Jammu & Kashmir High Court – Srinagar Bench
Mst. Hajra Begum (Aged 56) vs Aijaz Ahmad Lone on 6 April, 2026
Serial No. 10
Regular Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CM (M) 102/2026
CM (1628/2026)
Caveat No. 463/2026
1. Mst. Hajra Begum (Aged 56)
W/o: Late Ghulam Rasool Lone
2. Mst. Sakeena (Aged 37 years)
3. Mst. Jabeena (Aged 35 years)
Both daughters of Late Ghulam Rasool Lone
All residents of Mughalpora Tehsil and District Kupwara.
... Petitioner(s)
Through: -
Mr. Mir Umer, Advocate
V/s
1. Aijaz Ahmad Lone
2. Firdous Ahmad Lone
Sons of Late Ghulam Rasool Lone
Both Residents of Mughalpora Tehsil and District Kupwara.
3. Ishfaq Ahmad Ganaie
4. Shariq Ahmad Ganaie
5. Tariq Ahmad Ganaie
Sons of Late Abdul Salam Ganaie
CM (M) 102/2026
CM (1628/2026)
Caveat No. 463/2026
Page 2 of 7
Residents of Mughalpora Tehsil and District Kupwara.
6. Mushtaq Ahmad Wani
S/o Ghulam RAsool Ganaie
7. Mohammad Ramzan Wani
S/o Abdul Aziz Wani
R/o Kalaroos Tehsil and District Kupwara
... Respondent(s)
Through:-
Mr. M. A. Wani, Advocate for the Caveators/ R-3 to 6.
CORAM:
HON’BLE MR JUSTICE M. A. CHOWDHARY, JUDGE.
(ORDER)
06.04.2026Caveat No. 463/2026
01. With the appearance of Mr. M. A. Wani, learned counsel for the
caveators /respondents No. 3 to 6, the caveat stands discharged.
CM (M) 102/2026
02. Through the medium of this petition, the petitioners have
invoked the supervisory jurisdiction of this Court vested under Article 227
of the Constitution of India, to assail order dated 6th of March, 2026 passed
by the Court of learned Principal District Judge, Kupwara as an Appellate
CM (M) 102/2026
CM (1628/2026)
Caveat No. 463/2026
Page 3 of 7
Court, in an appeal, whereby the respondent No. 3 had been permitted to
raise construction on the suit property, on an application moved by him.
03. Learned counsel for the petitioners submits that the dispute
between the parties is regarding land bearing Khasra No. 997, 1343/1001,
1344/1001 and 1003 situated at Mughalpora Kupwara which originally
belonged to one Ghulam Rasool Lone who died on 23 rd of October 2018
leaving behind the petitioners and respondent No. 1 and 2 as his legal heirs;
that the private respondent Nos. 3 to 7 being strangers to the lineage and
own adjoining land bearing Khasra No. 976; that the petitioners filed a civil
suit before the Trial Court seeking declaration, permanent injunction to
restrain respondent Nos. 3 to 5 from raising illegal construction affecting
their easementary rights including right to light, air, privacy and right of
way; that the trial court initially rejected the interim relief application and in
an appeal against that order, the Appellate Court, vide order dated 4 th of
September, 2025, set aside the Trial Court’s order and directed fresh
consideration while ordering maintenance of status quo.
04. He further argued that the Trial Court, vide order dated 4 th of
February, 2026, after proper consideration, granted interim relief directing
the parties to maintain status quo with respect to the suit property and that
aggrieved thereof respondent No. 3 filed an appeal which is pending
adjudication before the appellate court.
CM (M) 102/2026
CM (1628/2026)
Caveat No. 463/2026
Page 4 of 7
05. The learned counsel for the petitioners submits that during the
pendency of the aforesaid appeal, respondents No. 3 to 7 moved a
miscellaneous application seeking permission to raise construction and the
Appellate Court, without deciding the Misc. appeal on merits, allowed the
said application vide impugned order dated 6th of March, 2026 and
permitted the construction subject to conditions.
