The Jammu and Kashmir High Court has clarified that a local commissioner appointed by the court is allowed to submit a report on the physical condition of land while deciding an interim injunction application under Rules 1 and 2 of Order 39 of the Civil Procedure Code, 1908.
This important observation was made while hearing a case in which the petitioner had challenged an appellate court's decision to reject his plea for an interim injunction.
"When the commissioner's report about the physical features of the land is read along with the patwari and police reports, it shows that the defendant is in possession of the suit property," said Justice Sanjay Dhar.
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The High Court pointed out that although a commissioner cannot give a finding on who possesses the land or record witness statements for that purpose, reporting physical features on the ground is fully valid for deciding an interim application.
In this case, the patwari and police reports confirmed that the defendants had fenced the disputed land and even constructed the plinth of a house. These facts were further backed by the commissioner’s observations during the site visit.
"The Khasra Girdawari record of the land does not show the plaintiff in possession," the court said, agreeing with both the trial court and the appellate court in rejecting the interim injunction request.
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The High Court added that if the defendants had filed the injunction application without proving ownership, the matter would have been different. However, in this case, the plaintiff was seeking such relief without proving that he was in possession of the land.
"Possession is a necessary condition for seeking a permanent prohibitory injunction," the court emphasized. Since the plaintiff failed to prove actual possession, the court refused to grant the relief.
The appropriate remedy, according to the court, would have been to file a suit for recovery of possession and seek a mandatory injunction, instead of only relying on a claim of ownership.
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Background of the Case
The petitioner had filed a civil suit before the trial court asking for a permanent injunction, claiming ownership and possession of 15 marlas of land in Village Munchwa, Tehsil Yaripora under Khasra No.161.
He stated that he had been in possession of the land for over 20 years, during which he planted apple trees, and also mentioned that a portion near the Yamrach-Munchwa pathway remained vacant. He referred to a Misli Haqiyat record from 2019–20 to support his claims.
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The petitioner alleged that the defendants were trying to forcibly take over the land and disturb his peaceful possession. He sought a decree to stop them from interfering with or dispossessing him.
However, based on the facts and the reports submitted by the commissioner, patwari, and police, the courts concluded that he was not in possession.
"The court cannot help the plaintiff in the absence of proof of possession," Justice Dhar ruled, thereby upholding the earlier decisions.
Case Title: Mohammad Afzal Malik Vs Mohammad Akram Wani & Ors., 2025
Advocates Appeared: G. A. Lone for the petitioner; Jahangir Iqbal Ganai (Sr. Advocate) with Mehnaz Rather for the respondents.
