JYOTI JAMWAL Vs. TILAK RAJ

JUDGEMENT

(1.) The case of the petitioner is that she purchased land measuring 02 kanals bearing Khasra no.671 min, Khewat no.73 and Khata no.506 min, situated at Muthi, Tehsil and District Jammu, by virtue of sale deed dated 02.07.1992, duly registered in the Court of Sub-Registrar Jammu. On the basis of sale deed, a mutation has also been attested in the name of the petitioner. It is stated that after the purchase of the said plot of land which is bounded from one side by road, one side by compound wall of some other house owner, one side by house and one side by an open plot. The petitioner with the plan of starting construction, dumped the construction material on spot, for raising the plinth and boundary wall over the above said plot in the month of October, 2011. However, the respondent, who has no right in the above mentioned plot of land belonging to the petitioner, started interference into the said property and threatened to dispossess the petitioner without having any right over the said plot of land. It is stated that apprehending her forcible dispossession at the hands of respondent, she filed a suit for permanent prohibitory injunction, along with an application under Order 39 rule 1 and 2. The trial Court initially granted the status quo order protecting the possession and forcible dispossession from the land measuring 02 kanals bearing Khasra no. 671 min, Khewat no.73 and Khata no.506 min, situated at Muthi, Tehsil and District, Jammu. The respondent caused his appearance and filed written statement as well as objections pleading that he has purchased 7 marlas of land out of Khasra No. 742 min situated at Muthi by virtue of sale deed dated 29th may, 2007 registered with the Sub Registrar Jammu. Thereafter, the trial court made the status quo order absolute and directed the parties to maintain status quo which order was assailed by the respondent by way of an appeal, which appeal was allowed by the Principal District Judge, Jammu and the case was remanded to the trial Court to decide the matter afresh. It is stated that trial Court thereafter declined the request of the petitioner for grant of temporary injunction and dismissed the application. Thereafter, petitioner filed an appeal before the District Judge which appeal was made over to the 2nd Additional District Judge who after hearing the parties upheld the order of trial Court and dismissed the appeal by passing the order dated 22.01.2015, which is impugned in the instant petition.

(2.) The petitioner has challenged the impugned order dated 201.2015 on the grounds that both the Courts below have failed to appreciate that the suit land forms the plot of land measuring 02 Kanals comprising khasra no.671 min, Khewat no.73 and Khata no.506 min situated at Muthi, Tehsil and District Jammu and not in Khasra No. 742 and have wrongly arrived to a finding that the petitioner has no prima case ignoring the fact that the petitioner has purchased land measuring 02 kanals by virtue of sale deed dated 007.1992 forming the plot of land measuring 2 kanals comprising Khasra no.671 min Khewat no.73 and Khata no.506 min, situated at Muthi, Tehsil and District Jammu. It is stated that both the Courts below have admitted the petitioner to be the owner and her name is figured in the revenue record as is evident from the attestation of mutation dated 28.07.1002 which mutation is still intact and has not been challenged by anybody despite the fact that courts below have allowed the respondent to forcibly encroach upon the portion of land out of khasra No. 671 min, which is owned and possessed by the petitioner for the protection of which petitioner had filed a suit and prayed for interim protection. However, the courts below have relied upon the report got prepared by the respondent in connivance with the Revenue officials including the police which report is one sided affair and has been got prepared at the instance of some high officials occupying some high positions in the Govt. at the relevant time. It is further stated that the observations of the appellate Court that the report submitted by the Assistant Commissioner Revenue Jammu in association with ASP Jammu pertains to the identification of the land in dispute and not to indentify the land of the petitioners is a misconceived one. It is stated that a request was also made to the appellate Court for appointment of a local Commissioner to determine the location of the land with the main objective to clinch the issue between the parties. It is stated that the petitioner had been requesting the Courts below to get the land identified on the basis of sale deed in possession of both the parties falling in Khasra no.671 min, Khewat no.73 and Khata no.506 min situated at Muthi, Tehsil and District Jammu, and Khasra No. 742, respectively.

(3.) Learned counsel for the petitioner besides reiterating the grounds taken in memo of petition, has argued that both the Courts below have failed to appreciate the controversy involved and have incorrectly held that the petitioner has no prima facie case, whereas the petitioner had purchased land prior in time as compared to the respondent. Learned counsel for the petitioner in support of his argument has relied upon Chandan Mull Indra Kumar and Others. vs. Chiman Lal Girdhar Das Parekh and anr, (1940) AIR PC 3 ; Maroli Achuthan vs. Kunhipathumma, (1968) AIR Kerala 28 ; E Achuthan Nair vs. P. Narayanan Nair, (1987) AIR SC 2137; Mahendranath vs. Purnananda, (1988) AIR Orissa 248 ; Ashok Singh and ors. vs. Sujan Singh and ors., (2004) 1 JKJ 545 ; Kunj Lal vs. Union of India and sors., (2005) Supp JKJ 608 ; Gajraj Singh vs. Ram Singh, (2006) AIR M.P. 164;Aradhana Das vs. Karuna Kanta Nazarika and anr., (2007) 2 GauLT 519 ;Haryana Waqf Board vs. Shanti Sarup and ors., (2008) AIR SC 616 ; Rifat Ara (Dr.) and anr. Vs. S. Karan Singh Raina, (2009) 2 JKJ 600 ; Gh. Hassan Ganai vs. Sudershah Katiyal and ors., (2009) 3 JKJ 396; Ab.Rehman Mandoo and ors. vs. State and ors., (2012) 1 SriLJ 321 ; Dhani Ram vs. Ramesh Kumar, (2014) 2 ShimLC 828 ; Sarala Jain and ors. vs. Sangu Gandadhar and ors., (2016) 3 ALD 197