GH HASSAN Vs. STATE

JUDGEMENT

(1.) THE dispute in this case relates to land measuring 3 kanals and 12 marlas under survey No.141/2 min situate at Buchwara. Srinagar. The plaintiffs case in the plaint is that he had obtained the land on rent from the custodian Subsequently, the Custodian discovered that the land belonged to the Nazool Department and not to the Custodian. Thereafter, the Financial Commissioner offered to lease out the land to the plaintiff provided he agreed to pay a sum of Rs. 4,000/ - as premium in addition to the usual ground rent. The plaintiff did not accept the offer. His case, however, is that he continued to be in possession till the defendants started interfering with his possession. On the application of the plaintiff, the trial court of Sub Judge. C.J.M granted an exparte injunction. Subsequently, the order of injunction was vacated and defendant No 1 was permitted to raise the construction over the disputed land on his furnishing undertaking to the effect that in the event of the success of the plaintiff he would demolish the construction at his own cost. This order was passed on 12 -12 -1977. The plaintiff appealed. By his order dated 17 -7 -1978, the 2nd Additional District Judge upheld the order and dismissed the appeal. Aggrieved by the order, the plaintiff has come up in revision to this court.

(2.) THE court below have concurrently found that there is no prima facie proof to show that the plaintiff was ever in possession of the disputed land. The argument of the learned counsel for the plaintiff -petitioner is that it was not open to the courts below to say so. He urged that on the pleadings the admitted position was that the plaintiff was in occupation though only was as a trespasser. For this, he relied upon Para No. 3 of the written statement filed on behalf of the state. But he forgets that the state was not the sole defendant. There were other defendants, as many as five. The principal defendant was J&K Muslim Auqaf Trust and four others who are the office bearers of the Auqaf Trust. The case of the Auqaf was that the possession belonged to Masjid Sharief Buchwara which is managed by the Trust. For this, they relied upon a letter No, EC -Notice/590 -93 dated 30 -11 -1976 from the Assistant Commissioner, Nazool, to the Financial Commissioner as also a certificate bearing No. 63/ACM dated 5 -5 -1977 issued by the Assistant Commissioner Nazool Srinagar in which take state has conceded that the measuring 10 kanals, 9 marlas 56 sft comprising Khasra No. 41/2 Min situated at Buchwara is recorded in the possession of Masjid Sharief Buchwara as per Nazool survey records of 1968 -69. therefore, the averment made in Para No. 3 of the written statement filed on behalf of the state could not be treated to the clinching so far as the controversy about the possession was concerned the courts below were justified in going into this controversy and determining same prima facie as they did. On facts found by them, the position is that the state is the owner of the disputed land whereas the other defendants including Auquf Trust are the parties claiming through the state. The question is whether the plaintiff can have temporary injunction against the owner state or the person claiming through it. The question is no longer res -intergra. In state of J&K versus Ghulam Rasool and anr. (1978 KLJ; 260) a learned single judge has considered this question and observed as under: - "7. 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 impell a court to exercise discretion in its favour. In the alternative the party seeking injunction must possess some right which the opposite party is trying to invade 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 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 Kharsa 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 tress passer has no equities in his favour nor is the owner of the property trespassed under any legal obligation the being a question of any contractual obligation under such circumstances to submit to the acts of tress -pass 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

(3.) IT is not necessary 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 there the trespasser has acquired ownership rights in the property by virtue of his long possession, That Government 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 thought 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 Government. I am fortified in taking this view from a judgment of this court in Beant Singh Versus Versus Chatorment Executive officer, Jammu, A.I.R. 1960, J & K; 83 where late K. V. Gopalkiishnan Nair J Observed as under. "The learned counsel for the appellant strenously urged that the licensor is bound to bring a suit cither for injunction of for ejectment against the lecense to enjoy the licence According to him, this would be the position even if the licence had been validly revoked and the licencees 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 licence. A Licence is right "to do or continue to do in or upon the immovable property of the granter something which would, in the absence of such a right be unlawful." If a licence validly determines the right of a licensee to do or continue to do in or upon the immovable property of the licensor anything in enjoyment of that licence would come to an end, the result of which will be to make further exercise of that right unlawful. 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 strange and intolerable situation. The law does not permit a licensee whose licence has been validly revoked to exercise his licence any longer. If he does so, he does something wrong. He will be only a trespasser after he has lost his right under the licence and the owner of the land is entitled to deal with him as a tress -passer. There is neither principal nor authority to support the rather strange proposition that in spite of the valid termination of the right of the licencee, he can continue to exercise his right until the licenseor obtains a decree from the court prohibiting him from doing so. After the termination of the licence, the licensor is entitled to deal with the property as he likes and to treat an intruder, he need not secure a decree of court to obtain this right. He is entitled to resist in defence of his property the attempt of a trespasser to come upon his property. He may exert the necessary and reasonable force to expel a tress -passer. Whatever be the liability that the true owner may incur under the Criminal law or even under the Civil law for use of excessive force, the tress passer will not be entitled to maintain a civil action against him so as to continue the trespass "