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PETITIONER:

NAGAR PALIKA, JIND.

Vs.

RESPONDENT:

JAGAT SINGH, ADVOCATE.

DATE OF JUDGMENT28/03/1995

BENCH:

SINGH N.P. (J)

BENCH:

SINGH N.P. (J)

VERMA, JAGDISH SARAN (J)

CITATION:

1995 AIR 1377 1995 SCC (3) 426

JT 1995 (3) 281 1995 SCALE (2)512

ACT:

HEADNOTE:

JUDGMENT:

N.P. SINGH, J.:

1. The Municipal Committee, Jind, has filed this appeal

for setting aside the judgment of the Additional District

Judge (hereinafter referred to as 'the Court of Appeal')

decreeing the suit filed on behalf of the respondent, which

had been dismissed by the Trial Court. The Second Appeal

filed on behalf of the appellant, before the High Court was

dismissed in limine. Thereafter, Special Leave Petition

(Civil) No.562 of 1987 was filed before this Court, which

was permitted to be withdrawn, to enable the appellant to

file a Review Petition before the High Court. That Review

Petition was dismissed by the High Court saying that no

ground for review had been made out.

2. The respondent filed the suit in question for

injunction restraining the appellant from interfering with

the possession of respondent over 5 kanals of land, com-

prised in Khewat No. 134, Khatoni No. 155, rectangle No.

173, Killa No.27/1. The respondent claimed to be the owner

of the said land and asserted that he was in possession

thereof.

3. The claim of the respondent was resisted on behalf of

Municipal Committee saying that the said respondent was nei-

ther the owner of the land in question nor he was in

possession thereof. It was asserted that the land being

"gair-mumkin johar", in which the Municipal Commitee had

already constructed a park, there was no question of the

respondent acquiring any right title interest in the same.

According to the appellant, the said respondent had made

some unauthorised encroachment over the same because of

which a statutory notice was given to him, which was

challenged by the said respondent in the suit in question.

4. The learned subordinate Judge on consideration of the

materials on record came to the conclusion that the

respondent had failed to prove that he was the owner and was

in possession of the suit land. On that finding the suit

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was dismissed. The Court of Appeal, set-aside the finding

recorded by the Trial Court and decreed the suit of the

respondent, saying that the tide of Prem Singh, who was

alleged to be the predecessor in interest of the respondent,

had been established. It was also held that the appellant

was in possession of the suit property. The Second Appeal

filed on behalf of the appellant-Municipal Committee as

already mentioned above was dismissed. The Review Petition

filed to recall the order of dismissal of the Second Appeal

was also dismissed in limine.

5. It may be mentioned at the out-set that throughout the

suit has been treated to be a suit based on title and for

confirmation of possession. The learned counsel, appearing

for the appellant-Municipal Committee, pointed out that the

Court of Appeal while decreeing the suit of the respondent,

committed a serious error of law when before examining the

question as to whether respondent had been able to establish

his title over the suit land, it proceeded to consider only

the materials on record in support of the claim of the pos-

session made on behalf of the respondent. The- Trial Court

had examined the claim

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of the title made on behalf of the respondent in detail and

had recorded a finding that the said respondent had failed

to prove his title to the suit. Even the sale deed through

which the said respondent claimed to have purchased the land

in dispute had not been produced before the Court. An

objection was taken on behalf of the appellant against that

part of the judgment of the Court of Appeal, where it has

been stated that although the respondent had not produced

the sale deed through which he had acquired the title to the

land in question but that was of no consequence as that fact

had been admitted by the Municipal Committee. In this

connection, reference was made to the written statement

filed on behalf of the Municipal Committee disputing the

title and possession of the respondent. Our attention was

drawn to the plaint, filed on behalf of the respondent, and

the written statement filed on behalf of the appellant. The

respondent has simply stated in respect of his title and

possession in paragraph 1 of the plaint:

"That plaintiff is owner and in possession of

the property details of which are given in the

head note of the plaint.

The head note of the plaint says:

"Suit for permanent injunction restraining the

defendant from taking forcible possession of

the land comprised in khewat No.113 Khatoni

No.155 Rect. No.173 Killa No.27/1 measuring 5

kanals as pr Jamabandi 1974-75 situated in the

revenue estate of Jind and further restrainin

g

the defendant from interferring into pos-

session of the plaintiff and further

restraining the defendant from raising any

construction on it".

