State of Jammu and Kashmir and Another vs Ghulam Rasool and Another

I.K. Kotwal, J.—This civil second appeal is directed against the decree of Additional District Judge, Srinagar confirming on appeal the

decree of Sub-Judge, Chief Judicial Magistrate, Srinagar, decreeing the respondents' suit for prohibitory injunction restraining the appellants from

interfering in their possession over some land and trees standing thereupon. The facts which have given rise to this appeal may be briefly stated as

below.

The respondents brought a suit on 29-12-1961 against the appellants alleging that they were in possession of land comprising Khasra Nos. 192

and 626 situated in village Gund Boshan, Tehsil Ganderbal and that the defendants were trying to interfere with their possession over the said land

and taking steps to auction the trees standing on the land which had been according to the respondents planted by them. The defence taken up by

the appellants was that land comprising Khasra No. 192 was a Khalsa land belonging to the State of Jammu and Kashmir and the trees standing

on this land had also been planted by the Dehat Sudhar Department of the State over which the respondents did not have any claim, it was also

pleaded in defence that the suit in its form was not maintainable against the appellants and the respondents had no cause of action to bring the suit

against them. Appellant No. 2 herein raised a further plea that no notice as required u/s 80 C.P.C, was served upon him and the suit against him

was not maintainable on this score also. The trial court after perusing the pleadings of the parties framed the following issues :

Whether the land under survey Nos. 626 and 192 as described in para, No. 1 of the plaint situate in village Gund Roshan along with willow and

Kikar trees is in possession of the plaintiff ? OPP.

If issue No. 1 is proved whether the defendants are unauthorisedly cutting the branches of the trees and intend to auction the trees? OPP,

Whether the plaintiff's suit is not maintainable? OPD.

Whether the plaintiff has no cause of action? OPD.

To what relief the plaintiff is entitled to? OP Parties. The parties joined the issues and led evidence in support of their respective cases. The

learned counsel for the appellants, it appears, did not press issue Nos. 3 and 4 in the trial court. The trial court decided issues 1 and 2 in favour of

the respondents holding that Khasra No. 626 belonged to the respondents who had purchased the same from one Prem Nath and that the

respondents were also in possession of six kanals out of 94 kanals and 5 marlas of land comprised in Khasra No. 192 which was State land, The

trial court also found that the willow and Kikar trees standing on these two Khasra numbers had been in fact planted by the respondents

themselves. A decree for prohibitory injunction was therefore passed in favour of the respondents against the appellants with the observation that

the appellants could exercise their right of ejecting the respondents from six kanals of land comprised in Khasra No. 192 but only in due course of

law.

The appellants challenged the judgment of the trial court in appeal before the Additional District Judge, Srinagar but with no success. The lower

appellate court confirmed the findings arrived at by the trial court and dismissed the appeal filed by the appellants. The appellants have now come

up in second appeal against the judgment of the two courts below.

Mr. Raina learned counsel for the appellants has assailed the judgments of the courts below on the grounds. His first contention is that no notice

having been served upon appellant No. 2 as required by Section 80 of the C. P. C. the suit against him was not maintainable. His next ground is

that six kanals of land comprised in Khasra No. 192 having been found as belonging to appellant No. 1 and the possession of the respondents on

this land also having been found to be without any right or title, the courts below could not have exercised discretion in favour of the respondents

and passed the impugned decree against the appellants restraining them from evicting the respondents from the said land except by taking recourse

to legal proceedings.

So far as the first contention raised by Mr. Raina is concerned, I find considerable force in it. No notice u/s 80 CPC is either alleged to have

been served upon appellant No. 2 nor otherwise proved to have been, so served. It is, therefore, manifest that the mandatory provisions of Section

80 CPC had been clearly overlooked by the respondents in bringing the suit against appellant No. 2, I do not find any substance in the argument of

Mr. Kaul learned advocate for the respondents that appellant No. 2 did not go in appeal against the decree of the trial court before the Additional

District Judge, Srinagar and therefore the decree of the trial court had become final against him which could not be challenged for the first time in

second appeal, I have perused the memo of appeal preferred before the Additional District Judge, Srinagar and I find that the appeal has been

preferred by both the appellants. It is therefore obvious that no suit against appellant No. 2 was maintainable in the absence of a notice u/s 80

CPC having been served upon him prior to the institution of the suit. The judgments and decrees of the two courts below against appellant No. 2

cannot be therefore allowed to sustain which are hereby set aside.

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

induction must possess some right which the opposite party is trying to invade or there must exist an obligation in its favour 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 a 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 Khasra 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 trespassers. A trespasser has no equities in his favour nor is the owner of the property trespassed under any legal

obligation. There being no question of any contractual obligation under such circumstances to submit to the acts of trespass 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 for him to take recourse to legal proceedings 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

the trespasser has acquired ownership rights in the property by virtue of his long possession. That Govt. 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 through legal proceedings is further

borne out from Section 9 of the Specific Relief Act which makes an exception for a suit under the said section against the Govt. I am fortified in

taking this view from a judgment of this court in Beant Singh v. Cantonment Executive Officer, Jammu AIR 1960 J & K 83 where late K. V.

