Local Commissioner Can Submit Report On Physical Features Of Land For Deciding Interim Injunction Application: J&K High Court

The Jammu and Kashmir High Court said that local commissioners appointed by the court are well within their rights to submit a report regarding the physical features existing on the spot of land for the purpose of deciding the application filed under Rules 1 and 2 of Order 39 of the Civil Procedure Code 1908.The court made the above observation while hearing the petition challenging the order of the appellant court dismissing the application of the petitioner for an interim injunction.A bench of Justice Sanjay Dhar said that when the report of the commissioner highlighting the physical features of the land is read together with the patwari report as well as the police report, it appears prima facie that the respondent/defendant is in possession of the suit property.The court said that it is true that it is not open to the local commissioners to record any finding with regard to possession or record the statements of the witnesses to ascertain who is in possession of the suit land. However, physical features existing on the spot can help to decide the instant application.The court said that the reports of the patwari and police stated that the defendants have fenced the said portion of land and have also constructed the plinth of a house; the physical features of this suit property are also supported by the commissioner's report.It further said that a copy of Khasra Girdawari in respect of the suit land, which is on record, does not reflect the possession of the plaintiff over the suit land; thus the findings by the trial court were rightly upheld by the appellate court.The court said that had it been the defendant who filed the application for interim injunction, the situation would have been different, as there is nothing suggesting that he has title over the suit property. However, in the present case, it is the plaintiff who is seeking relief without showing he is in possession of the suit property.The court said that the correct course of action for the plaintiff/Petitioner was to file suit for recovery of possession and a mandatory injunction with respect to the suit property.The court said that it cannot by virtue of the present petition, come to the rescue of the plaintiff as proof of possession is sine qua non for the grant of a permanent prohibitory injunction against dispossession.BACKGROUND The petitioner (plaintiff) filed a civil suit for permanent prohibitory injunction before the trial court, claiming ownership and possession of 15 marlas of land under Khasra No.161 located at Village Munchwa, Tehsil Yaripora.Petitioner claimed he had been in possession of the land for 20 years, having planted apple trees on it. A portion of the land near the Yamrach-Munchwa pathway remains vacant. He relies on a Misli Haqiyat record for 2019–20 to prove his title and possession.The defendants started illegally interfering with his peaceful possession and are allegedly trying to forcibly dispossess him of part of the land.A decree of permanent injunction to restrain the defendants from interfering with or dispossessing the plaintiff from the suit land.APPEARANCE G. A. Lone, Advocate For PetitionerJahangir Iqbal Ganai, Sr. Advocate, with Ms. Mehnaz Rather, Advocate For RespondentsCase-Title: MOHAMMAD AFZAL MALIK Vs MOHAMMAD AKRAM WANI & ORS.Citation: 2025 LiveLaw (JKL) 242Click Here To Read/Download Order

Local Commissioner Can Submit Report On Physical Features Of Land For Deciding Interim Injunction Application: J&K High Court

Aleem Syeed

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