Bansi Lal vs Hans Raj
2023 Latest Caselaw 2361 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                                 Reserved on:   11.10.2023
                                                 Pronounced on : 20.10.2023
CM (M) No. 193/2023


1.     Bansi Lal, age 75 years, S/o                    .....Petitioners/Appellants
       Fajan Ram, R/o Barnai, Tehsil
       and District, Jammu.



                         Through: Mr. R. S. Thakur, Sr. Advocate with
R.
                                  Mr. Vasharan Thakur, Advocate
                  Vs
1.     Hans Raj, S/o Malooka Ram

2.     Naveen Kumar S/o Babu Ram

3.     Om Parkash, S/o Malooka Ram
4.     Vikas Pankaj, S/o Hans Raj

       -All residents of Barnai, Tehsil and
       District Jammu.

                                                              ..... Respondents
                         Through: Mr. Parveen Kapahi, Advocate

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
                                    JUDGMENT

1) The petitioner has challenged order dated 22.02.2023 passed by the

learned 2nd Additional Munsiff, Jammu (hereinafter to be referred as "the

trial court"), whereby in a suit for permanent prohibitory injunction filed by

him against the respondents, the learned trial court has dismissed the

application of the petitioner for grant of temporary injunction. Challenge has

also been thrown to order dated 15.09.2023 passed by the learned Principal

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District Judge, Jammu (hereinafter to be referred as "the appellate court"),

whereby appeal filed against the aforesaid order passed by the trial court, has

been dismissed.

2) It appears that the petitioner/plaintiff has filed a suit for permanent

prohibitory injunction restraining the respondents/defendants from dealing in

any manner or interfering in his possession over the land measuring 1 kanal

8 ½ marlas, comprised in khasra No. 427, situated at Barnai Jammu, which

according to the plaintiff, is underneath his residential house, kitchen garden

and compound. Alongwith the suit, the plaintiff also filed an application for

grant of temporary injunction.

3) As per case of the plaintiff, he is owner in possession of land

measuring 1 kanal 8 ½ marlas falling under khasra No.427, situated at

Barnai Jammu, as the same has devolved upon him from his ancestors. It has

been pleaded by the plaintiff that his residential house is situated on the

aforesaid land and there is a kitchen garden and compound appurtenant to

the said house. There is a road alongside the suit property measuring 136'-9"

X 12'-2", which belongs to the plaintiff but the same has been left for

passage to the land of the defendants, who have otherwise no access. It has

also been pleaded that the plaintiff is in settled possession of the land in

question for the last three decades and the defendants have no right, title or

interest in the said land.

4) It has been alleged in the plaint that the defendants are trying to

interfere in the plaintiff's possession over the suit land and Tehsildar Jammu

North while acting on an application of the defendants, passed an order on

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13.11.2019, whereby Naib Tehsildar, Muthi was directed to demarcate the

land. This, according to the plaintiff, has given a handle to the defendants to

play mischief on spot. An application was made by the plaintiff to the

Tehsildar North, Jammu on 20.08.2020, whereby actual facts were brought

to the notice of the said authority and a request was made for recalling of

order dated 13.11.2019 but the Tehsildar did not consider the said

application of the plaintiff. It has also been pleaded by the plaintiff that the

defendants in connivance with the revenue officials are trying to interfere in

the suit land.

5) The respondents/defendants contested the suit by filing their written

statement. It has been pleaded by the defendants that land comprised in

khasra No. 427 min, situated at Barnai Jammu does not belong to the

plaintiff. According to the defendants, the land belonging to the plaintiff is

comprised in khasra No. 413, situated at Barnai Jammu. It has been further

pleaded that the defendants approached Tehsildar North Jammu for delivery

of possession of the land measuring 8.5 marlas comprised in khasra No. 427

situated at Barnai, Jammu and the Tehsildar, after holding an inquiry and

seeking report from the concerned Patwari, reported that the predecessor-in-

interest of the defendants was owner of the suit property and after his death,

mutation of inheritance bearing No. 1268 Jeem has been attested in favour of

the defendants. It is pleaded that the defendants became owner of the land

measuring 3 kanals and 2.5 marlas under khasra No. 427, whereas on spot

they are in possession of only 2 kanals and 10 marlas of land. Thus, leaving

a deficit of 12.5 marlas of land, out of which the defendants are stated to

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have surrendered 4 marlas of land for use of common pathway, to be utilized

by both the parties, whereas rest of the land 8.5 marlas has been encroached

upon by the plaintiff and one Vijay Kumar.

