TASLEEMA BANOO & Ors. v. FIRDOUS AHMAD DAR

“the plaintiff”) has filed a suit before the learned Principal District Judge, Shopian (hereinafter referred to as “the trial court”) seeking a decree for declaration that he is exclusive FAO No.45/2025 CM No.8236/2025 1 | P a g e owner in possession of landed estate falling under Khasra Nos.176 (11 marlas), 325 (12‰ marlas), 53-min(05 kanals), 456/5 (05 kanals) and Khasra No.696-min (03 kanals 12‰ marlas) situated at Village Heff Chitragam, Shopian. A decree for permanent prohibitory injunction restraining defendants from causing any sort of interference with the aforesaid suit land, has also been sought by the plaintiff. Along with the suit, plaintiff also filed an application for grant of interim injunction in terms of Order 39 Rules 1 and 2. 4) As per case of the plaintiff, one Nazir Ahmad Bhat, the father of defendants No.1 to 3, had availed loan facility from the J&K Bank, Branch Unit Imam Sahib and Pinjura, Shopian, by mortgaging the suit land but later on he failed to liquidate the loan amount. The Bank, after completion of all the formalities, initiated proceedings under SARFAESI Act against Shri Nazir Ahmad Bhat, whereafter the physical possession of the mortgaged property was taken by the Bank. A notification for E-Auction of the land in question was issued by the Bank on 22nd August, 2023, inviting bids from the general public. 5) The plaintiff is stated to have submitted his bid for purchasing the mortgaged property and he was declared as successful highest bidder on 13.09.2023. Accordingly, the plaintiff purchased the suit land for a total sale consideration FAO No.45/2025 CM No.8236/2025 2 | P a g e of Rs.1,36,45,900/. Thereafter the plaintiff is stated to have deposited the amount of sale consideration with the J&K Bank against the proper receipt and after completion of all the legal formalities, the Bank issued sale certificate in respect of the suit property in favour of the plaintiff on 15.12.2023. Thus, according to the plaintiff, upon deposition of the sale consideration amount in respect of the suit property, he became the owner of the property, pursuant whereto, he took over physical possession of the suit property. It has been submitted that the J&K Bank has also issued NOC with a copy thereof endorsed to Sub-Registrar, Zainapora, on

22.02.2024 and the mutation in respect of the suit land is being attested in favour of the plaintiff. 6) It has been contended that the defendants, who are kith and kin of ex-owner of the mortgaged property, have started causing undue interference with the suit property thereby creating hindrance for the plaintiff in enjoyment of the suit property. 7) Defendants No.1 to 3 contested the suit by filing their written statement in which, in effect, they have challenged the procedure adopted by the Bank in proceeding against the borrower and in putting the mortgaged property to auction. According to the said defendants, the entire process has been fraudulent and that the Bank has never taken over physical FAO No.45/2025 CM No.8236/2025 3 | P a g e possession of the mortgaged property. It has been submitted that defendants No.1 to 3 continue to be in possession of the suit property and the plaintiff was never put in possession thereof. It has also been contended that the subject matter of the suit is also the subject matter of writ petition titled “Nazir Ahmad Bhat vs. J&K Bank & Ors (WP(C) No.654/2024), which is pending adjudication before this Court, as such, the proceedings before the trial court are liable to be stayed in terms of Section 10 of the CPC. It has been submitted that in the said writ petition, the original owner of the suit property has challenged the entire auction proceedings. It has been further contended that the plaintiff by filing the suit is intending to dispossess the defendants from the suit property so as to cause irreparable loss to them during the peak fruit harvesting season. 8) The learned trial court, after hearing the parties and after analyzing the pleadings and documents filed by them, came to the conclusion that the plaintiff has established a prima facie case in his favour. It has been observed by the trial court that the documents on record including the sale certificate issued by the bank in favour of the plaintiff and the mutation attested in favour of the plaintiff, prima facie, demonstrate that the plaintiff has acquired possession of the FAO No.45/2025 CM No.8236/2025 4 | P a g e property. On this basis, the learned trial court has allowed the application of the plaintiff under Order 39 Rules 1 and 2 CPC and restrained the defendants from causing any interference in the possession, use and enjoyment of the plaintiff over the suit property. 