RAJ KUMARI AND ORS. (LRs OF LT.SH. SHASTRI RAM) vs PARKASHO DEVI AND ORS. ( LRs OF LT.SH. GHAR SINGH)

Court
Jammu and Kashmir High Court

39
HIGH COURT OF JAMMU, KASHMIR & LADAKH

AT JAMMU



CM(M) No. 124/2022





Raj Kumari and others
(LRs of Late Shastri Ram
…..Appellant(s)/Petitioner(s)


Through: Mr. Ajay Vaid, Adv.

vs


Parkasho Devi and others
(LRs of Late Ghar Singh)
.…. Respondent(s)

Through: Mr. Pawan Kumari Maini, Adv.




Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE


ORDER
07.09.2026


1. The petitioner, through the medium of present petition, has challenged order
st
dated 02.12.2021 passed by 1 Additional District Judge, Jammu (hereinafter
to be referred as the trial court), whereby the application of the predecessor-
in-interest of the petitioners seeking implementation of order dated
02.12.2013 passed by the said court through the agency of Police, has been
dismissed.
2. Heard learned counsel for the parties and perused the record.
3. It appears that the predecessor-in-interest of the petitioners filed a suit for
specific performance of agreement to sell dated 29.01.2003 and 11.09.2003
against the predecessor-in-interest of the respondents before the court of
learned trial court. In the said suit, the predecessor-in-interest of the
plaintiffs/petitioners pleaded that the predecessor-in-interest of the
respondents/defendants had agreed to sell land measuring 8 kanals 3 marlas

falling under khasra Nos. 4517/1205, 871, 1205/4518 situated at Arnia for a
total sale consideration of ₹1.44 lacs. Another agreement to sell dated
11.09.2003 came to be executed by the parties, whereby the predecessor-in-
interest of the respondents/defendants agreed to sell another patch of land
measuring 7 kanals 18 marlas falling under khasra Nos. 1597, 1600 min and
1600 for a total sale consideration of ₹1.20 lacs.
4. According to the predecessor-in-interest of the plaintiffs/petitioners, after
receipt of the sale consideration, the plaintiff was put in possession of the
suit land and he continues to cultivate the land since the year 2003. It was
also pleaded that the defendant executed a power of attorney dated
11.09.2003 with regard to the suit land in favour of the predecessor-in-
interest of the plaintiffs. On the basis of said power of attorney, plaintiff
executed a sale deed on 10.04.2007 and sold 4 kanals of land under khasra
No. 1600 min in favour of his son-Surinder Kumar. The revenue record in
respect of the suit land was also corrected and the plaintiff was shown to be
in possession of the suit land. It was pleaded that the defendant challenged
the sale deed dated 10.04.2007 executed by him in favour of the son of the
plaintiff and he has also filed an appeal before the Settlement Officer against
order dated 04.06.2012, whereby the Tehsildar Bishnah has corrected the
revenue entries.
5. The plaintiff further pleaded that the defendant by filing the appeal against
order of Tehsildar Bishnah and by challenging the sale deed dated
10.04.2007 has indirectly refused to execute sale deed in respect of the
remaining land, as a result whereof, he was compelled to file the suit before
CM(M) No. 124/2022 Page 2 of 5

the learned trial court. Along with the suit, the plaintiff also filed an
application under Order XXXIX Rules 1 and 2 of the CPC.
6. Learned trial court vide order dated 02.12.2013 passed an ex parte interim
order directing the defendant not to cause interference into the possession of
the plaintiff over the suit land.
7. The defendant filed his written statement in which besides raising
preliminary objections with regard to the maintainability of the suit, it was
contended that the alleged agreements to sell are unenforceable documents.
It was further contended by the defendant that the agreements to sell are hit
by provisions of Section 54 of the Transfer of Property Act and without
registration, these documents cannot be considered. It was also pleaded that
the plaintiff is out of the possession and the suit land is in possession of the
defendant. It was contended that the suit land is joint and undivided ancestral
property of the defendant and his sister and without impleadment of all
necessary parties, the issues arising in the suit cannot be adjudicated upon.
8. It seems that after the filing of the written statement by the defendant, the
learned trial court heard the arguments of the parties and vide order dated
17.11.2016 ex parte interim order dated 02.12.2013 has been made absolute.
However, the order, it seems is not reasoned. Nonetheless, the order is still in
force.
9. It seems that during the pendency of the suit, the plaintiff/the predecessor-in-
interest of the petitioners made repeated applications before the learned trial
court seeking implementation of order dated 02.12.2013 as confirmed vide
order dated 17.11.2016. The last of such applications was made by the
CM(M) No. 124/2022 Page 3 of 5

plaintiff on 22.10.2018. However, learned trial court by virtue of impugned
order dated 02.12.2021 has declined to get order dated 02.12.2013
implemented through Police agency. While passing the said order, the
learned trial court has observed that no entry in the khasra girdhawari could
have been recorded in favour of the plaintiff on the basis of power of
attorney or on the basis of agreement to sell. It has also been observed by the
learned trial court that possession of the plaintiff has been shown in his
capacity as an attorney of the defendant as such, it is to be deemed that it is
the defendant, who is in possession of the property. It has also been observed
that the power of attorney executed by the defendant in favour of the plaintiff
was cancelled in the year 2005. On this basis, it has been concluded that
order dated 02.12.2013 cannot be implemented.
10. A perusal of impugned order dated 02.12.2021 passed by the learned trial
court would clearly reveal that the same, in effect, amounts to vacation of
order dated 02.12.2013. The same could not have been done by the learned
trial court, as order dated 02.12.2013 was confirmed and made absolute by
the said court on 17.11.2016. Unless and until, order dated 02.12.2013
passed by the learned trial court as confirmed vide order dated 17.11.2016 by
the said court is set aside by a superior court or is varied by the said court in
exercise of its powers under Order XXXIX Rule 4 CPC, the same could not
have been nullified by the learned trial court in ancillary proceedings seeking
implementation of the said order. As long as order dated 02.12.2013 as
confirmed by order dated 17.11.2016 is in force, it is duty of the trial court to
get it implemented, when its violation is brought to its notice. The trial court
CM(M) No. 124/2022 Page 4 of 5

could not have gone behind the order sought to be implemented and raised
questions about the factum of possession with regard to the suit land. The
impugned order is clearly a classic example of illegal exercise of jurisdiction
by the trial court and, as such, the same is not sustainable in law.
11. For the foregoing reasons, the petition is allowed and impugned order dated
02.12.2021 is quashed. Learned trial court is directed to deal with the
application of the petitioners/plaintiffs seeking implementation of order
dated 02.12.2013 as confirmed by order dated 17.11.2016 in accordance with
law. It shall, however, be open to the respondents/defendants to take
appropriate legal recourse against the order sought to be implemented by the
plaintiffs.


(SANJAY DHAR)
JUDGE

Jammu
07.09.2026
Rakesh PS
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Rakesh Kumar
2026.09.11 09:41
I attest to the accuracy and
integrity of this document
Jammu
CM(M) No. 124/2022 Page 5 of 5