf of the appellant-plaintiff has taken the Court through the various documents on record in support of his argument that the trial Court erred in not allowing the prayer of the appellant in the application and allowing the defendants to raise the construction with the conditions as mentioned in the impugned order. The argument in precise raised on behalf of the appellant is that the documents on which the defendants rely upon do not confer any legal right in the property and as the issues raised in the suit require consideration, therefore, the order impugned is bad in law.
4. Mr. M.L. Gupta, learned counsel for the respondents, submits that the order of the trial Court is justified. The right on which the plaintiff claims relief in the suit is yet to be decided and there being no dispute that the defendants are in possession of the suit property, therefore, the order whereby the defendants were given permission to raise construction cannot be faulted with.
5. The learned counsel for the appellant has referred to MANU/SC/0072/2013 : AIR 2013 SC 1204 which relates to the conditions which are required to be observed to validate the adoption.
6. In MANU/SC/0472/1995 : AIR 1995 SC 2372, the Hon'ble Apex Court has laid down the conditions in which the injunction can be passed.
7. The counsel for the respondent has referred to CIMA Nos. 161 to 166 and 171 of 2001 decided on 01.03.2002 titled Prem Nath and others v. Shri Mata Vaishno Devi Shrine Board Katra, wherein this court did not find favour to grant relief to the plaintiffs in the appeal on the ground that no legal right existed in favour of the plaintiffs on the expiry of license by the efflux of time.
8. In MANU/JK/0035/2004 : 2004 (2) JKJ 99, the court upheld the order of the trial court whereby the application of the plaintiff for temporary injunction was dismissed as court directed the defendants to file an undertaking that in case any change is made in the suit property after the order of this court, the same shall be removed by the defendants at their own expense in case the defendants fail in the suit.
9. The perusal of the plaint and documents accompanying it reveal that there are number of documents filed on which infact both the sides rely upon. The documents which were executed over a period of time and the orders passed by the courts in different proceedings with regard to the property in question have only compounded the controversy between the parties. The transfer of the property allegedly by the father T.N Koul in favour of his respondent-wife, the agreement to sell executed between the mother of the plaintiff in favour of the contesting respondents, adoption deed and two decrees passed purportedly qua the suit property are some of the documents which are in focus.
10. It may be suffice to mention herein that the plaintiff claims to be the adopted son of T.N. Koul and the adoption deed dated 14th July, 2007 executed between the original parents and the adopted parents is itself questioned by the defendants in the suit filed by the plaintiff on the basis of which the plaintiff has based his claim in the suit.
11. It may be convenient to refer to the salient features of the suit filed by the appellant against the respondents-defendant Nos. 1 to 3. The plaintiff through the suit has sought declaration for setting aside decree passed by the court of Sub-Judge, Katra vide dated 31.01.2019 in suit titled Romesh Chander and another v. Swarn Singh (File No. 54/Civil) and decree dated 10.01.1996 passed by the court of Additional District Judge, Reasi in suit titled Romesh Chander and another v. Gouri Shori Kak (File No. 11/Civil).
12. Learned Senior counsel for the appellant has submitted that the decree passed by the Sub-Judge, Katra vide order dated 31.01.2019 is patently erroneous in law as the court passed the decree though the father of the appellant was necessary party in the case and had every right to agitate the matter. The suit was filed with a purpose to deprive the real owner of his property in question. The learned counsel has also submitted that the decree dated 10.01.1996 is unknown in law as the court made a declaration of ownership of Romesh Chander and Avtar Krishan (plaintiff in that suit) to become owners of the land after the expiry of the statutory period of 12 years. This Court cannot adjudicate the legality of both the decrees mentioned above in the present petition as the same are under challenge in the court of law. Any comment can only prejudice the case of the parties during the trial and that is why the court refrains from making any observation on the legality of the decree.
13. The issue of adoption has also been raised during the course of arguments. Learned counsel for the appellant has submitted that the adoption deed in favour of the appellant herein is perfectly valid in law though the learned counsel for the contesting respondents herein has argued that the adoption deed has not been executed as per law. The submission is that the respondent No. 4 is not a party to the adoption deed but only a witness in the Will Deed allegedly executed by T.N. Koul in favour of the plaintiff Nishant Koul. The respondent No. 4 is witness in the Deed and, therefore, the same does not impinge the sanctity of the deed is argued by the counsel for the appellant. The matter encompasses factual as well as the legal aspect which is required to be determined in the suit. The court in the light of the same should not record its opinion on the same.
14. The documents which are placed on record, including the ones of which the mention are made above, do not come to the rescue of the appellant in the present appeal. The document by virtue of which the defendants claim their physical possession in the property include the agreement to sell and the decrees under challenge including the one in which the respondent No. 4 has admitted the claim of the respondents. The most important factor to mention is that the appellant-plaintiff Nishant Koul is not in physical possession of the property in question. The defendants if are in legal possession of the suit property in question is the issue which is again subject matter of the suit filed by Nishant Koul. The intervening circumstances appearing in the matter do not otherwise also make out the physical possession of the appellant.
15. To say the least, the plaintiff is not only required to prove his status as that of adopted son of T.N. Koul he is also required to prove the other claims as raised in the suit filed by him against the contesting respondents. In the absence of the possession of the appellant in the suit property and the fact that the plaintiff is in the process of seeking declaration against the decrees passed in favour of the respondents in the two suits, it cannot be said that the plaintiff had any prima facie case in his favour. The equity also does not favour him. The mere raising of certain claim in the suit and the fact that the issues require determination before the trial court does not give a blanket right to the plaintiff to claim the interim relief in the suit. It is always the overall facts and circumstances of the case which determine as to whether the plaintiff is entitled to the interim relief or not. The court is not convinced that any irreparable loss is going to be caused to the plaintiff in case the interim relief as prayed for in the application is not granted at this stage of the case. This court is of the considered opinion that the trial court has not faulted while passing the impugned order. The direction passed by the trial court that the defendants cannot be denied from enjoying the property is not erroneous and illegal discretion exercised by the trial court merely because the issues have been raised by the plaintiff and he may ultimately succeed in the suit. The trial court while allowing the defendants to raise construction has also directed the defendants to remove the construction for any development on the suit land at their own costs if they fail in the suit and sell out and shall further not to alienate the land till the disposal of the suit. The court is of the view that the conditions imposed by the trial court while disposing of the interim application has taken complete care of the interest of the appellant herein in case the appellant finally succeeds in the suit.
16. No interference is required by this Court in the present appeal against the order impugned. The appeal is without merits and is, accordingly, dismissed.
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