The main legal point established in the judgment is that the relief of possession can be granted under Order 7, Rule 7 of the Code of Civil Procedure, and a non-state subject cannot hold immovable property in proprietary rights.

ARUN KUMAR GOEL, J (ORAL)

1. This appeal has been preferred by the Legal Representatives of Des Raj Sharma, who was arrayed originally before the trial court, hereinafter referred to as the defendant, is directed against the judgment and decree of the first Appellate Court passed in File No. 15/Appealon25.07.1996. By means of this decree, appeal of the defendant was dismissed and judgment and decree of the trial court passed in favour of the respondent, hereinafter referred to as the plaintiff on 14.05.1992 in File No. 73/Civil has been upheld.

2. Plaintiff preferred a suit for mandatory injunction against the defendant on the averments that he purchased land measuring 1 kanal and 2 marlas, comprising in Khasra No. 331, situated at village Channi Himmat, Tehsil and District Jammu, vide Sale Deed EX.PA. This land was purchased by him from Vaishno Charan Singh-PW by means of the said Sale Deed. This Sale Deed is registered in the office of Sub Registrar, Jammu on 30.03.1984 on which date it was executed. Further case of the plaintiff was that he obtained possession from the Vendor and he surrounded the same by putting up fence. He claims that defendant has encroached 2 Marlas of land in the year 1985, when for the first time he raised Kacha Khokha and Paces construction was raised since 1989 in place of the earlier Kacha Khokha. Defendant was approached at this point of time by the plaintiff and meetings took place between the parties till December, 1989.

3. On the refusal of the defendant to vacate land in question, plaintiff obtained for demarcation, when it was reported that encroachment has been done by the defendant over 2 Marlas of land, out of what was purchased by the plaintiff vide EX.PA. Another plea put up by the plaintiff was that defendant is a non-state subject and therefore, he cannot acquire/retain possession of immovable property in the State of Jammu and Kashmir. Since defendant with a mischievous design intends to raise further construction, therefore, suit in question.

4. This suit came to be contested and resisted by .the defendant, who amongst things pleaded that the Court has no jurisdiction to try the suit, it being bad for non-joinder of parties and the same having not been properly valued for the purposes of Court fee and jurisdiction. On merits, it was asserted by the defendant that he is residing in the land measuring 2 Marlas for the last more than 25 years, which was purchased by him from Shri Vaishno Charan Singh about 25 years back and he has constructed Kacha House. Thereafter two Pacca rooms were constructed. Plaintiff claims himself to be a State Subject.

5. On the aforesaid pleadings of the parties, trial court framed the following issues: -

i. Whether the plaintiff purchased land measuring 1 kanal 2 marlas out of khasra No. 331, Khewat No. 190 from Vaishno Charan Singh and obtained possession of the same? O.P.P.

ii. Whether the defendant raised a Kullah in the year 1985 on land measuring 2 marlas approximately out of land purchased by the plaintiff without any right? O.P.P.

iii. In case issue No. 1 and 2 are proved in negative. Whether the defendant is in continuous possession of land measuring 2 marlas (land in dispute) for the last more than 25 years uninterruptedly? ... O.P.D.

iv. Whether the defendant has acquired ownership right in land in dispute on account of adverse possession (prescription)? ...O.P.D.

v. Whether the defendant purchased land in dispute from Shri Vaishno Charan Singh about 25 years back and constructed a Kucha house thereupon. ... O.P.D.

vi. Whether the defendant is a permanent State Subject and as such is entitled to acquire property in the State? ... O.P.D.

vii. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction, if so, what is proper valuation? ... O.P.D.

viii. Whether this Court is not competent to try this suit? ... O.P.D.

ix. Whether the suit is bad for mis-joinder of parties, if so, how? ... O.P.D.

x. To what