No details have been stated in the plaint as to how the

respondent became the owner of the land in question and when

he came in possession thereof. On reading paragraph 1 along

with 'head note' aforesaid, it appears that the claim for

title has been made on behalf of the respondent only on

basis of jamabandhi for the year 1974-75 of the revenue

estate of Jind. Inspite of our repeated quarries to the

counsel appearing for the respondent, no explanation was

furnished on behalf of the respondent, as to how in a suit

based on title no details in respect of the acquisition of

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the title were stated in the plaint. In the written

statement filed on behalf of the Municipal Committee in

respect of the assertion made in paragraph 1 of the plaint,

it has been said:

"That para 1 of the plaint is and denied. The

plaintiff is not in possession of the suit

property. In fact suit property is Gair-Mum-

Kin Johar. Nagarpalika has converted it into

park. Suit property is of Nagarpatika,Jind

and the plaintiff has no concern with the suit

property".

6. The counsel appearing for the respondent, could not

explain as to how in face of such clear denial of the title

and possession of the respondent by the Municipal Committee

in its written statement, the Court of Appeal proceeded on

the assumption that the acquisition of the title through the

sale deed, which had not been produced before the court, was

an admitted fact in the case and had never been questioned

by the Municipal Committee. According to us, when the Court

of Appeal proceeded to consider the evidence relating to the

possession of the respondent after the alleged date of

purchase by him through the sale deed in question, which was

never produced before the Court, the Court of Appeal

committed a grave error. It never applied its mind to the

main is-

285

sue, in a suit based on title, whether the respondent had

proved his title to the suit property. It cannot be

disputed that onus to prove his title to the property in

question was on the said respondent. It further appears,

that on behalf of the appellant, it was pointed out before

the Court of Appeal that the said respondent was claiming

the share of one of the co-sharers in the patti, but no co-

sharer can convey title to a specific part of joint

property. Having omitted to consider the basic issues in

the case, the Court of Appeal proceeded only to consider the

revenue records from the year 1974-75 like jamabandhi for

the year 1974-75 and Khasra Gindwari pertaining to the year

1977-79.

7. The claim of the respondent was that he had purchased

the suit land through a sale deed in the year 1970.

Thereafter he filed a suit on 17.4.1971 for permanent

injunction against the appellant. 'Mat suit was ultimately

withdrawn on 7.11.197 with permission to file a fresh suit.

Ultimately, the suit with which we are concerned was filed

on 23.8.1979. In this background any reliance on entries in

the revenue records after 1971 was of not much consequence

and value, because the respondent had already instituted the

earlier suit which was then pending. In any case, an order

of mutation in the name of the respondent in the revenue

records can not be ;a source of title. In the case of

Nirman Singh v. Lal Rudra Partab, 1926 PC 100, in respect of

mutation of names in revenue records, it was said:

"They are nothing of the kind as has been

pointed out times immunerable by the Judicial

Committee. They are much more in the nature

of fiscal inquiries instituted in the interest

of the State for the purpose of ascertaining

which of the several claimants for the

occupation of certain denominations of

immovable property may be put into occupation

of it with greater confidence that the revenue

for it will be paid.

It is little less than a travesty of judicial

proceeding to regard the two orders of the

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Extra Commissioner of Bahraich and

Mr.M.L.Ferrar, Deputy Commissioner, as

judicial determinations expelling proprio

vigore any individual from any proprietary

right or interest he claim in immovable

property".

8. Faced with this situation, the learned counsel for the

respondent, took a stand that even if the respondent had

failed to prove his title, the suit filed on behalf of the

respondent, should be treated as a suit based on possession

and dispossession in terms of Section 6 of the Specific

Relief Act, 1963. Once a suit has been filed by the

respondent claiming to be the owner and being in possession

of the land in question, how that suit can be treated as a

suit based on possession and dispossession Section 6 of

without reference to title? the Specific Relief Act, 1963

says that if any person is dispossessed without his consent

of immovable property otherwise than in due course of law,

he or any person claiming through him may, by suit, recover

possession thereof, notwithstanding any other title that may

be set up in such suit. Section 6 is a corresponding

provision to Section 9 of the Specific Relief Act, 1877,

Section 9 of the earlier Act, which has been retained with

some changes in the Specific Relief Act, 1963 is based on

the principle that even a trespasser is entitled to protect

his possession except against a true owner and purports to

protect a person in Possession from being dispossessed

except in due course of law. Section 6

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provides a summary remedy for a person who, being, in

possession of immovable property is ousted therefrom. In

such circumstances, it is possible that the person so

dispossessed may pursue summary and speedy remedy through

the medium of the Civil Court for restoration of possession.

It has been said that this Section is a reproduction of

provision of the Roman Law under which by an interdictum de

vi a person wrongfully dispossessed from property could

recover it by proving previous possession, without being re-

quired to prove his title. Disputed questions of title are

to be decided by due process of law but the peaceful

possession is to be protected from a trespasser under

Section 6 of the Act without regard to the question of the

origin of the possession. Such suit can be entertained and

decreed only where both the plaintiff and the defendant have

no title to the suit land, but as the plaintiff proves his

prior possession because of that he is entitled to a decree

for possession against the defendant who has dispossessed

him. The plaint of such a suit must aver only previous

possession and dispossession by the defendant, other wise

than in due course of law. In the case of Perry v.

