J&K HOUSING BOARD Vs. GODAWARI DEVI

JUDGEMENT

(1.) 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 38x90 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.

(2.) 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it was also pleaded that the suit was barred under Order 9 Rule 9 of CPC as earlier suit filed by the respondents was withdrawn.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.

(3.) 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 38x90 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.