Gopalakrishnan Nair J. observed as under (at p. 87) :

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

licensee before he can get rid of the right of the licensee to enjoy the licence. 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 licence is a right ""to do or continue to do in or upon the immovable property of the grantor

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 licenser 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.

If an injunction in favour of such a licensee is given, it would only be permitting him to do what is unlawful for him to do. 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 a strange and intolerable situation. The law does not permit a licenses

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 trespasser. There is neither principle 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 licenser obtains a decree from the court prohibiting him from

doing so.

After the termination of the license, (the licenser is entitled to deal with the properly as he likes and to treat an intruder as sheer trespasser. This

right he gets as an owner in possession of his property. He need not secure a decree of court to obtain this right. He is entitled to resist in defence

of his property the attempts of a trespasser to come upon his property.

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

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

the trespass.

Mr. Kaul has on the other hand invited my attention to a Supreme Court judgment in Bishan Das and Others Vs. The State of Punjab and

Others, in support of his argument that even in case of a trespasser the owner is under a legal obligation not to eject him otherwise than in due

course of law. I have gone through this (judgment carefully and I do not find that this, judgment really supports the principle adumbrated by Mr.

Kaul. On the other hand this judgment also supports the view which I have expressed heretofore. That an owner is not bound to submit to the

illegal possession of a trespasser and refrain from ejecting him otherwise than in due course of law is amply borne out from the observations of the

Supreme Court which read thus (at p. 1574) :

The admitted position so far as the present proceeding is concerned, is that the land belonged to the State; with the permission of the State, Ramji

Das, on behalf of the joint family firm of Fequur Chand Bhagwan Dass, built the Dharma-sala, temple and shops and managed the some during his

lifetime. After his death the petitioners, other members of the Joint family, continued the management. On this admitted position the petitioners

cannot be held to be trespassers in respect of the dharmasala, temple and shops : nor can it be held that the dharamshala, temple and shops

belonged to the State, irrespective of the question whether the trust created was of a public or private nature, A trustee even of a public trust can

be removed only by procedure known to law. He cannot be removed by an executive fiat. It is by now well settled that the maxim, what is

annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country, see Thakoor Chunder Faramanick v.

Ramdhone Bhuttacharjee (1866) 6 S WR 228, Beni, Ram v. Kundan Lall. (1899) 26 I A 58 (PC) and AIR 1927 135 (Privy Council) . These

decisions show that a person who bona fide puts up constructions on land belonging to other with their permission would not be a trespasser, nor

would the buildings so constructed vest in the owner of the land by the application of the maxim quickquid plantatur solo, solo cedit. It is,

therefore, impossible to hold that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason

of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to

resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose.

The facts of the case before the Supreme Court were entirely different from the facts of the present case. There the petitioners had constructed

buildings on Govt. land with its permission. The petitioners had therefore acquired, if not any other right, a least a right of irrevocable license to

occupy and use the property for a particular purpose. They were not as such trespassers who could be dispossessed otherwise than in due course

of law.

It is, therefore, manifest that the Courts below have committed an error of law in granting a decree for prohibitory injunction against the

respondents in respect of six kanals of land comprised in Khasra No. 192 on the ground that the appellants had no right to enter upon their own

land till they had ejected the respondents from the said land in due course of law.

Mr. Kaul has then argued that in case the respondents' suit is dismissed, they will be debarred from claiming compensation for the

improvements, they have effected on the suit land by planting trees on it. I am afraid if the respondents have any such right because a trespasser

who asks improvement upon the property of others with open eyes and with the knowledge that such property does not belong to him has no right

to claim compensation from the owner of the property. I do not find any averment in the plaint that the respondents have planted the trees on the

suit land with the knowledge of the State, Assuming that they have done so, they may be well advised to bring a suit for compensation against the

State in the event of the State taking possession of the land and trees standing on it.

For the foregoing reasons the appeal is allowed to the extent that the respondents' suit against appellant No. 2 is dismissed in respect of both

the Khasra Numbers namely 192 and 626 and it is also dismissed against appellant No. 1 in respect of six kanals of land comprised in Khasra No.

In the peculiar circumstances of the case the parties are left to bear their own costs.

At this stage Mr. R. N, Kaul made a prayer that he may be granted leave to file letters patent appeal against this [judgment. As the decision in

this appeal rests upon concurrent findings of fact arrived at by the courts below and the view taken on the point of law is also supported by a

Supreme Court Judgment, the leave sought for is declined.