6) It has been pleaded by the defendants that during demarcation

proceedings, it was admitted by the plaintiff that in case the land in question

is found in his occupation, he is ready to hand over the same to the

defendants and accordingly, the application for demarcation was disposed of

by the Tehsildar North Jammu on 13.11.2019 directing the field staff to

demarcate the land. It has further been pleaded by the defendants that the

plaintiff has nothing to do with the suit land and that there is no material on

record to suggest that he is the owner of the land in question. According to

the defendants, the plaintiff is an illegal occupant of the land in question, as

such, no injunction can be granted in his favour.

7) The learned trial court on the basis of the pleadings and documents on

record observed that the plaintiff has failed to prima facie show that he has a

right as an owner to be in possession of land comprised in khasra No. 427,

situated at Barnai, Jammu. On this basis, the trial court has refused to pass a

temporary injunction in favour of the plaintiff. Aggrieved by this order, the

petitioner filed a Civil Miscellaneous Appeal before the Court of learned

Principal District Judge, Jammu, who vide impugned judgment dated

15.09.2023 dismissed the appeal of the petitioner. The learned Appellate

Court while passing the impugned order observed that prima facie the

material available on record goes on to show that the plaintiff has not been

able to carve out a strong case for grant of interim injunction because

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plaintiff's possession on the face of record is that of an un-authorized

occupant, which cannot be protected.

8) The petitioner has challenged the impugned orders passed by the

Courts below on the ground that as per the own admission of the defendants

the plaintiff is in possession of land measuring 8.5 marlas comprised in

khasra No. 427 and as such, his possession was required to be protected till

the rights of the parties would have been decided by the trial court after trial

of the case. It has been contended that the possession of the plaintiff over

the suit property could not have been termed unauthorized without

determination of his right to possess the land in question, particularly when

the plaintiff has clearly pleaded that he is in possession of the said land as an

owner having devolved upon him from his ancestors. It has been contended

that the petitioner is in settled possession of the suit land for the past several

decades, as such, he is entitled to grant of injunction even against the true

owner. Reliance in this regard has been placed on the judgments of the

Supreme Court in the case Krishna Ram Mahale (dead) vs. Mrs. Shobha

Ventat Rao, AIR 1989 SC 2097 and Ram Rattan and Ors. vs. State of

Uttar Pradesh, 1997 SCC (1) 188.

9) I have heard learned counsel for the parties and perused the record of

the case including the impugned order passed by the trial court and the

appellate court.

10) Both the Courts below have come to the conclusion that the plaintiff

has been unable to carve out a prima facie case in his favour. The question in

the circumstances of the case that falls for determination is as to whether

CM(M) No. 193/2023

prima facie findings of both the Courts below on this aspect of the matter are

so perverse in nature that would warrant interference of this Court in its

supervisory jurisdiction.

11) While passing an order of interim injunction, the Court is required to

meticulously analyse the pleadings and the documents filed by the parties.

The Supreme Court has, in the case of Maria Margarida Sequeria

Fernandes and others v Erasmo Jack de Sequeria (Dead) through LRs,

(2012) 5 SCC 3070 while emphasizing the importance of pleadings and

discussing the classes of possession, observed as under:

"53. Pleadings are the foundation of litigation. In pleadings, only the necessary and relevant material must be included and unnecessary and irrelevant material must be excluded. Pleadings are given utmost importance in similar systems of adjudication, such as, the United Kingdom and the United States of America.

54. In the United Kingdom, after the Woolf Report, Civil Procedure Rules, 1998 were enacted. Rule 3.4(2) has some relevance and the same is reproduced as under:

(2) The Court may strike out a statement of case if it appears to the Court -

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or Court order.

55. In so far as denials are concerned, Rule 16.5 provides that where the defendant denies an allegation, he must state his reasons for doing so, and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version.

