Jammu & Kashmir High Court – Srinagar Bench
Mohammad Hashim Qureshi And Another vs Junaid Qureshi on 10 July, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
114
Supp
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
FAO 21/2026 CM(4146/2026)
Caveat 1462/2026
MOHAMMAD HASHIM QURESHI AND ANOTHER
..... Appellant(s)
Through: Mr. Syed Faisal Qadiri, Sr. Adv.
with Ms. Shaifta Afreen Balki, Adv..
V/s
JUNAID QURESHI ..... Respondent(s)
Through: Mr. Hakeem Suhail Ishtiyaq, Adv.
Coram:
Hon'ble Mr. Justice Sanjay Dhar, Judge
ORDER (ORAL)
10.07.2026
1. The appellant/plaintiffs through the medium of present
appeal have challenged order dated 27.06.2026 passed by
learned Additional, District Judge Srinagar in an
application under Order XXXIX Rule 1 and 2 of Code of
Civil Procedure filed by them along with the suit. By
virtue of the impugned order, the learned trial court has
dismissed the application of the appellants to the extent of
03 Kanals of land falling under Survey No. 2038/1419
situated at Gupt Ganga, Ishber, Nishat, Srinagar while
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directing the parties to maintain status quo with regard to
balance land measuring 05 Kanals and 10 Marlas falling
under Survey Nos. 2038/1419 and 2085/1417 located at
the same place.
2. Issue notice to the respondents.
3. Mr. Hakeem Suhail, Advocate who is on caveat accepts
notice on behalf of the respondent. Caveat is accordingly
discharged.
4. Heard learned counsel for the parties and perused the
record of the case.
5. It appears that the appellants/plaintiffs have filed a suit
against the respondent/defendant seeking declaration that
gift deed executed by the plaintiff No. 2 in favour of the
defendant in respect of aforesaid land measuring 03
Kanals in Khasra No. 2038/1419 as also the mutation No.
5116 attested in favour of the defendant, be declared as
illegal, void and inoperative. The plaintiffs have also
sought a decree of possession directing the defendant to
vacate and handover peaceful possession of the portion of
the residential house which is under his occupation to
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plaintiff No. 1. Besides this, the plaintiffs have also sought
a permanent prohibitory injunction restraining the
defendants from encroaching upon or obstructing in the
peaceful possession and enjoyment of the plaintiffs over
the suit land measuring 08 Kanals and 10 Marlas and the
residential house situated thereon. A decree for mesne
profits for use and occupation of portion of the suit
property by the defendant has also been sought.
6. Briefly stated the case set up by the plaintiffs before the
trial court is that whole of the suit land measuring 08
kanals and 10 marlas was purchased in the name of
plaintiff No. 2 out of funds provided by the plaintiff No. 1.
It has been further pleaded that out of suit land, 03 kanals
of land falling under Khasra No. 2038/1419 was gifted by
the plaintiff No. 2 in favour of the defendant vide gift deed
dated 25th July 2002 pursuant whereto mutation No. 5116
was attested in favour of the defendant. It is case of the
plaintiffs that even though the gift deed was executed and
the mutation was attested in respect of 03 Kanals of suit
land, it was never demarcated and the defendant never
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took possession of the said land. It is further case of the
plaintiffs that the said land forms part of the lawn and
garden of the house constructed by plaintiff No. 1 over
other portion of the suit land measuring 03 kanals falling
under same Khasra No.
7. It has been submitted that plaintiff No. 1 being in
possession of the entire suit land has constructed a
separate single storey annexe and two staff quarters
thereon. The entire suit land measuring 08 Kanals and 10
Marlas is appurtenant to the residential house constructed
by plaintiff No. 1. It is being further claimed by the
plaintiffs that the defendant orally gifted back land which
was gifted to him by plaintiff No. 2 by way of a duly
sworn affidavit which has been made part of the plaint. It
has been pleaded that conduct of the defendant against the
plaintiffs is abusive and unbecoming of a son. Several
instances of such conduct have been mentioned in the
plaint.
8. It has been submitted that plaintiff No. 1 travelled abroad
in the months of October to November, 2025 in
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connection with his medical treatment but when he
returned to Srinagar, the defendant had unlawfully
trespassed and occupied portion of the residential house
without the knowledge and consent of the plaintiff No. 1.
It has been submitted that notwithstanding the revocation
of permission earlier granted by plaintiff No. 1 to the
defendant to reside in the suit property, he refused to
vacate the premises and continued to occupy the main
ground floor of the house forming part of the suit property
unauthorizedly, illegally and forcibly. It has been
submitted that presence of defendant in the suit property
has made it impossible for plaintiff No. 1 and his wife to
live in his own house. It has been contended that the very
foundation upon which the gift deed was executed in
favour of the defendant has been eroded on account of
conduct of the defendant, as such, the gift deed has
become void and in operative.
