Jammu & Kashmir High Court
Raj Kumar Age 70 Years S/O vs Paramjit Singh S/O Lt. Sh. Partap on 6 October, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 25.09.2023
Pronounced on 06.10.2023
MA No. 12/2023
1. Raj Kumar Age 70 years S/o. .....Appellant(s)/Petitioner(s)
Behari Lal
2. Roshan Lal Age 30 years, S/o.
Raj Kumar R/o. Village Gandli
Salehar, Tehsil R. S. Pura,
District Jammu-18111
Q
Through: Mr. Pawan K. Kundal, Adv.
vs
Paramjit Singh S/o Lt. Sh. Partap ..... Respondent(s)
Singh, R/o. Near Railway Track, H.
No. 4-A, Lane No. 6, Greater
Kailash, Jammu 180011
Through: Mr. Supreet Singh Johal, Adv.
MA No. 30/2023
Paramjit Singh S/o Lt. S. Partap .....Appellant(s)/Petitioner(s)
Singh, R/o. Ward No. 2, Simbal
Camp, R. S. Pura, Jammu, A/P.
House No. 4-A, Lance No. 06,
Greater Kailash, Jammu
Q
Through: Mr. Supreet Singh Johal, Adv.
vs
Raj Kumar, S/o Behari Lal, R/o. Gandoli, ..... Respondent(s)
Slehar, Bishnah, Jammu
Through: Mr. Pawan K. Kundal, Adv.
2
MA No. 12/2023 and MA No. 30/2023
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. By this common judgment, two appeals, MA No. 12/2023 arising out of order dated 24.05.2023 passed by the learned 1st Additional District Judge, Jammu and MA No. 30/2023 arising out of order dated 21.08.2023 passed by the learned Additional District Judge, Jammu are proposed to be decided. Since the subject matter of both the appeals is the same, as such, both these appeals are being decided together.
2. Vide MA No. 12/2023, the appellants have challenged order dated 24.05.2023 passed by the 1st Additional District Judge, Jammu, whereby in a suit filed by respondent-Paramjeet Singh against the appellants-Raj Kumar etc. for grant of permanent prohibitory injunction, while deciding the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (CPC), the learned trial Judge has temporarily restrained the appellants from causing interference into peaceful possession of the respondent-plaintiff over the suit land measuring 4 kanal and 5 marlas falling under khasra Nos. 2034, 1753, 436 and 422 situated at Village, Salehar, Tehsil, R. S. Pura.
3. Vide MA No. 30/2023, the appellant-Paramjeet Singh, who happens to be respondent in MA No. 12/2023, has assailed order dated 21.08.2023 passed by learned Additional District Judge, Jammu in a suit filed by respondent-Raj Kumar, who happens to be respondent No. 1 in MA No. 30/2023, while deciding application under Order 39, Rules 1 and 2 read with Section 151 of the CPC, the trial court has directed the parties to maintain status quo and it 3 MA No. 12/2023 and MA No. 30/2023 has also been observed that there is a prima facie case in favour of the plaintiff and that his possession has to be protected. It is pertinent to mention here that the subject matter of the suit filed by Raj Kumar before the Additional District Judge, Jammu is land measuring 3 kanals and 15 marals falling under khasra Nos. 436, 2036, 1752 and 422 situated at Village Salehar, Tehsil, Bishnah.
4. Briefly stated, the facts of two cases as the same emerge from the pleadings are that Paramjeet Singh claims that the suit land was allotted to his father in 1947 as he was a refugee. He further claims that in the year, 1991, his father had gifted land measuring 06 kanal 7 marlas to him by way of a gift deed duly registered before the Sub Registrar, R. S. Pura and out of the said land, 2 kanals and 2 marlas were sold by him. According to Paramjeet Singh, presently he is left with land measuring 4 kanals and 5 marlas and Raj Kumar and Roshan Lal, who happen to be the defendants in his suit filed before the court of learned 1st Additional District Judge, Jammu are causing interference in his peaceful possession over the land in question, though they have no right or interest therein.
