Ghulam Hassan vs State & Ors.

The dispute in this case relates to land measuring 3 kanals and 12 marals under survey No 141/2 min situate at Buchwara, Srinagar. The

plaintiff's case in the plaint is that he had obtained the land on rent from the custodian Subsequently, the Custodian discovered that the land

belonged to the Nazool Department and not to the Custodian. Thereafter, the Financial Commissioner offered to lease out the land to the plaintiff

provided he agreed to pay a sum of Rs. 4,000/ as premium in addition to the usual ground rent. The plaintiff did not accept the offer. His case,

however, is that he continued to be in possession till the defendants started interfering with his possession. On the application of the plaintiff, the

trial court of Sub Judge. C. J. M granted an exparte injunction. Subsequently, the order of injection was vacated and defendant No 1 was

permitted to raise the construction over the disputed land on his furnishing undertaking to the effect that in the event of the success of the plaintiff he

would demolish the construction at his own cost. This order was passed on 12121977. The plaintiff appealed, By his order dated 1771978, the

2nd Additional District Judge upheld the order and dismissed the appeal. Aggrieved by the order, the plaintiff has come up in revision to this court.

The court below have concurrently found that there is no prima facie proof to show that 'the plaintiff was ever in possession of the disputed land.

The argument of the learned counsel for the plaintiffpetitioner is that it was not open to the courts below to say so. He urged that on the pleadings

the admitted position was that the plaintiff was in occupation though only was as a trespasser, For this, he relied upon para No. 3 of the written

statement filed on behalf of the state. But he forgets that the state was not/the sole defendant. There were other defendants, as many as five. The

principal defendant was J&K Muslim Auqaf Trust and four others who are the office bearers of the Auqaf Trust. The case of the Auqaf was that

the possession belonged to Masjid Sharief Buchwara which is managed by the Trust For this, they relied upon a letter No. ECNotice/59093 dated

30111976 from the Assistant Commissioner, Nazool, to the Finical Commissioner as also a certificate bearing No. 63/ACM dated 551977 issued

by the Assistant Commissioner Nazool Srinagar in which the state has conceded that the land measuring 10 kanals, 9 marals 56 sft comprising

Khasra No. 141/2 Min situated at Buchwara is recorded in the possession of Masjid Sharief Buchwara as per Nazool survey records of 196869.

Therefore, the averment made in para No 3 of the written statement filed on behalf of the state could not be treated 1 to the clinching in so far as

the controversy about the possession was concerned. The courts below were justified in going into. This controversy and determining same

primafacie as they did. On facts found by them, the position is that the state is the owner of the disputed land whereas the other defendants

including Auquf Trust are the parties claiming through the state. The question is whether the plaintiff can have temporary injunction against the

owner state or the person claiming through it. The question is no longer resintergra. In state of J&K versus Ghulam Rasool and anr. (1978 KLJ;

260) a learned single Judge has considered this question and observed as under:

That relief of injunction is a discretionary relief is now well settled. A party before it can ask a court to exercise discretion in its favour must

show that it has some equities in its favour which would impel a court to exercise discretion in its favour. In the alternative the party seeking

injunction must possess some right which the opposite party is trying to invade whether contractual or otherwise in respect of which the opposite

party is trying to commit a breach. These principles clearly emerge out of section 54 of the specific Relief Act which ordains in what circumstances

court may grant the discretionary relief of perpetual injunction.

The findings of the two courts below themselves show that six kanals of land out of Kharsa No. 192 belongs to the state and the respondents have

taken possession of it without any right or title. It would be. Therefore, manifest that the respondents have taken possession and are in possession

of this land as rank tress passers. A tress passer has no equities in his favour nor is the owner of the property trespassed under any legal obligation

the being a question of any contractual obligation under such circumstances to submit to the acts of tresspass committed by the wrong doer. An

owner, has, therefore, every right to enter upon his property and restrain the trespasser from perpetuating his illegal occupation of the property.

It is not necessary in order to vindicate his rights of ownership and possession in respect of his property which has been taken into possession

by another without any right or title. The position may be, of course, different where there the trespasser has acquired ownership rights in the

property by virtue of his long possession. That Government is not bound to honour the possession of a person over its property acquired by the

latter without any right or title till it has taken recourse to eject him throught legal proceedings is further borne out from section 9 of the specific

Relief Act which I makes an exception for a suit under the said section against the Government I am fortified in taking this view from a judgement

of this court in Beant Singh Versus Chatorment .Executive officer, Jammu, A.I.R. 1960, J & K; 83 where late K. V. Gopalkrishnan Nair J

Observed as under.

The learned counsel for the appellant strenuously urged that the licensor is bound to bring a suit either for injunction of for ejectment against the

license to enjoy the license According to him, this would be the position even if the license had been validly revoked and the licensee's right under

the agreement had ceased. I have not been referred to any authority in support of this somewhat extraordinary contention

It militates against the very concept of a license. A License is right ""to do or continue to do in or upon the immovable property of the granter

something which would, in the absence of such a right be unlawful,"" If a license validly determines the right of a licensee to do or continue to do in

or upon the immovable property of the licensor anything in enjoyment of that license would come to an end, the result of which will be to make

further exercise of that right unlawful. The court would thus be throwing its protection round a wrong doer, and forcing the rightful owner of

property to submit to the unlawful action of the wrong doer. I do not think any court should by any order or decree passed by it bring about such

strange and intolerable situation. The law does not permit a licensee whose license has been validly revoked to exercise .his license any longer.

If he does so, he does something wrong. He will be only a trespasser after he has lost his right under the license and the owner of the land is

entitled to deal with him as a tresspasser. There is neither principal nor authority to support the rather strange proposition that in spite of the valid

termination of the right of the licensee, he can continue to exercise his right until the license obtains a decree from the court prohibiting him from

doing so.

After the termination of the license, the licensor is entitled to deal with the property as he likes and to treat an intruder, he need not secure a decree

of court to obtain this right. He is entitled to resist in defence of his property the attempt of a tresspasser to come upon his property,

He may exert the necessary and reasonable force to expel a tresspasse. Whatever be the liability that the true owner may incur under the Criminal

law or even under the Civil law for use of excessive force, the tress passer will not be entitled to maintain a civil action against him so as to continue

the ttespass

On these observations, with which respectfully I agree, a true owner or the person claiming through him cannot be restrained by a tresspasser

from interfering with his possession. On the averments made in the written statement to which reference has been made by the learned counsel for

the plaintiff, the plaintiff does not have a title better than that of a trespaser. If that be so, he cannot justifiably ask for an order of injunction against

the owner state or other defendants who claim their title through the state. La the circumstances, the courts below were justified in refusing the

order of injunction. There is no merit in this revision petition which is dismissed accordingly. There shall be no order as to costs in this court.