1. Dispute over ownership and possession of rooms in a religious shrine and the right to hold religious congregations in an adjacent open space. (Para 1 , 16 , 17 , 18 , 41 )
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1995 Supreme(SC) 700
SUPREME COURT OF INDIA
K.Ramaswamy : M.N.Venkatachaliah
Pt.Shamboo Nath Tikoo
Versus
S.Gian Singh
Case No. : .
Date of Decision : 6/30/95
Advocates Appeared: Chawla Ratan Lal : Dua K.C. : Francis V.J. : Gujaral M.S. : Gusain Monika : Jad Bimal Roy : Juneja G. : Mahajan Y.P. : Sehgal D.V. : Subramaniam V. : Yadav Usha
Advocates:
BIMAL ROY JAD, D.V.Sehgal, G.Juneja, K.C.DUA, M.S.GUJRAL, MONIKA GUSAIN, RATAN LAL CHAWLA, Usha Yadav, V.J.Francis, V.SUBRAHMANYAM, Y.P.MAHAJAN
BIMAL ROY JAD, D.V.Sehgal, G.Juneja, K.C.DUA, M.S.GUJRAL, MONIKA GUSAIN, RATAN LAL CHAWLA, Usha Yadav, V.J.Francis, V.SUBRAHMANYAM, Y.P.MAHAJAN
Permissive possession cannot be converted into adverse possession unless the possessor asserts a hostile title to the owner's knowledge for at least 12 years. The Court also utilized Article 142 to allow continued permissive use of religious premises to maintain communal harmony.
Headnote:
Limitation Act, 1908 – Article 142 – Plaintiffs while respondents were defendants in Civil Original Suit Filed in High court of Jammu and Kashmir in respect of Martand Shrine in Anantnag District – Decree sought for in suit was for grant of permanent injunctIOn to restrain defendants from interfering with plaintiffs possession of lands measuring 19 kanals 12 marlas in Survey respectively and Dharamshallas, temples and springs at Tirath Martand Village Macha Bhawan, Tehsil Anantnag from obstructing Hindus from their Worship of Gods in temples or of their performance of religious ceremonies at springs and putting up any constructIOns on disputed lands and for ejectment of defendants from two rooms out of six rooms of Dharamshalla on southern side of springs of Martand – Decree so sought for in suit was granted limited to extent of restraining defendants by permanent injunction from interfering in any way with performance of religious ceremonies by Hindus – Held, Would give a cause of action for Hindus plaintiffs to take legal proceedings against defendants to prevent them from holding Dewans or congregations in open space of Martand Shrine towards Pahalgam Road as is permitted by learned Judges Jalal-ud-Din and Farooqi, JJ. in their judgments in present appeal we answer point under consideratIOn accordingly in exercise of our jurisdiction for doing complete justice in cause or matter before us because of its extraordinary nature appeal is liable to be dismissed, subject to liability of defendants for ejectment from two rooms Shrine, if they misuse their permissive possession under which they are allowed to continue in those rooms and of liability of defendants to be restrained from using open space of Martand Shrine towards Pahalgam Road – to hold Dewans on three occasions every if they or their men misuse the permissIOn to hold such Dewans now granted by indulging in acts that WOuld cause obstructIOn or annoyance to Hindus in performance of their pujas or conducting religIOus ceremonies in the precincts of their own Martand Shrine – Appeal is dismissed.
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2. Whether possession of rooms was by grant or adverse possession versus permissive possession, and whether an easementary right existed for religious congregations. (Para 16 , 17 , 18 , 41 )
3. Findings of title based on grants not pleaded in written statements are unsustainable; easementary rights require proof of use as of right from time immemorial. (Para 19 , 20 , 21 , 22 , 24 , 26 , 36 , 42 )
4. Permissive possession cannot be converted into adverse possession unless the possessor asserts an adverse title to the owner's knowledge for twelve years or more. (Para 32 , 37 )
5. When does permissive possession convert to adverse possession?
Permissive possession does not automatically become adverse. The possessor must prove they asserted a hostile title to the property to the knowledge of the true owners for a continuous period of twelve years or more before the institution of the suit. (Para 32 , 37 )