5. Raj Kumar has filed a suit before the court of learned Additional District Judge, Jammu whereby he has challenged gift deed executed by the father of Paramjeet Singh in his favour in respect of the land in question. According to him, the said gift deed is null and void because the possession of the land in question has always been with him. It is being contended by Raj Kumar that he is in cultivating possession of the land for the last 40 years. It is being claimed that even though father of the defendant was recorded as an occupancy tenant of the land in question but he was not in its possession. It has been contended that the possession of Raj Kumar over the land in question has been continuous 4 MA No. 12/2023 and MA No. 30/2023 and uninterrupted without any objection from Paramjeet Singh. According to Raj Kumar in the year, 1998, the Girdhawar and Patwari concerned made an enquiry and spot inspection of the suit land and recorded possession of Raj Kumar in the land in question by virtue of "dasti naksha"(map). It is averred that Raj Kumar purchased land adjoining to the suit land over which he has constructed a plinth. According to Raj Kumar, khasra girdawari in respect of the suit land has been attested in his favour in the year 2021 to 2023 which clearly reflects that he is cultivating possession of the said land. It has been submitted that Paramjeet Singh along with his hired goons is trying to dispossess him from the land in question in a forcible manner.
6. Both the parties i.e. Paramjeet Singh as well as Raj Kumar filed the applications for grant of interim injunction against each other before the two courts i.e. court of 1st Additional District Judge, Jammu and the court of Additional District Judge, Jammu. While the court of 1st Additional District Judge, Jammu in the suit filed by Paramjeet Singh came to a prima facie conclusion that the suit land is in possession of Paramjeet Singh, the court of Additional District Judge, Jammu in the suit filed by Raj Kumar came to a prima facie conclusion that the land in question is in possession of Raj Kumar. Thus, two contradictory orders came to be passed by the two courts inasmuch as vide impugned order dated 24.05.2023 passed by learned 1st Additional District Judge, Jammu, Raj Kumar and co-defendant have been restrained from interfering in the possession of Paramjeet Singh over the suit land whereas learned Additional District Judge, Jammu vide impugned order dated 21.08.2023 passed a direction that parties should maintain status quo but at the same time, it made an observation that Raj Kumar has been able to make out a 5 MA No. 12/2023 and MA No. 30/2023 prima facie case in his favour and that his possession of the suit land needs to be protected.
7. The question in the circumstances of the case that falls for determination is as to which of the two parties has a prima facie case in his favour and as per the material on record placed by the parties before the trial court, which of the parties appear to be in possession of the suit land. The answer to this question would determine the controversy as to in favour of which party interim injunction deserves to be passed.
8. While passing an order of interim injunction, the court is required to meticulously analyse the pleadings and the documents filed by the parties. The Supreme Court has, in the case of Maria Margarida Sequeria Fernandes and others v Erasmo Jack de Sequeria (Dead) through LRs, (2012) 5 SCC 3070 while emphasizing the importance of pleadings and discussing the classes of possession, observed as under:
"53. Pleadings are the foundation of litigation. In pleadings, only the necessary and relevant material must be included and unnecessary and irrelevant material must be excluded. Pleadings are given utmost importance in similar systems of adjudication, such as, the United Kingdom and the United States of America.
54. In the United Kingdom, after the Woolf Report, Civil Procedure Rules, 1998 were enacted. Rule 3.4(2) has some relevance and the same is reproduced as under:
(2) The Court may strike out a statement of case if it appears to the Court -
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or Court order.6
MA No. 12/2023 and MA No. 30/2023
55. In so far as denials are concerned, Rule 16.5 provides that where the defendant denies an allegation, he must state his reasons for doing so, and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version.
56. The various practice directions and prescribed forms give an indication of the particulars required. In fact, the 1998 Rules go further and provide for summary judgment. Rule 24.2 of the Civil Procedure Rules, 1998 reads as under:
24.2 The Court may give summary judgment against a claimant or Defendant on the whole of a claim or on a particular issue if-
(a) it considers that-
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
57. After enactment of the Civil Procedure Rules 1998, much greater emphasis is given on pleadings in the United Kingdom. Similarly, in the United States of America, much greater emphasis is given on pleadings, particularly after two well known decisions of the US Supreme Court, viz., Bell Atlantic Corporation et al. v. William Twombly [550 U.S. 544, 127 S.Ct. 1955] and John. D. Ashcroft, Former Attorney General, et al. v. Javaid Iqbal et al. [556 U.S. 662, 129 S.Ct.1937].
