Kunj Lal vs Union of India and others

This Civil revision is directed against the order dated 1st May. 2005 passed in appeal (3/Appeal) by learned Additional District Judge, Jammu

whereby order dated 7.4.2001 passed by SubJudge (Chief Judicial Magistrate), Jammu vacating ad interim injunction earlier granted has been

confirmed.

The petitionerplaintiff herein approached the trial court for permanent prohibitory injunction claiming to be in possession of land measuring 2

kanals falling under khasra No.218 situated at village Rah Salyote Tehsil Akhnoor District Jammu in addition to land measuring 7 kanals and 11

marlas adjacent to the aforesaid land comprising khasra No. 4 and 4 min. The boundaries of the land measuring 2 kanals have also been specified

in para I of (fie sui(. The plaintiffpetitioner claims to be in peaceful possession of the land. The allegation as contained in the plaint are that the

plaintiff is in cultivating physical possession of the 2 kanals of land which is also being used as a way/passage for entry to the adjacent land

comprising of 7 kanals and 11 marlas till the date of filing of the suit. The defendants in the suit on 1st November 2000 started digging foundation

surrounding the land comprising of 2 kanals which is under the cultivating possession of the plaintiff since 1975 as per the Revenue record. On

these allegations, the trial court granted ad interim injunction. The defendants on being served filed written statement of (acts and pleaded therein

that the land in question comprising Khasra No. 218 was under requisition of the Defence since 1971 and that the rental compensation of the land

has been deposited with the Revenue authorities. The possession of the petitioner herein was also denied. The trial court after hearing the parties

and considering the material on record vacated the ad interim order vide its detailed order dated 7.4.2001.

Aggrieved of the vacation of the aforesaid order, the petitioner herein preferred a civil miscellaneous appeal before the Additional District Judge,

Jammu who concurred with the order of the trial court and upheld the same. The petitioner has come against these two orders in revision before

this Court assailing the findings of both the courts on the question of fact and on the question of law.

Mr. G. N. Goja, learned counsel appearing for the petitioner has referred to the copies of khasra girdawaries for the year 1986, 1990 to

19944,2000 and 2001.1 le has also referred to the report of the Tehsildar, Akhnoor dated 16th February 2001 which is on record. In an these

documents in the column of ownership of the land in question it is shown to be ""Shamlat Deh"" whereas petitioner is shown in the possession of 2

kanals of land and the type of the land is recorded as ""warhal davam"". He has also referred to the site plan prepared by the Patwari which is on

record to shown that the petitioner is in possession of 2 kanals of land. This site plan is duly counter signed by the Tehsildar concerned of that time.

On the other hand, Mrs. Neeru Goswami has referred to a communication dated 3rd January, 2001 from Tehsildar, Akhnoorto Divisional

Commissioner, Jammu. In this letter, it is stated that the entire khasra No. 218 in village Rah Saliote Tehsil Akhnoor is in possession of the Army

since 196768. It is further stated that the payment of rental compensation of said khasra number is being released by the D.E.O. Jammu, from the

date of requisition to onwards i.e. 19992000. It is also mentioned that the acquisition proceedings in respect of the land including khasra No. 2 18

are in progress. Further reliance is placed on a certificate issued by the Patwari concerned which is undated and show that the entire khasra No.

218 is in possession of the Army since 1967. Reliance is also placed upon a communication dated 30th March 2001 from Assistant Commissioner

(Rev), Jammu to the Tehsildar, Akhnoor. This makes a strange reading as it shows that the entire khasra No. 218 stands requisitioned for defence

purposes with effect from 196768. This communication, however, clearly admits the entries in khasra girdwari in favour of the petitioner., Kunj lal

as a tenant at will for the year 1986 though it does not refer to subsequent entries. The Assistant Commissioner accordingly asked the Tehsildar to

make correction in the entries. What has happened thereafter is not known.