56. The various practice directions and prescribed forms give an indication of the particulars required. In fact, the 1998 Rules go

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further and provide for summary judgment. Rule 24.2 of the Civil Procedure Rules, 1998 reads as under:

24.2 The Court may give summary judgment against a claimant or Defendant on the whole of a claim or on a particular issue if-

(a) it considers that-

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

57. After enactment of the Civil Procedure Rules 1998, much greater emphasis is given on pleadings in the United Kingdom. Similarly, in the United States of America, much greater emphasis is given on pleadings, particularly after two well known decisions of the US Supreme Court, viz., Bell Atlantic Corporation et al. v. William Twombly [550 U.S. 544, 127 S.Ct. 1955] and John. D. Ashcroft, Former Attorney General, et al. v. Javaid Iqbal et al. [556 U.S. 662, 129 S.Ct.1937].

58. In Bell Atlantic (supra), the Court has observed that factual allegations must be enough to raise a right to relief above the speculative level. The pleadings must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action.

59. In Ashcroft (supra) the majority Judges of the U. S. Supreme Court observed as under:

"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as a true, we are not bound to accept as true a legal conclusion couched as a factual allegation ... ... ... only a complaint that states a plausible claim for relief survives a motion to dismiss."

60. The aforementioned two decisions of the U.S. Supreme Court re-emphasized and reiterated the importance of pleadings.

61. In civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question.

62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.

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63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.

64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.

65. A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.

66. A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.

67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.

68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.

CM(M) No. 193/2023

69. The person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading along with documents to support his claim and details of subsequent conduct which establish his possession.

70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.

(a) who is or are the owner or owners of the property;

(b) title of the property;

(c) who is in possession of the title documents

(d) identity of the claimant or claimants to possession;

(e) the date of entry into possession;

(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

(h) If taken on rent, license fee or lease-then insist on rent deed, license deed or lease deed;

(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;

(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in possession.

71. Apart from these pleadings, the Court must insist on documentary proof in support of the pleadings. All those documents would be relevant which come into existence after the transfer of title or possession or the encumbrance as is claimed. While dealing with the civil suits, at the threshold, the Court must carefully and critically examine pleadings and documents.

72. The Court will examine the pleadings for specificity as also the supporting material for sufficiency and then pass appropriate orders.

73. Discovery and production of documents and answers to interrogatories, together with an approach of considering what in ordinary course of human affairs is more likely to have been the probability, will prevent many a false claims or defences from sailing beyond the stage for issues.

CM(M) No. 193/2023

74. If the pleadings do not give sufficient details, they will not raise an issue, and the Court can reject the claim or pass a decree on admission.

75. On vague pleadings, no issue arises. Only when he so establishes, does the question of framing an issue arise. Framing of issues is an extremely important stage in a civil trial. Judges are expected to carefully examine the pleadings and documents before framing of issues in a given case.

76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence.

77. Dr. Arun Mohan in his classic treatise on "Justice, Courts and Delays" has dealt with these fundamental principles of law exhaustively."

12) From the afore-quoted observations of the Supreme Court, it is clear

that the pleadings and documents filed by the parties play a vital role in

determination of the fate of an application for grant of interim relief and for

deciding the question of possession of the suit property. The Court has also

drawn a distinction between different classes of possession and it has been

laid down that one who claims possession has to give all the relevant details

and he has to disclose the basis of his claim to continue in possession.

13) In light of the aforesaid legal position, let us now have a look at the

pleadings of the parties and the documents placed on record by them before

the trial court. The plaintiff claims that he is owner in possession of the suit

land i.e. land measuring 1 kanal 8 ½ marlas in khasra No. 427, situated at

Barnai Jammu. In this regard, he is relying upon mutation No. 2397, khasra

girdawari of Rabi 1971 and site plan of his house. So far as mutation No.

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2397 is concerned, a perusal of the extracts of the mutation placed on record

by the plaintiff shows that the same does not pertains to khasra No. 427, it

pertain to several other khasra numbers. Copy of khasra girdawari placed on

record by the plaintiff also does not pertain to land under khasra No. 427, but

it pertains to the land under khasra No. 711/413. The site plan placed on

record by the plaintiff pertains to construction of his house on khasra No.

711/413 at Lower Barnai Jammu. Even the site plan does not pertain to the

land under khasra No. 427, which is subject matter of the suit. Thus, the

plaintiff has not placed on record even a single document that would go on

to support his right of possession over the suit land.

