SURINDER SINGH Vs. MOHD YUSUF

JUDGEMENT

(1.) THIS is an appeal in a suit for permanent and mandatory injunctions directing the defendant to vacate the suit land on the grounds that he was a pure and simple licensee claiming possession of the land as a servant of the appellant.

(2.) THE suit was resisted by the defendant mainly on the ground that he was in possession of the suit land for more than 12 years and therefore had acquired title by prescription. The trial court accepted the plaintiffs case and decreed the suit, but on appeal the D. J Anantnag reversed the decision of the trial court and dismissed the plaintiffs suit, holding that the plaintiff had not proved that he was the owner.

(3.) I have gone through the judgment of the learned D. J. and I find that he has taken a very perverse and artificial view of the evidence. He has completely ignored the background and the circumstances under which the defendant came into possession of the property. From the evidence adduced by both the parties, it is more or less clear that the father of the defendant was a Motabar or a servant or employee of the plaintiff and since this land does not form part of his orchard, the father of the defendant was allowed to live in a small house and to have a garden of his own as he was an employee of the plaintiff. It is proved from the evidence that the father of the defendant died only in 1962 and all along his life he was the Motibar of the plaintiff. If, therefore, the defendant asserted a hostile title against the plaintiff, it could only be after 1962 and not before. As the suit was brought in September, 1967, the question of adverse possession does not arise The learned D. J. was impressed by one of the circumstances which according to him want to show that the defendant was in possession of the land in his own right. In the first place he observed that when some popular trees were sold, the sale proceeds thereof were given to the defendant which shows that he was in possession of the suit land. The learned D. J. has himself found that the plaintiff chose that the sale proceeds be given to the defendant under orders of the plaintiff which was a conclusive proof of the fact that it was the plaintiff and not the defendant who was the owner of the popular trees grown on the land As to why the plaintiff chose to give the sale proceeds of the popular trees to the defendant was a different matter and was not germane to a decision of this case. It may be that the defendant was not paid any salary and that is why he was given certain amenities and concessions to maintain himself. The possession of the defendant as proved by his own witnesses is therefore in no way inconsistant with the ownership of the plaintiff. The learned D. J. does not appear to have been fully alieve to the distinction between the possession of a tresspasser and occupation by a licensee. I 1964 KLJ 141 a Division Bench of this court to which I was a party has clearly held that where a licensee approached the court for an injunction after the license itself terminated, the injunction should be granted. It was also held that the licensee could not be treated as a trespasser, so long as his occupation on the premises remained. The admitted position in this case is that the father of the defendant was a licensee of the plaintiff. There is no reliable evidence adduced by the defendant to show as to when the possession of the defendant which to begin with was permissive as a licensee became adversed. The learned D, J was further impressed by the fact that the defendant was living in one of the houses situate in the suit land, which also was not inconsistent with the status of the defendant as an employee, because it is the plaintiffs definite case that as an employee the defendant was given a house to live in and was allowed the use of a garden. Therefore the possession of the house or the fact that the defendant grew vegetables in the garden does not disprove the plaintiffs title of the ownership of the house.