6. Can a court grant relief based on a theory of ownership not pleaded in the written statement?
No. A finding of title based on a grant is unsustainable if such a case is not traceable to the pleas of defence set out in the written statements, as it constitutes a new case made out for the party. (Para 19 , 20 )
7. What is required to establish an easementary right to use open space for religious congregations?
The claimant must provide reliable evidence that the use was as of right from time immemorial or for a statutory period, rather than mere permissive use or joint possession, and that the use was not merely a result of convenience. (Para 42 )
JUDGMENT
VENKATACHALA
(1) APPELLANTS were the plaintiffs while respondents were defendants in Civil Original Suit No. 20 of 1958 Filed in the High court of Jammu and Kashmir in respect of Martand Shrine in Anantnag District. Decree sought for in the suit was for grant of permanent injunctIOn to restrain the defendants from interfering with plaintiffs possessIOn of lands measuring 19 kanals 12 marlas in Survey Plots Nos. 1424/4, 1962/1424/4 and 2304/1143/1 measuring 19 kanals 6 marlas, 6 marlas) and 9 kanals 18 marlas respectively and Dharamshallas, temples and springs at Tirath Martand, Village Macha Bhawan, Tehsil Anantnag; from obstructing Hindus from their WOrship of Gods in the temples or of their performance of religIOus ceremonies at the springs and putting up any constructIOns on the disputed lands; and for ejectment of the defendants from tWO rooms (converted into three rooms) out of six rooms of the Dharamshalla on the southern side of the springs of Martand. Decree so sought for in the suit was granted limited to the extent of restraining defendants by permanent injunctIOn from interfering in any way with the performance of religIOus ceremonies by Hindus at the three springs (Kamal Kund, Bimal Kund and Gauri Kund), or their conducting of pujas in the temples and of holding Dewans in the open space north of the springs towards Pahalgam side on the occasIOns of Mal Mas, Ban Mas, Suraj Grahan, Chand Grahan, Soma Wati Amawas (Amawas falling on Monday), Amar Nath Jee Yatra perIOd and Vijay Saptami (7th day of Hindus month falling on Sunday), and of plaintiffs possessIOn of the building situated to the north of Dharamshalla towards Pahalgam Road and from erecting any Gurdwara at the Martand premises. But, decree was refused as regards ejectment of defendants from the tWO rooms (converted into three rooms) of Dharamshalla in their possessIOn as also of permanent injunctIOn sought for in respect of 4 marlas of the land in Plot No. 2304/1143/1.
(2) THE said decree in the suit was questIOned by the plaintiffs in the First Appeal No. 83 of 1967 filed by them in the same High court to the extent it did not grant certain reliefs while the same was questIOned by the defendants insofar it had granted certain reliefs against them by filing Civil First Appeal No. 87 of 1967. A divisIOn bench comprised of Mian Jalal-ud-Din and Anant Singh, JJ. heard the said tWO appeals having clubbed them together. Since the learned Judges who rendered separate judgments in those appeals failed to reach an agreement on tWO of the points that arose for their consideratIOn therein, they requested the Honble chief justice, to refer the tWO points on which they had not agreed, to a third Judge for his opinIOn thereon by making the following order:
"AS my learned brother Anant Singh, J. and myself have not agreed in our respective judgments to the points relating to questIOns of adverse possessIOn and the right of holding Dewans by the defendants, the matter may, therefore, be placed before my Lord Honble the chief justice for referring these points to a third Judge to be nominated by his Lordships."
(3) MUFTI Baha-ud-Din Farooqi. J. being the third Judge to whom the said tWO points were referred for his opinIOn, adverts to those points in his judgment thus:
"ANANT Singh, J. held that the possessIOn of the defendants over the tWO rooms in the Southern Dharamshalla was permissive and could be revoked by the plaintiffs as successors of Dharmarth. As regards holding of Dewans on the open space he held that the use could be based on custom but in the absence of any reliable evidence showing that the Dewans were held every year on the specified occasIOn and were so held as of right from times immemorial no right could be found in favour of the defendants. On this view he held that the finding of the learned Single Judge on these tWO items should be set aside.
MIAN Jalal-ud-Din, J., however, expressed a contrary op
