Jammu & Kashmir High Court
Romesh Chander (Age-62 Years) vs Som Datt Salgotra on 2 May, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
Serial No. 07
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- CM(M) No. 155/2023
Romesh Chander (Age-62 years) .....Appellant(s)/Petitioner(s)
S/o Late Sh. Maru Ram
R/o VPO Domana Tehsil Jammu
North District Jammu.
Through: Mr. Rakesh Chargotra, Advocate.
Vs
Som Datt Salgotra, S/o Late. Sh. ..... Respondent(s)
Sarsa Ram, R/o VPO Domana, Tehsil
Jammu, North District Jammu.
Through: Mr. Mohd. Latief Malik, Advocate.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
(02.05.2025)
1. A civil suit has been preferred by the respondent against
the petitioner which is pending in the court of learned 2nd Additional
Munsiff (JMIC), Jammu.
2. In the civil suit, the respondent is asking for a decree of
permanent prohibitory injunction for restraining the petitioner from
indulging in the demolition of the boundary wall 9 inches in width
and 5 feet average height, though at some point it is said to be 12
feet in height, with running length of 100 feet which boundary wall
is said to be separating khasras No. 1051 and 1048.
3. Khasra No. 1051 is said to be the one whereat the
residential house constructed by the father of the respondent is said
2 CM(M) No. 155/2023
to be located whereas in khasra No. 1048 the petitioner’s residential
house is said to be located.
4. The boundary wall forming the subject matter of the civil
suit is said to be made up of bricks and cement with joint
contribution by the father of the petitioner as well as of the
respondent and that is meant to be co-used by both sides.
5. It is in this context that the respondent alleged a cause of
action in his favour against the petitioner that the petitioner was
intending the demolition of the boundary wall and in the process
intended to construct a bathroom and latrine by utilizing the
commonly constructed boundary wall.
6. In response to the civil suit, the petitioner came forward
with the written statement meeting out the allegations and the
averments made in the suit by the respondent admitting that the
petitioner intends to construct a washroom/bathroom.
7. In his written statement, the petitioner said that he
undertook the construction of bathroom on his side of his land
property across the boundary wall by appropriating the portion of
wall falling on his side and that being a reasonable use of the wall
even if it is said to be a common wall.
8. The petitioner further averred in the written statement that
the respondent from his side of the property has also appropriated
3 CM(M) No. 155/2023
the common wall for the purpose of construction of kitchen for his
residential premises.
9. The court of 2nd Additional Munsiff, Jammu by virtue of an
order dated 10.07.2023 in response to an application filed way back
on 14.03.2017 by the respondent seeking appointment of the
Commissioner, came to oblige by appointing a Commissioner being
Tehsildar Jammu North with a scope of commission to visit the spot
personally to demarcate the suit property as per revenue record and
submit its report as per actual position within 15 days.
10. A bare perusal of the impugned order would show that
once the civil suit is self relatable only to the wall, as suit property,
so obtaining between khasra Nos. 1048 and 1051, being an
admitted position from the both sides, there was no scope
whatsoever for the court of 2nd Additional Munsiff, Jammu to go for
demarcation of the suit property as per revenue record. The trial
court has not spelt out as to what is the suit property which is
meant to be subjected to inspection by a commission.
11. The 2nd Additional Munsiff, Jammu has also not spelt out
as to whether the appointment of the Commissioner is taking place
by taking recourse to Order 26, or for that matter to Order 39 rule
7, of the J&K Code of Civil Procedure, Svt. 1977 relatable to the
time when a civil suit was filed being the Code in operation.
12. In view of this serious lacuna in the order itself, the
appointment of the Commissioner was misconceived and, in fact,
4 CM(M) No. 155/2023
was going beyond the brief of the civil suit filed by the respondent.
Therefore, the order dated 10.07.2023 is set aside.
13. This Court is taking cognizance of the fact that the
institution of the civil suit is that of May, 2015 and is going to
complete 10 years of its institution on the expiry of the current
month of May, 2025.
14. A suit for permanent prohibitory injunction relatable to the
common wall use pending for ten (10) long years is a very sad
commentary on state of affairs of adjudication of civil suit before the
court of 2nd Additional Munsiff, Jammu.
15. It is being reported by both sides that no evidence so far
has been led in the suit meaning thereby the suit is still struggling
with the stage where only written statement has come on record and
nothing further in the suit has happened.
16. The court of 2nd Additional Munsiff, Jammu is directed to
adjudicate and dispose of the suit within a period of next one year
by holding effective proceedings on each and every date of hearing
without affording any adjournment on any pretext except for very
genuine cause/reason which may calls for adjournment
unavoidable.
17. Extension of time in disposal of the civil suit beyond given
period of one year to be sought by the 2nd Additional Munsiff,
5 CM(M) No. 155/2023
Jammu by laying a motion to said effect bearing reasons before this
Court.
18. A copy of this order be sent to the 2nd Additional Munsiff,
Jammu for notice and compliance.
19. Before proceeding with the adjudication of the suit, the trial
court is advised to consult itself with Order 10 read with Order 15 of
the J&K Code of Civil Procedure, Svt. 1977 which warrants disposal
of a civil suit at its inception stage, by bearing in mind the
contradictory relief which the respondent has claimed in the suit.
20. Disposed of.
(RAHUL BHARTI)
JUDGE
JAMMU
02.05.2025
Shivalee
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
Shivalee Khajuria
2025.05.05 14:20
I attest to the accuracy and
integrity of this document
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