Research › Browse › Judgment

Himachal Pradesh High Court · body

1993 DIGILAW 166 (HP)

NEELAM KUMAR v. TEMPLE OF DEVI AMBIKA

1993-11-10

D.P.SOOD

body1993
JUDGMENT D. P. Sood, J.—The only question required for the determination of this Court is whether in a case where a person is in settled possession of the property in dispute even on the assumption that he had no right to remain on the property, such person can be dispossesed by the owner thereof except in due course of law. 2. Property in dispute consists of two shops and one room in ground floor of Darshnomii Akhara in Nirmond Bazar, Kullu Distt., Kullu. The plaintiff claimed its ownership since the time of his fore-fathers on the basis of being in adverse possession thereof The defendants refuted the claim by raising various preliminary objections with respect to locus standi and on merits that the plaintiff was not in possession of the demised premises. The case of the plaintiff was that defendant had dismantled portion of the roof of the premises in question and attempted to obtain forcible possession of the property. Defendant admitted the factum of having dismantled a portion of the roof but contended that the plaintiff came into possession of the property in dispute under the garb of injunction sought for from the Court 3. Both the Courts below found the plaintiff to be in settled possession of the property in question However, the trial Court found that the plaintiff failed to establish that the plaintiff is in possession since long, but he has not proved his title thereto. Further, it was found that the plaintiff has not proved his ownership by way of adverse possession. 4. It appears that before the first Appellate Court, no specific ground had been taken up in his grounds of appeal by the appellant nor this point was urged before him. The appellant appears to have confined his case only to the factum of his long possession over the property in dispute and consequently prayed for the passing of the decree for injunction on this basis. The Court below, after considering the evidence and the settled proposition of law, declined the request of the appellant and dismissed the appeal. Aggrieved with the aforesaid Impugned judgment, the appellant has come up in this Regular Second Appeal. 5. Learned Counsel for the appellant has confined his case to the grant of decree for injunction as prayed for by him. Aggrieved with the aforesaid Impugned judgment, the appellant has come up in this Regular Second Appeal. 5. Learned Counsel for the appellant has confined his case to the grant of decree for injunction as prayed for by him. It is urged by Shri G. D. Verma, learned Counsel appearing on behalf of the appellants that even a trespasser, who is factually found to be In possession of the property in dispute, cannot be dispossessed from the property in dispute except in due course of law. On this basis, it is urged that decree for injunction should have been passed in his favour. 6. There is no dispute to the settled proposition that where a person is in settled possession of the property even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. This principle finds support from various decisions of the Apex Court. Lallu Yeshwat Singh and others v. Rao Bagdish Singh and others, (1968) 2 SCR 203 ; Ram Rattan and others v- State of Utter Pradesh, (1977) 2 SCR 232 ; Krishana Ram Mahale v. Mrs. Shobha Venkata Rao JT 1989 (3) SC 489 and Dalip Singh and others v. State of H. P. and others, 1992 (1) Sim LC 320. 7. Both the Courts below have found the appellant to be in possession but without any right or title thereto, on the basis of long possession. Learned Counsel for the appellant submits that he had not claimed ownership by way of adverse possession in the plaint. Rather, the said ownership has been based on the basis of long possession only! This kind of claim by itself, as per his own admission, does not amount to claiming of ownership by way of adverse possession. Even for the sake of assumption it be so, no cogent and convincing evidence has been adduced by the plaintiff to prove his case to this extent. In any case, his possession on the property in dispute has been held to have been proved by both the Courts below. In that view of the matter, defendants cannot oust him by taking forcible possession. In other words, his interests, to this extent, are liable to be protected. Taking into consideration the entire facts and circumstances, the appeal is accepted to this extent. In that view of the matter, defendants cannot oust him by taking forcible possession. In other words, his interests, to this extent, are liable to be protected. Taking into consideration the entire facts and circumstances, the appeal is accepted to this extent. The impugned judgment is set aside. Resultantly, a decree is passed in favour of the appellant to the effect that he shall not be ousted by the defendants from the property in dispute except in due course of law. Parties are left to bear their own costs. 8. Appeal stands disposed of in terms of above. Order Accordingly.