9) The appellants have challenged the order impugned on the grounds that under Section 34 of the SARFAESI Act, the suit of the plaintiff is barred. It has been further submitted that the sale certificate, on the basis of which the plaintiff claims his right, is under challenge before the High Court in a writ petition filed by the original owner, as such, he cannot claim any right on the basis of the said sale certificate. It has also been contended that the Bank has never taken physical possession of the mortgaged property, as such, there was no question of transfer of possession of the suit property to the plaintiff. 10) Before proceeding to decide the merits of the contentions raised in the appeal, it is to be borne in mind that the scope of appeal against an order granting an injunction is very limited. It is only if the trial court has exercised its discretion arbitrarily, perversely or by misapplication of law/facts that the Appellate Court would interfere in the order of the trial court. The Appellate Court cannot substitute its own FAO No.45/2025 CM No.8236/2025 5 | P a g e judgment but it can only intervene in a situation where the discretion exercised by the trial court is capricious or the same is based on misapprehension of facts and law. 11) That takes us to the merits of the contentions raised by the appellants. The first contention that has been raised is that the suit of the plaintiff is liable to be stayed in view of the provisions contained in Section 10 of the Code of Civil Procedure because the original owner of the suit property has challenged the sale certificate by way of a writ petition. 12) I am afraid the aforesaid contention of the appellants is wholly misconceived. In the writ petition filed by the original owner, the issue for determination of this Court is the validity of the sale certificate whereas the plaintiff in his suit has sought injunction against the defendants on account of the fact that they are trying to interfere in his possession over the suit property which he has obtained on the basis of the sale certificate issued by the Bank in his favour. Thus, there is no identity of the issues involved in the writ petition and those involved in the suit before the trial court. 13) It has been contended that the plaintiff has never taken over possession of the suit property on the basis of the sale certificate and that the Bank had never taken over physical possession of the suit property pursuant to the proceedings FAO No.45/2025 CM No.8236/2025 6 | P a g e initiated under SARFAESI Act. In this regard it is to be noted that once the sale certificate was issued in favour of the plaintiff, it is presumed that the Bank had taken possession of the property and after putting it to auction, has transferred the possession thereof in favour of the plaintiff. The learned trial court has correctly noted that on the basis of the sale certificate issued in favour of the plaintiff and on the basis of the mutation attested in his favour in respect of the suit property, prima facie, it appears that the plaintiff has been put in physical possession of the suit property. The defendants have not placed on record before the trial court any document or material that would go on to show that they still continue to be in physical possession of the suit property. 14) At the stage of considering an application under Order 39 Rule 1 and 3 of CPC, the trial court has to analyze the pleadings of the parties and frame an opinion on the basis of such analysis and the documents placed on record by the parties. In the present case, the documents placed on record by the plaintiff, prima facie, show that he is in possession of the suit property. Therefore, the observation of the learned trial court that there is a prima facie case in favour of the plaintiff is neither perverse nor irrational. 15) In view of what has been discussed hereinabove, the discretion exercised by the learned trial court in allowing the FAO No.45/2025 CM No.8236/2025 7 | P a g e application of the plaintiff and restraining the defendants from interfering in his possession over the suit property is neither arbitrary nor perverse. Therefore, there is no ground to interfere with the impugned order passed by the learned trial court. 16) Viewed thus, the appeal is found to bereft of any merit and is dismissed accordingly along with connected CM(S). (SANJAY DHAR) JUDGE Srinagar 22.12.2025 “Bhat Altaf” Whether the order is speaking: Whether the order is reportable: Yes Yes/No FAO No.45/2025 CM No.8236/2025 8 | P a g e