Clissold, 1907 AC 73, it was said: -

"It cannot be disputed that a person in

possession of land in the assumed character of

owner and exercising peaceably the ordinary

rights of ownership has a perfectly good title

against all the world but the rightful owner.

And if the rightful owner does not come

forward and assert his title by the process of

law within the period prescribed by the

provisions of the statute of Limitation

applicable to the case, his right is for ever

extinguished and the possessory owner acquires

an absolute title. "

The aforesaid view was approved by this Court in the case of

Nair Service Society v, K.C. Alexander, AIR 1968 SC 1165 =

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(1968) 3 SCR 163. This Court said in connection with the

plaintiff of that case that he being in peaceful possession

was entitled to remain in possession and only the State

could evict him. It was further said that the action of the

Society was a violent invasion over the possession of the

plaintiff. It was pointed out:-

"...the law as it stands in India the plain-

tiff could maintain a possessor suit under the

provisions of the Specific Relief Act in which

title would be immaterial or a suit for

possession within 12 years in which the

question of title could be raised."

9. We fail to appreciate as to how the principle of

Section 6 of Specific Relief Act, 1963 can be applied in the

facts and circumstances of the present case. The

respondent, who was the plaintiff, never alleged that he had

been dispossessed by the appellant-Municipal Committee. On

the other hand, he claimed to be the owner of the land in

question and asserted that he was in possession over the

same. He sought for permanent injunction restraining the

appellant from interfering with his possession. Both the

parties led evidences in support of their respective claims

including on the question of title.

10.It was pointed out, on behalf of the appellant, that in

the records, land including the portion which is in the

dispute had been recorded as gair mumlkin johar which means

a public pond. The Trial Court referred to all documentary

evidences in support of the finding that the respondent was

attempting to encroach upon a portion of a public land, over

which he could

287

not have acquired any title. The Court of Appeal, instead

of finding from the materials on record whether the

respondent as plaintiff has proved his title and subsisting

settled possession in respect of the disputed land,

proceeded to record a finding on the claim of the possession

of the respondent, primarily on basis of the entry in the

revenue records made in the year 1974-75 and thereafter

during the pendency of the first suit filed on behalf of the

respondent. The Court of Appeal committed a substantial

error of law by decreeing the suit of the respondent without

recording a finding in respect of his claim of title over

the suit land. We are of the view that the High Court could

not have dismissed the Second Appeal filed on behalf of the

appellant-Municipal Committee in limine.

11.On behalf of the respondent, reference was made to the

case of Chhote Khan v. Mal Khan, AIR 1954 SC 575, where it

was said by this Court that entries in Jamabandhies fall

within the purview of the record of rights under Section 31

of the Punjab Land Revenue Act and as such are to be

presumed to be, true until the contrary is proved.

Reference was also made to the case of Durga Singh v. Tholu,

AIR 1963 SC 361, where it was said that in an ejectment suit

a finding by the District Judge on the question whether the

defendants were the tenants of the plaintiff arrived at, on

the consideration of all evidence, oral and documentary,

adduced by the parties, was a finding of fact and could not

have been set aside in Second Appeal by the High Court.

Reliance was also placed on the case of Vishwa Vijay v.

Fakhrul Hassan, AIR 1976 SC 1485, in which this Court held

that the finding o lower appellate court on the question

whether entries in revenue record were genuine or fraudulent

was a question of fact and could not be set aside in Second

Appeal. It has already been pointed out that the Court of

Appeal without considering the question whether the

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plaintiff-respondent had proved his title to the property in

dispute proceeded to examine whether the said respondent was

in possession thereof In a suit for ejectment based on title

it was incumbent on part of the Court of Appeal first to

record a finding on the claim of title to the suit land made

on behalf of the respondent. The Court of Appeal never

inquired or investigated that question which was at issue

saying that the title of the plaintiff-respondent was

admitted by the appellant. This was a serious error of

record. The title and possession of the respondent had

always been disputed by the appellant from the stage of the

written statement. In this background, suit of the

respondent could not have been decreed merely on basis of

entries in the revenue records during the pendency of the

earlier suit filed in the year 1971. As such the cases

relied upon on behalf of the respondent have no bearing on

the facts of the present appeal. A substantial question of

law was involved in the Second Appeal presented before the

High Court against the judgment of the Court of Appeal and

the High Court ought to have interfered and set-aside the

judgment of the Court of Appeal.

12. Accordingly, the appeal is allowed. The judgment of the

Court of Appeal and the orders passed by the High Court are

set aside. The judgment of the Trial Court is restored.

There is no question of injuncting the appellant from taking

further steps in connection with the suit land over which

the respondent had neither title

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nor he was in possession thereof However, in the facts and

circumstances of the case, there shall be no orders as to

cost.