58. In Bell Atlantic (supra), the Court has observed that factual allegations must be enough to raise a right to relief above the speculative level. The pleadings must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action.
59. In Ashcroft (supra) the majority Judges of the U. S. Supreme Court observed as under:
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as a true, we are not bound to accept as true a legal conclusion couched as a factual allegation ... ... ... only a complaint that states a plausible claim for relief survives a motion to dismiss."
60. The aforementioned two decisions of the U.S. Supreme Court re-emphasized and reiterated the importance of pleadings. 7
MA No. 12/2023 and MA No. 30/2023
61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.
62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.
63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.
64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.
65. A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.
66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the 8 MA No. 12/2023 and MA No. 30/2023 Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.
70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease-then insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.
72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.
73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the 9 MA No. 12/2023 and MA No. 30/2023 probability, will prevent many a false claims or defences from sailing beyond the stage for issues.
74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission.
75. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.
76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence.
77. Dr. Arun Mohan in his classic treatise on "Justice, Courts and Delays" has dealt with these fundamental principles of law exhaustively."
9. From the afore-quoted observations of the Supreme Court, it is clear that the pleadings and documents filed by the parties play a vital role in determination of the fate of an application for grant of interim relief and for deciding the question of possession of the suit property. The Court has also drawn a distinction between different classes of possession and it has been laid down that one who claims possession has to give all the relevant details and he has to disclose the basis of his claim to continue in possession.
10. In the light of aforesaid legal position, let us now have a look at the material placed on record by the parties before the two courts below. It is an admitted position of the parties that the land in question was initially allotted to the father of Paramjeet Singh. In the year 1991 Late Partap Singh, the father of 10 MA No. 12/2023 and MA No. 30/2023 Paramjeet Singh executed a gift deed in favour of Paramjeet Singh in respect of the allotted land. This fact is also not in dispute.
11. However, Raj Kumar, who is a plaintiff in one suit and defendant in the other suit contends that at the time when the gift deed was executed in favour of Paramjeet Singh, the possession was never handed over to him because it was he, who was in possession of the land in question. In fact Raj Kumar claims that he is in possession of the land in question for the last 40 years. In this report, he has relied upon "dasti naksha"(map) stated to have been prepared by Patwari of the concerned halqa and signed by Girdawar concerned. The map is stated to have been prepared in the year, 1988. It is recorded in the note appended to the said "dasti naksha" that from the enquires made from the villagers, Raj Kumar has been found to be in possession of the land in question for about 3-4 years. Learned counsel for Raj Kumar has submitted that it is on the basis of this "naksha" that in the year 2021 entry in the khasra girdawari in respect of the suit land has been corrected whereafter, it has been recorded in the name of Raj Kumar.
12. So far as validity of "dasti naksha" is concerned, there is no provision of law which attaches any evidentiary value to "dasti khaka" prepared by Patwari. In fact Circular dated 14.09.2012 issued by the Commissioner to the Government, Revenue Department clearly lays down that preparation of "dasti khaka" is not permissible. It provides that the Patwari has to prepare "tatima shajra" from "aks latha/massavi" of the village and in absence of the same, "naksha"(map) of the land has to be prepared on the basis of the field book. Even otherwise a "dasti khaka" or a "tatima shajra" is only an evidence relating to the location of the land. It is not an evidence as regards the possession of the 11 MA No. 12/2023 and MA No. 30/2023 land. The contention of the appellant that it is on the basis of the report of the Patwari recorded in the year 1988 that khasra girdawari has been changed in favour of Raj Kumar in Rabi 2021 does not appear to be plausible for the reason that entry in khasra girdawari cannot be changed on the basis of a report which has been recorded more than 20 years ago. Excepting khasra girdawari for the years 2021 and 2023, there is no document on record filed on behalf of Raj Kumar in either of the two suits that would go on to show that he is in possession of the land in question.
13. As against this, if we have a look at the documents placed on record by Paramjeet Singh, he has placed on record the document relating to allotment of the land in question in favour of his father. Even otherwise there is no dispute on this issue. Paramjeet Singh has also placed on record copy of the gift deed registered on 01.03.1991 before the Sub Registrar, R. S. Pura, according to which, Partap Singh father of Paramjeet Singh has gifted the land in question in his favour. Paramjeet Singh has also placed on record copy of "Jamabandi char sala" which records the name of his father in the column of ownership and possession, as an allotee. He has also placed on record a copy of the extracts of the mutation order, whereby mutation has been attested in respect of the land in question in his favour after the execution of the gift deed in his favour by his father. Copy of khasra girdawari for the year Rabi 2009 has been placed on record which reflects Paramjeet Singh in possession of the land in question. Copy of khasra girdawari for Rabi 2022 has also been placed on record which reflects that the land in question is in possession of Paramjeet Singh.
