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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 Thereafter, Special  Leave  Petition (Civil)  No.562 of 1987 was filed before this  Court,  which was  permitted to be withdrawn, to enable the  appellant  to file  a Review Petition before the High Court.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 284 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 6 286 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 288 nor  he was in possession thereof However, in the facts  and circumstances  of the case, there shall be no orders  as  to cost.