14) As against this, the defendants have placed on record copies of khasra

girdawaries for kharief 2017, Rabi 2018 and kharief 2021, which show that

they are in possession of the suit land. The defendants have also placed on

record copy of mutation dated 12.02.2014, which shows that the land in

question has been mutated in the name of defendants. The defendants have

further placed on record copy of report of the concerned Patwari, which also

goes on to indicate that the defendants are owner of the land measuring 3

kanals 2 ½ marlas in khasra No. 427, out of which, they are in possession of

2 kanals and 10 marlas, whereas 4 marlas of land has been surrendered by

them for pathway. The report further indicates that the plaintiff is in

unauthorised occupation of 8.5 marlas of land under the same khasra

number. Thus, the stand taken by the defendants in their pleadings is clearly

substantiated by the documents placed on record by them.

CM(M) No. 193/2023

15) It has been contended by the learned Senior Counsel appearing for the

plaintiff that as per own admission of the defendants, the plaintiff is in

possession of 8.5 marlas of the suit land. Therefore, his possession was

required to be protected by the trial court till the rights of the parties are

determined upon trial of the case.

16) It is true that the defendants have admitted that the plaintiff is in

possession of 8.5 marlas of suit land but in order to defend his possession, it

was incumbent upon the plaintiff to support his right to remain in possession

with pleadings substantiated by the relevant documents. This was obligatory

for the plaintiff in view of the ratio laid down by the Supreme Court in the

case Maria Margarida Sequeria Fernandes and others v Erasmo Jack

de Sequeria (Dead) (supra). In the instant case, as already stated, the

plaintiff has miserably failed to produce even a single document in support

of his claim of right to possess the property in question. In the face of the

pleadings and documents placed on record by the defendants, prima facie, it

appears that the plaintiff does have any right to possess the property in

question. In these circumstances, the learned Appellate Court has rightly

observed that it was incumbent upon the plaintiff to seek an appropriate

relief in the suit so as to remove the cloud upon his right to possess the

property in question. A suit for injunction simpliciter prima facie was not be

the proper approach for the plaintiff to adopt.

17) So far as judgment of the Supreme Court in the case of Krishna Ram

Mahale (dead) vs. Mrs. Shobha Ventat Rao (supra) is concerned, the ratio

laid down in the said case cannot be made applicable to the instant case

CM(M) No. 193/2023

because in the said case, the entry of the trespasser in the suit property was

legal at the initial stage, which after the expiry of the licence, had become

unauthorised but in the instant case, very entry of the plaintiff in the suit

property appears to be illegal. Thus, the Courts below have rightly

concluded that possession of the plaintiff over the suit property is

unauthorised in nature which cannot be protected.

18) Apart from the above, the Supreme Court in the case of Shalini

Shyam Shetty and another vs Rajendra Shankar Patil 2010 (8) SCC 329

has emphatically laid down that power of superintendence conferred under

Article 227 of the Constitution ought to be exercised most sparingly and

only in appropriate cases in order to keep the subordinate courts within the

bounds of their authority and not for correcting mere errors of facts or of

law. The Court further laid down that power superintendence is not to be

exercised unless there has been an (a) unwarranted assumption of

jurisdiction, not vested in Court (b) gross abuse of jurisdiction (c) an

unjustifiable refusal to exercise jurisdiction vested in Courts. It was further

laid down that it is only if there is a flagrant abuse of the elementary

principles of justice or a manifest error of law patent on the face of the

record or an outrageous miscarriage of justice, that power of

superintendence can be exercised. The Supreme Court after discussing its

previous judgments on the issue formulated the following principles on the

exercise of High Court's jurisdiction under Article 227 of the Constitution:

"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

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(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(d) The parameters of interference by High Courts in exercise of its power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, `within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261 and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by

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the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article

227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this Article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.

(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality."

19) From the foregoing analysis of law on the subject, it is clear that it is

only in cases where there has been gross and manifest failure of justice or

basic principle of natural justice have been flouted that resort to power of

superintendence can be taken by the High Court. In the instant case, as

already stated neither the trial court nor the appellate court has committed

any error, much less a gross or a patent error, which has resulted in failure of

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justice. Therefore, there is no scope for interference in the orders passed by

the Courts below.

20) Viewed thus, there is no merit in this petition. The same is dismissed

accordingly.

(SANJAY DHAR) JUDGE

Jammu 20.10.2023 Karam Chand/Secy

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No