A reading of the documents relied upon by the respondents show that some officers of the Revenue Department have reported that the entire

kahasra No. 218 is under requisition/acquisition but none of the communications are supported by revenue record which admittedly contains

entries of possession in favour of the petitioner. There is no rebuttal to the documentary evidence placed on record by petitioner/ plaintiff. The

defence authorities have relied upon the factum of requisition and the initiation of proceedings for acquisition of the land. This is true that the land

was subject to requisition and acquisition proceedings have also been initiated some where in 1987. However, the fact remains that the petitioner is

shown to be in possession of 2 kanals of land which fact is tried to be disputed on the basis of the requistion and acquisition proceedings, without

showing any thing from the record that the entries in khasra girdawari in favour of the petitioner in respect of 2 kanals of land are incorrect or they

have been forged or fabricated though in the communication of Assistant Commissioner (Rev), Jammu, Tehsildar, Akhnoor has been asked to

make corrections. There is nothing on record to show that the entries have been corrected after adopting the procedure prescribed under the Land

Revenue Act. Both the courts below have vacated the order only on the basis that the land was under requisition and acquisition proceedings have

been initiated. There is no categorical finding by any of the courts that the petitioner to not in possession of 2 kanals of land nor any such material

has been brought on record to establish this. Both the courts have committed a glaring illegality by refusing injunction. The possession is a question

of fact which is required to be established. Even if it is assumed that there is dispute over the possession and both the parties have some material in

their favour, the question is to be determined alter the evidence is lead. In such an eventuality it was proper for the courts below to have maintained

the existing position till question of possession is determined after the conclusion of the trial. At least established possession of the petitioner over

the property was required to be protected.

Both the courts have held that the plaintiff does not have prima facie case. I fail to appreciate this finding which is not based upon any material

on record. Therefore, interference in exercise of revisional jurisdiction is warranted.

Mrs. Neeru Goswami has vehementaly argued that the balance of convenience is in favour of the defendants/respondents as the land is being

enclosed for security purposes.

The question arises whether some body can be dispossessed without adopting due course of law merely on the plea that a wall is required to be

constructed for security reasons.

It is only two kanals of land. The defendants are entitled to construct a wall excluding the land in question. It is not the case of the defendants that if

the land is excluded the enclosure cannot be completed. Mrs. Neeru Goswami has referred to case titled Lakshmanan Chettiar Vs. Marudan

Chettiar reported in AIR 1962 Madras 149 and case titled Habib Lone and ors. Vs. Mohan Lai and ors. reported in AIR 1979 J&K 77 to

canvass that no injunction can be granted against true owners. It is well settled proposition of law that even a tress passer can seek protection by

injunction against entire world except the true owner. Defendants are not the true owners of the property, as is admitted by the parties in their

pleadings and petitioner being one of the villagers has a share in the property. It is specifically pleaded in the plaint that petitioner is owner in

possession of the land. Land is ""shamlat deh"" and petitioner is resident of village. It is common village land. Even if the land is under requistion with

the defendants and the petitioner continues to be in the possession, he can only be evicted in accordance with law. It is further stated by the

respondents that the acquisition proceedings are on. I fail to appreciate that the acquisition proceedings were initiated in the year 1987 and even

after lapse of 18 years the same has not been completed. This itself demonstrates how well founded is the ground of security considerations as

sought to be pleaded by the respondents.

Be that as it may, I need not to go in this aspect of the matter. The only question is to protect the possession of property on the basis of

documentary evidence. It is settled proposition of law that the true owner of the property has a right to deal with the property unless the same is

acquired in accordance with law. On acquisition, the property vests with the State and it has the right to take over the possession. In the event of

acquisition proceedings are completed in accordance with law, the Staterespondents shall be entitled to take possession of the property in

accordance with the provisions of law but till the acquisition proceedings are completed, the petitioner cannot be dispossessed under the garb of

construction of a security wall as the same can be constructed excluding 2 kanals of land.

In view of what has been stated above, I allow this revision petition and set aside the impugned orders and direct maintenance of status quo on

spot till the disposal of the suit. However, on acquisition of the property, the respondents are at liberty to take possession of the property in

accordance with law. They are also at liberty to enforce requisition by adopting due process of law.