06. It is this order that has been assailed being patently illegal and
without jurisdiction as it effectively grants final relief to the respondent and
renders the pending litigation infructuous and also defeats the earlier orders
directing maintenance of status quo, violating settled principles governing
interim relief, causing irreparable injury to the petitioners by altering the
nature of the character of the property and affecting their valuable
easementary rights.
07. Heard.
08. Notice.
09. Notice waived by Mr. M. A. Wani, learned counsel on behalf
of contesting respondents 3 to 6. He has opposed the plea raised by the
learned counsel for the petitioners in this case asserting that, as an interim
arrangement, the appellate court was within its jurisdiction to permit the
contesting respondents for raising construction of the house over their own
land and that a conditional order was passed providing that the construction
shall be raised at their own risk and cost.
CM (M) 102/2026
CM (1628/2026)
Caveat No. 463/2026
Page 5 of 7
10. He also argued that since the appeal and suit shall take
considerable time to be decided before the appellate as well as the trial
Court, as such, the Appellate Court in its wisdom has passed the order to
protect the property from being wasted, particularly when the house is
being raised by the contesting respondents over their own land with which
the petitioners herein have nothing to do, except asking for their
easementary rights to be protected which are yet to be determined by the
Courts below.
11. On a consensus between the parties, the matter is taken up for
final consideration.
12. The impugned order has been passed by the Appellate Court in
a miscellaneous appeal against the order dated 4 th of February, 2026 passed
by the Trial Court in an interim application whereby the trial Court had
ordered to maintain status quo on spot. The Appellate Court, without
deciding the civil miscellaneous appeal, in an application moved by the
contesting respondents vide order dated 6th of March, 2026, permitted
construction subject to conditions.
13. On perusal of the impugned order passed by the Appellate
Court, it appears that the application filed by the contesting respondents for
permission to carry out construction over their own property has been
allowed subject to following certain conditions:
CM (M) 102/2026
CM (1628/2026)
Caveat No. 463/2026Page 6 of 7
a. That the construction shall strictly remain confined within
the land of the applicants and shall not in any manner
encroach upon or interfere with the land of respondents.
b. That the applicants shall not violate or obstruct the
easementary rights, including rights of access, passage,
ventilation or drainage, if any, of the respondents.
c. That the applicants shall maintain proper fire gaps, as may
be prescribed under the relevant building rules and
regulations.
d. That since the matter between the parties is still sub-judice
before the learned Trial Court, any construction raised by
the applications shall be entirely at their own risk and cost.
e. That in the event the respondents succeed in the main suit or
it is ultimately proved that the construction infringes or
affects the rights of the respondents, the applicants shall be
liable to remove or demolish the construction at their own
cost without claiming any equity or compensation.
f. It is further ordered that the applicants shall furnish an
undertaking before this court to the effect of points (a) to (e)
above.
14. On consideration of the impugned order, it has been found that
though the permission was granted to the contesting respondents to raise
construction of their house over their own land, however, protecting the
rights which has been agitated by the petitioners herein, in their suit before
the Trial Court, as such, the petitioners cannot be stated to be aggrieved of
the order passed by the Appellate Court. At the most, in case of any
violation of the conditions, particularly obstructing the easementary rights
CM (M) 102/2026
CM (1628/2026)
Caveat No. 463/2026
Page 7 of 7
including rights to access, passage, ventilation or drainage of the
respondents, maintaining proper fire gaps or the conditions to which the
contesting respondents have been subjected to, the petitioners herein can
file a contempt petition before the Appellate Court or the Trial Court so as
to enforce their rights. In such a situation of the matter, the order impugned
passed by the Appellate Court on application moved by the respondents
therein to raise construction cannot be stated to be suffering from any
illegality or perversity so as to call for any interference by this Court under
the supervisory jurisdiction. The petitioners, however, shall work out their
remedy against the respondents, in case of contravention of any of the
conditions imposed by the Appellate Court, while passing the impugned
order.
15. The petition is thus found to be bereft of any merit and
substance and is, accordingly, dismissed along with connected CM.
(M. A. CHOWDHARY)
JUDGE
SRINAGAR
April 6th, 2026
“Shoaib Javid”
[ad_1]
Source link
