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Nishant Koul Vs. Romesh Chander and Ors. - (High Court of Jammu and Kashmir) (27 Dec 2021)

Mere raising of certain claim in the suit and fact that issues require determination before trial court does not give a blanket right to the Plaintiff to claim the interim relief in the suit

MANU/JK/1067/2021

Civil

The Appellant through the medium of the present appeal seeks setting aside of order passed by the learned Court of Principal District Judge, 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.

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 intervening circumstances appearing in the matter do not otherwise also make out the physical possession of the Appellant.

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.

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 conditions imposed by the trial Court while disposing of the interim application has taken complete care of the interest of the Appellant in case the Appellant finally succeeds in the suit. No interference is required by this Court in the present appeal against the order impugned. Appeal dismissed.

Tags : LEGAL POSSESSION   INTERIM RELIEF   ENTITLEMENT  

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