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2012 DIGILAW 249 (JK)

J&K Housing Board v. Godawari Devi and Ors.

2012-05-11

MUZAFFAR HUSSAIN ATTAR

body2012
The respondents instituted a Civil Original Suit against the petitioner praying therein that they be declared to have acquired ownership rights over the suit property viz a strip of land measuring 38 x90 situated near Chugh Service Station, Gandhi Nagar, Jammu by way of adverse possession. In the said suit, the other relief for injunction has also been sought praying therein that defendant-petitioner herein be restrained from dispossession or evicting the plaintiffs in any manner whatsoever from the suit property either directly or indirectly. It is also prayed that they be further restrained from demolishing the residential house of the plaintiffs comprising two rooms, two cow-sheds and a service station. In the plaint, it is also pleaded that predecessor-in-interest of the plaintiffs late Jai Krishan, was a Government servant and about fifty two years back migrated from Village Arnia to Jammu along with plaintiff no.1. It is also pleaded in the plaint that in the same year, he constructed a small residential house, comprising two concrete rooms over a vacant strip of land measuring 38 by 90 . It is also pleaded that the plaintiff no.1 started living with her husband in the said house and has begotten seven children to her husband and all the children were born in the same house. Along with suit, application seeking issuance of temporary injunction was also filed. The petitioner filed written statement in which the claim of the plaintiffs-respondents was specifically denied and it was pleaded that the respondents are trespassers on the suit land. It was also pleaded that the suit was not maintainable as notice under Section 57 of the Jammu and Kashmir Housing Board Act has not been issued and served on the petitioner. Further plea was taken that the suit was barred in terms of Section 44 of the said Act. It was pleaded that the petitioner Board has every right in law to initiate action for removal of the encroachment. Besides this, it was also pleaded that the suit was barred under Order 9 Rule 9 of CPC as earlier suit filed by the respondents was withdrawn. It was denied that the respondents were in possession of the suit land for the last more than 57 years. It was further pleaded that in the year 2000, the construction was partially demolished. It was denied that the respondents were in possession of the suit land for the last more than 57 years. It was further pleaded that in the year 2000, the construction was partially demolished. The learned Trial Court after hearing the parties, vide its order dated 8th April, 2006, directed the petitioners not to cause any sort of interference with respect to the suit property till final disposal of the suit. The appeal filed against the said order before the Ist Appellate Court also stands dismissed on 24th July, 2007. The petitioner being aggrieved of the order has challenged the same in this petition. Learned counsel for the petitioner submitted that except for filing of an affidavit and two letters, there is no material placed on the suit record by the respondents, which would indicate that they are in possession of the suit land. Learned counsel submitted that had the respondents been in possession of the suit land, the same would be reflected in the revenue records. Learned counsel in this behalf made a request for summoning of the record from the Trial Court and submitted that the suit was not maintainable as no notice in terms of section 57 of the Jammu and Kashmir Housing Board Act was either issued or served upon the petitioner. Learned counsel also submitted that the suit was barred in terms of Section 44 of the aforementioned Act. Learned counsel further submitted that the petitioner Corporation, which is creature of statute, is authorized to initiate action for removal of the encroachment. Learned counsel also submitted that the learned Subordinate Court as also the Ist Appellate Court have committed errors of law by granting the relief of injunction in favour of the respondents. Learned counsel in support of his contentions referred to and relied upon the judgment of the Hon’ble Supreme Court reported in AIR 2003 Supreme Court 759 and judgment of this Court reported in S.L.J. 1997, page 82 and prayed for allowing of this petition. The suit has been instituted against the petitioner-Corporation primarily on the grounds that predecessor-in-interest of the respondents, about 52 years back from the date of institution of the suit migrated from village Arnia and occupied a strip of land measuring 38 x90 near Chugh Service Station, Gandhi Nagar, Jammu, and that two concrete rooms, two cow-sheds and a service station has been constructed on the said land. It is also pleaded that after coming into existence of the petitioner-Corporation in the year 1976, the Corporation did not initiate any action within 12 years thereafter to occupy the suit land and is, thus, barred from contesting the claim of the respondents which they have asserted in the plaint over the suit land. It is not in dispute that the some construction has been raised on the suit land. What is in dispute is that as to at what point of time, the suit land was occupied by the respondents or their predecessor-in-interest. The issues raised in the pleadings definitely are serious triable issues. The rights of the respondents are to be adjudicated upon. The respondents have sought declaratory decree in the suit to the effect that they have become the owners of the suit land on the basis of adverse possession. The very fact that the construction has been raised on the suit land, would require the Court to protect the lis, and if the petitioner is not restrained from interfering into the possession of suit land and they are permitted to proceed with the demolition of the structures raised on the suit land, the suit of the respondents will be rendered infructuous. It is admitted fact that structures are existing on the suit land, which is occupied by the respondents and allowing demolition of the said structures would deprive the respondents of their shelter. The respondents will also suffer irreparable injury, inasmuch as, they will be evicted from the suit land, structures will be demolished and nothing would survive for consideration of the Trial Court and for deciding the issues involved in the suit. Whether the suit is maintainable in terms of Sections 57 and 44 of the Jammu and Kashmir Housing Board Act cannot be decided in an ancillary manner. Since the objections have been raised about the maintainability of the suit, the Trial Court would be under an obligation to frame the issues and if required, treat some of them as preliminary issues and return findings thereon. The maintainability of the suit cannot be decided in an injunction application. The judgments cited at bar, as such, would not be relevant for disposal of the injunction application and same would be relevant for the disposal of the suit. The maintainability of the suit cannot be decided in an injunction application. The judgments cited at bar, as such, would not be relevant for disposal of the injunction application and same would be relevant for the disposal of the suit. The contentions of the learned counsel for the petitioner that there is no evidence placed on record of the suit to substantiate the claim of the respondents they are holding the land in adverse possession, inasmuch as, same is not reflected in the revenue records, is inconsequential for deciding the injunction application for the reason that it is admitted that the respondents have raised structure on the suit land, which have been partially demolished in the year 2000 by the petitioner. Respondents possession over the suit land prima facie is, thus, established. The contentions so raised fails. For the above stated reasons, this petition being merit less is dismissed. The dismissal of revision petition, however, shall not prevent the learned Trial Judge to consider the issue about the maintainability of the suit and decide the same in accordance with law. Record be sent back.