9. The defendant has filed written statement to the plaint in
which it has been submitted that plaintiff No. 1 has no
locus standi to challenge the gift deed as the same has
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been executed by plaintiff No. 2. It has also been
contended the suit is hopelessly barred by limitation as the
gift deed was executed way back in the year 2002. The
defendant has denied having sworn affidavit on which the
plaintiffs are relying, to contend that the defendant has
orally gifted back 03 Kanals of land to plaintiff No. 1. It
has been contended that the defendant is in actual
physical, peaceful and lawful possession of 03 kanals of
land and a one-story house with a built-up area of 1400 sq.
ft which he has constructed out of his own earnings. It has
been submitted that the property owned and possessed by
plaintiff No. 1 in the suit land is distinct from the
defendant’s absolute property.
10. The learned trial court after hearing the parties and after
analyzing the pleadings came to the conclusion that the
defendant ‘prima facie’ is in possession of the 03 Kanals of
suit land comprised in Survey No. 2038/1419 along with
single storey house constructed thereon. While recording
the said finding, the learned trial court has relied upon
registered gift deed executed by the plaintiff No. 2 in
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favour of the defendant and reliance has also been placed
on mutation recorded in favour of the defendant to the
extent of aforesaid portion of the suit land. The learned
trial court has also recorded the finding that regarding
balance 05 Kanals and 10 Marlas of suit land, the
defendant has no claim.
11. It is a settled law that the appellate court while
determining the legality of order passed by a trial court on
an application under Order XXXIX Rule 1 and 2 of CPC,
has a restricted jurisdiction. It is only if the trial court has
made a finding of fact which is perverse or irrational, or
findings of the trial court are contrary to law or the trial
court has committed a jurisdictional error or the trial court
has acted capriciously, that it would be open to the
appellate court to interfere in the order passed by the trial
court under Order XXXIX Rule 1 and2 of CPC.
12. If we have a look at the impugned order passed by the trial
court, it is clear that the finding of the court to the extent
of the defendant being in possession of 03 kanals of land
and single storey house comprised in survey No.
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2038/1419 is based upon cogent material. In fact even the
plaintiffs have admitted that the defendant is in possession
a portion of the suit property land and it is for this reason
that the plaintiffs are seeking decree of mesne profits
against the defendant for his alleged unauthorized use of
the said portion of the suit property. Besides this, the
ownership and possession of defendant over a portion of
suit property is supported by the registered gift deed
executed by plaintiff No.2 in his favour as also by the
subsequent mutation attested in his favour. Thus,
dismissal of application of the plaintiffs for grant of
interim injunction to the extent of 03 kanals of suit land
comprised in Khasra No. 2038/1414, is perfectly in
accordance with the law.
13. However, the learned trial court despite noticing that the
defendant has not raised any claim with regard to balance
suit land measuring 05 Kanals and 10 Marlas has
proceeded to pass status quo order against both the parties
thereby virtually issuing interim direction against the
plaintiff in his suit. The same is impermissible in law.
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Once the trial court has recorded a finding that the
defendant has no claim with regard to 05 Kanals and 10
Marlas of the suit land, it was not open to the said court to
pass a direction against the plaintiff to maintain status quo
on spot. The said part of the direction passed by the
learned trial court is unsustainable in law and as such
deserves to be set aside.
14. It is admitted case of the parties that the plaintiff is in
possession of 05 Kanals and 10 Marlas of the suit land and
the claim of the title of the plaintiff over the said portion of
the suit land has not been disputed by the plaintiff. Thus,
there is a prima facie case in favour of the plaintiffs to this
extent. Their apprehension that the defendant is trying to
interfere and encroach upon said portion of the land was
required to be addressed by the trial court by passing
appropriate directions against the defendant.
15. In view of what has been discussed hereinabove, the
appeal is partly allowed. While setting aside the direction
passed by the learned trial court asking the parties to
maintain status quo with regard to land measuring 05
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Kanals and 10 Marlas falling under Survey No.
2038/1419 and 2085/1417, it is directed that the
defendant shall not cause any interference in the plaintiffs
peaceful possession over the said portion of the suit land.
16. The appeal stands disposed of.
(Sanjay Dhar)
Judge
SRINAGAR
10.07.2026
Aasif
Whether the order is speaking Yes/No
Whether the order is reportable Yes/No