14. Thus, there are consistent entries in respect of the suit land in revenue record in favour of Paramjeet Singh and his predecessor in interest from the 12 MA No. 12/2023 and MA No. 30/2023 time the land in question was allotted in favour of his father. As against this, Raj Kumar relies upon the entries in khasra girdawari for the years Rabi 2021 and Rabi 2023. The question arises as to what inference can be drawn on the basis of the documents placed on record by the parties and the facts which are not disputed by the parties in their pleadings.
15. So far as the title of the property is concerned, there is no dispute to the fact that the same was allotted in favour of father of Paramjeet Singh and after his death, Paramjeet Singh has stepped into his shoes by virtue of gift deed executed by his father in the year, 1991. Even otherwise Paramjeet Singh being legal heir of original allottee of the suit land has stepped into the shoes of original allottee after his death. The claim of Raj Kumar to the land in question is not based upon any document of title. He claims that the land was lying unoccupied and he has occupied it about 40 years ago to the knowledge of Paramjeet Singh, which is being denied by Paramjeet Singh. The burden of proving that Raj Kumar has come in possession of land in question 40 years ago or that he has been in possession of the same for a long period of time without any interruption lies heavily upon Raj Kumar because admittedly he has no title to the property in question. He has to show as to how he came into possession of the property and he has also to show basis of his claim to continue in possession. Raj Kumar has also to show in what manner did he conduct his relationship with the owner. All these facts were required to be sufficiently pleaded by Raj Kumar in his pleadings which he has failed to do.
16. As against this, the burden of proving that Paramjeet Singh is in possession of property is of a lesser degree because he happens to be the owner of the property in question and there are consistent entries in the revenue record 13 MA No. 12/2023 and MA No. 30/2023 in his favour right up to year 2021, when Raj Kumar claims to have gained his entry in the khasra girdawari for the first time. Raj Kumar has been unable to discharge his burden to show that he has been in consistent possession of the property in question for the past several years. Therefore, his claim that he was in possession of the land in question continuously for the last 40 years, cannot be accepted.
17. Raj Kumar has placed on record a copy of khasra girdawari which reflects entry in his favour for the year, 2021 and 2023. On this basis, it is being claimed by learned counsel for Raj Kumar that even if, Raj Kumar is a trespasser but his possession has to be protected by the Court unless he is evicted in due course of law. According to the learned counsel, Raj Kumar is in settled possession of the property in question and an injunction has to be passed in his favour to protect his possession. In this regard, learned counsel has relied upon the judgment of Rame Gowda (D) by Lrs. vs M. Varadappa Naidu (D) by Lrs, 2004 AIR (SC) 4609.
18. There is no dispute to the settled position of law that a person in a settled possession even on the assumption that he had no right to remain in the property cannot be dispossessed by the owner of the property except in due course of law. In the judgment relied upon by the learned counsel appearing for Raj Kumar, the Supreme Court has observed that a casual act of possession would not have the effect of interrupting the possession of the rightful owner. According to the Supreme Court, the settled possession must be effective undisturbed and to the knowledge of the owner or without any attempt of concealment by the trespasser. It would be apt to reproduce para (11) of the 14 MA No. 12/2023 and MA No. 30/2023 said judgment where the expression "settled possession" has been explained by the Supreme Court. The same reads as under:
"It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner.
The rightful owner may re-enter and re- instate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The 'settled possession' must be (i) effective,
(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of 'settled possession' :
i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;15
MA No. 12/2023 and MA No. 30/2023
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession."
19. From the above analysis of law on the subject, it is clear that in order to show that a person is in settled possession, it has to be gathered from the material on record that his possession is effective, undisturbed and to the knowledge of owner without any attempt at concealment of the trespasser. It must be acquiesced by the true owner and a causal act of possession would not amount to settled possession.
