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2010 DIGILAW 417 (JK)

Hafeeza Begum v. Khatija Begum

2010-07-29

Hasnain Massodi

body2010
1. The Instant Civil 1st. Appeal is directed against the judgment and decree of Learned 1st Additional District Judge Srinagar dated 18th December 2009, whereby Learned Judge has dismissed the appellants’ suit as barred by limitation. 2. Put briefly, the appellants case before the Trial Court was that the appellant was owner of the suit property described in the plan, same having devolved on her by inheritance as also in consequence of a family Settlement Deed executed by her siblings/other legal heirs of her father in her favour. The appellant claimed that the respondents who happen to be her collaterals and to have inherited a part of the property in question some time in 2003, entered and took over the suit property, when appellant had gone Haj pilgrimage; that the appellant on her return requested the respondents to vacate the suit property but of no avail, the appellant confronted with recalcitrance of respondents was constrained to file a suit for possession of the suit property. 3. The respondents in their written statement while admitting that the parties to the suit are decedents of one Gaffar Malik, and that the subject matter /suit property was ancestral property of the parties, insisted that the respondents were in exclusive possession of the suit property for last 20 years without any objection from the appellants and that the respondents possession had ripened in to ownership. The respondents pleaded that the suit was time barred and that the respondents were under no legal obligation to vacate the suit property. 4. The Trial Court on perusal of the pleadings settled/ framed as many as 14 issues. Issue No. 13, which is relevant to the present controversy reads as under: "Issue No. 13. Whether the instant suit is within time? O.P.P." 5. The Trial Court after recording evidence adduced by the appellant took-up issue No. 13 for adjudication, as in the opinion of Court issue No. 13 was core issue which went to the very root of the case. The Trial Court on going through the pleadings and evidence, arrived at the conclusion that the appellant was dispossessed from the suit property some where in the year 2003, and that the appellant had commenced the suit in the year 2005 i.e. after two years. The Trial Court on going through the pleadings and evidence, arrived at the conclusion that the appellant was dispossessed from the suit property some where in the year 2003, and that the appellant had commenced the suit in the year 2005 i.e. after two years. The Trial Court took the view that the appellant in terms of Article 3 of J&K Limitation Act, (1st Schedule, 1st Division, Part III Suits) was required to institute the suit within six months, from the date the appellant was dispossessed and that the suit in the circumstances was hopelessly time barred. The Trial Court, opining thus proceeded to decide the issue No. 13 in favour of the respondents and against the appellant and dismissed the appellant’s suit. 6. The judgment and decree dated 18th December 2009 are assailed on the ground that the Trial Court erroneously treated the appellants suit as one under Section 9 Specific Relief Act, and held the suit to attract Article 3 of J&K Limitation Act, (1st Schedule, 1st Division, Part III Suits). It is pleaded that the appellants suit was not one under Section 9 Specific Relief Act, but a suit for possession simpliciter and that Article 142 J&K Limitation Act, (1st Schedule, 1st Division, Part VIII Suits) was applicable to the case. 7. I have gone through the memorandum of appeal as also the judgment and decree in question and have heard Learned Counsel for the appellant. 8. Section 9 Specific Relief Act provides a summary remedy available to a person in possession of the immovable property in the event he is dispossessed otherwise than in due course of law. The remedy has its roots in public policy to discourage persons from taking law into their own hands. In terms of Section 9 Specific Relief Act, any person who, while in peaceful possession is disposed by a tress-passer he may file a sit under Section 9 and recover possession merely by proving his prior possession. The dispossessed person is not required to establish ownership against the tress-passer who dispossessed him. Even proof of title in a 3rd person does not displace the limited possessory title which is accepted as sufficient for the dispossessed person to succeed in the suit. The dispossessed person is not required to establish ownership against the tress-passer who dispossessed him. Even proof of title in a 3rd person does not displace the limited possessory title which is accepted as sufficient for the dispossessed person to succeed in the suit. The genesis of the rule lies in latin maxim Acquli jurenelior eat condition possidentis which means when the right is equal, the claim of the party in actual possession shall prevail. The person in peaceful possession of an immovable property dispossessed there from by a tress-passer without his consent and other wise than in due course of law may make use of the summary remedy available under Section 9 Specific Relief Act. The dispossessed person shall thus in-effect put his case on a fast track and get back possession without any chance of his being dragged to an appeal filed against the order or decree passed in his favour. The only option to avail summary remedy is to act fast and nor later than six months from the date the person is dispossessed by the tress-passer. However, Section 9 makes room for suit for recovery of possession based on title. In other words, Section 9 does not operate as a bar to institution of a suit for recovery of possession on the basis of title. If a person dispossessed without his consent of immovable property or otherwise than in due course of law does not press into service under Section 9 of Specific Relief Act, his right to recover possession does not get extinguished. The person may still maintain a suit for recovery of possession on the basis of title. In a suit under Section 9 Specific Relief Act, the Trial Court is to go into question of possession and all other averments made are irrelevant in such a suit. The jurisdiction of a Court under Section 9 is very limited and the Court is not expected to go into the question of title. The dispossessed person has an option to bring a regular title suit for recovery of possession. 9. In the present case the appellant did not file suit under Section 9 Specific Relief Act. The appellant neither styled her suit as one under Section 9 Specific Relief Act, nor do the averments made in the plaint point to such a conclusion. The dispossessed person has an option to bring a regular title suit for recovery of possession. 9. In the present case the appellant did not file suit under Section 9 Specific Relief Act. The appellant neither styled her suit as one under Section 9 Specific Relief Act, nor do the averments made in the plaint point to such a conclusion. The Trial Court thus of its own labelled the appellants suit as a suit under Section 9 of the Act and held the suit time barred because the suit was not brought within six months of the appellants dispossession. The appellants suit was a regular suit for recovery of possession with declaration of title implicit therein. The Trial Court thus ought to have held the suit to attract Article 142 J&K Limitation Act, (1st Schedule, 1st Division, Part III) and decide the issue No. 13 in favour of the appellant and against the respondents. The judgment and decree in question are thus based on mis-appreciation of the case projected before the Trial Court and misapplication of law to the facts of the case. 10. Viewed thus, the appeal succeeds. The judgment and decree of the Trial Court dated 18.12.2009, are set aside. The appellants suit is held to be within time and issue No.13 decided accordingly. The case is remanded to the Trial Court for its disposal in accordance with law. 11. The appellant has already concluded her evidence. The respondents have not adduced any evidence to substantiate the issues burden whereof was put on the respondents or to rebut the evidence adduced by the appellant. However, suit which was thrown-out by employing a short-cut course, now deserves to be disposed of with proper despatch. The Trial having been concluded, there must be no difficulty for the Trial Court to hear the arguments and dispose off the Civil Suit, as far as possible within one month from the date the Trial Court takes up the matter afresh on 05.08.2010. The appeal is allowed accordingly.