Municipal Committee and Another vs Shri Guru Granth Sahib

Hemant Gupta, J.—Defendant is in second appeal aggrieved against the judgment and decree passed by the learned trial Court on 14.08.1989 and affirmed by the learned first Appellate Court on 08.08.1991 holding the plaintiff to be owner in possession of land measuring 45 kanals and 19 marlas comprising in Khasra No. 304 Min (10-0) and 304 Min (35-19). The plaintiff filed the present suit for injunction for restraining the defendants from interfering in any manner in respect of the said land claiming to be in possession of the Plaintiff since 1947. The plaintiff relies upon the decree in a suit for possession filed by Punjab Wakf Board against the plaintiff which was dismissed by the learned trial Court on 31.07.1970 except to the extent of 2 kanals and 2 marlas of land. The first appeal against the said judgment was dismissed on 17.04.1973 (Ex. P-2). The Regular Second Appeal No. 987 of 1974 was dismissed on 25.01.1983 (Ex. P-3). The plaintiff also challenged mutation No. 3165 sanctioned in the year 1977 on the basis of notification dated 07.01.1973.

It is the stand of the appellants that the suit land is a shamlat land and that the land vests with the Municipal Committee, consequent to the extension of the municipal limits which included the said shamlat land.

The learned trial Court framed following issues:-

Whether the plaintiff is owner in possession of the land in suit? OPP

Whether the plaintiff is entitled to the injunction prayed for? OPP

2-A. Whether this Court has got no jurisdiction to try this suit? OPD.

Relief.

The learned trial Court decreed the said suit primarily relying upon the decree passed in a suit for possession filed by the Punjab Wakf Board against the defendants (the present plaintiff). Such finding has been affirmed in the first appeal as well.

In the present second appeal, the following substantial question of law arises for consideration:-

Whether the decree in the civil suit for possession filed by the Punjab Wakf Board is binding on the Municipal Committee on the basis of which plaintiff can be held to be owner?

Both the Courts have relied upon the judgment and decree passed in the civil suit for possession filed by the Punjab Wakf Board. The Municipal Committee was not a party in the said suit. The issue framed in the said suit was whether the suit property is a Wakf property and as such vests in the plaintiff. The defendant was declared to become owner of the land by way of adverse possession while deciding the said issue.

The judgment and decree in the aforesaid proceedings are relevant between the Wakf Board and the present plaintiff and not qua the Municipal Committee which was not party in the said proceedings. The plea of adverse possession which found favour with the learned trial Court in the aforesaid suit cannot be raised against the present appellant claiming to be owner of the suit land. The plea of adverse possession can be raised only against a true owner and if the possession is open, hostile and continuous to the knowledge of the said true owner. There is no evidence of ownership alleged and proved against the Municipal Committee in the previous suit. There is no evidence of title of the Plaintiff in the present suit except the decree in a suit filed by Punjab Wakf Board. Thus, the learned trial Court has gravely erred in deciding issue No. 1 in favour of the plaintiff on the basis of a decree in a suit in which Municipal Committee was not a party. Thus the question of law as mentioned above is answered in favour of the Appellants. It is held that the Plaintiff has failed to prove his ownership in respect of the land in question.

But since, the Plaintiff is in possession, the decree for permanent injunction does not warrant any interference except that the true owner can claim possession in accordance with law. In view thereof, the findings on issue No. 1 are set aside whereas the grant of decree for injunction on the basis of established possession of the plaintiff is maintained. Consequently, it shall be open to the defendant-appellant to prove its title in appropriate proceedings and claim possession if it is proved to be owner in accordance with law. Consequently, the present appeal is partly allowed.