20. Learned counsel for Raj Kumar has submitted that since Raj Kumar is cultivating the land in question as such, in terms of the ratio laid down by the Supreme Court in the judgment quoted above, it has to be presumed that he is in settled possession of the land in question. The contention of the learned counsel for Raj Kumar, in this regard, is without any substance for the reason that the assertion of Raj Kumar that he is cultivating the land in question is being disputed by Paramjeet Singh. Even otherwise growing of crop on the land is not the only test for determining whether a person is in settled possession. The settled possession has to be determined on the touchstone of other tests as well. These include physical possession of the property over a sufficiently long period, possession to the knowledge of the owner without any concealment and dispossession of true owner acquiesced by the said owner. All these elements are prima facie absent in the instant case. 16
MA No. 12/2023 and MA No. 30/2023
21. Neither Raj Kumar has placed on record anything to show that he has been in possession of the land in question for sufficiently long period nor has he shown that he has been in possession to the knowledge of Paramjeet Singh, the true owner, who as per the pleadings on record was away in Australia and when he came back, he found Raj Kumar interfering in his possession over the land in question. Thus, it cannot be stated that Paramjeet Singh has either acquiesced in his dispossession or he has acquiesced in the trespass committed by Raj Kumar or he had the knowledge about the trespass. Therefore, prima facie the material on record does not show that Raj Kumar was in settled possession of the suit property.
22. The Supreme Court has, in the case of Munsi Ram and others vs Delhi Administration, AIR 1968 SC 702, observed that a stray act of trespass and a possession which has not matured into a "settled possession" can be removed by the true owner by using necessary force. It would be apt to reproduce para (13) of the said judgment which reads as under:
"13..........It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force."17
MA No. 12/2023 and MA No. 30/2023
23. From the foregoing analysis of law on the subject, it is clear that a casual act of possession would not have the effect of interrupting the possession of a rightful owner. It is also clear that the owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass while it is in the process of being committed or is of a flimsy character or of stray or casual nature. The true owner has also a right to remove or to resist an act of trespass which has just been committed and a trespasser, who has just entered into a property would not amount to acquiescence of the true owner.
24. Thus, even if, it is assumed that Raj Kumar has entered into the property in question in Rabi 2021 which is very recent in nature, though this is being strongly disputed by Paramjeet Singh, the same can be termed as a stray act of trespass on the part of Raj Kumar, who admittedly has no title to the property in question. Paramjeet Singh who is armed with documents of title in his favour and documents of possession in respect of the land in question for a sufficiently long period cannot be restrained from entering into the property in question just because a rank trespasser has committed a stray act of trespass upon his land. There is, thus, no prima facie case in favour of Raj Kumar.
25. The learned Additional District Judge, while passing impugned order, has not discussed anything as regards the possession of the suit property and the nature of possession. The said order is absolutely devoid of discussion and reasons on this aspect of the matter. The learned Judge has only discussed about the maintainability of the suit in view of the provisions of the Agrarian Reforms Act and after having found that the suit of Raj Kumar is maintainable, he has ignored and skipped the analysis of the material and pleadings on record as regards the title and possession of the suit property. The said order is 18 MA No. 12/2023 and MA No. 30/2023 therefore, not sustainable in law. As against this, the impugned order passed by 1st Additional District Judge, Jammu in the suit filed by Paramjeet Singh is well reasoned, lucid and the learned Judge has considered the pleadings as well as the material placed on record by both the parties, while passing the said order. The same , therefore, does not suffer from any illegality or perversity. Accordingly, the said order deserves to be upheld.
26. In view of what has been discussed hereinabove, the appeals are decided in the following terms:
(i) The impugned order passed by 1st Additional District Judge, Jammu is upheld whereas the impugned order passed by the Additional District Judge, Jammu is set aside. The parties shall abide by the directions dated 24.05.2023 passed by learned 1st Additional District Judge, Jammu in the application under Order 39 Rules 1 and 2 CPC till the disposal of both the suits.
(ii) Both the suits shall be consolidated and tried together by the Court of 1st Additional District Judge, Jammu, consequently, the learned Additional District Judge, Jammu shall transmit the record of the case to the court of 1st Additional District Judge, Jammu who shall proceed further in the main suits filed by the parties in accordance with law.
(SANJAY DHAR) JUDGE Jammu 06.10.2023 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes