Section 9 of the J&K Specific Relief Act allows a person to recover possession of immovable property if they have been dispossessed without their consent, and the court has the duty to ensure restoration of possession.

1. This civil 2nd appeal is directed against the judgment and decree passed by the 1st appellate court in an appeal titled as Manzoor Ahmad Mir and ors v. Ghulam Nabi War dated 30th April, 2010, whereby judgment and decree passed by the trial court viz. Sub Judge (Chief Judicial Magistrate) Srinagar, was upheld.

2. The following substantial question of law has been framed vide order dated 28th May, 2012:-

"Whether a party dispossessed from the subject matter of injunction suit during pendency of the suit, can press into service Section 9 of J&K Specific Relief Act for recovery of the possession?"

3. Respondent-plaintiff Ghulam Nabi War filed a suit for prohibitory injunc#31;tion against the defendants-appellants from causing any kind of interference in the peaceful possession of the plaintiff-respondent over the suit property i.e. land measuring 3676 sqft over which two sheds were constructed for storing timber situated at Khewan Narwara, Srinagar and ad-interim relief was granted restrain#31;ing the defendants-appellants from causing any kind of interference.

4. During the pendency of the suit, plaintiff-respondent moved an application for amendment and sought relief for recovery of possession on the ground that petitioner was dispossessed from the suit property, which was granted vide order dated 30th November, 1993.

5. Defendants have not questioned the same, and the amended writ petition was brought on record.

6. Defendant filed written statement. Issues were framed on 16th October, 1995. Trial court dismissed the suit vide judgment dated 11th February, 2006, was subject matter of appeal preferred by the plaintiff-respondent before Principal District Judge, Srinagar.

7. In appeal the trial court judgment was set-aside and suit was remanded back for disposal, vide judgment dated 6th November, 2007.

8. Trial court decreed the suit for recovery of possession in terms of Section 9 of J&K Specific Relief Act, for short as Act, vide judgment dated 16th May, 2009.

9. Feeling aggrieved, appellants questioned the same by the medium of appeal which was dismissed by the impugned judgment and decree.

10. Trial court as well as the Appellate Court after scanning the evidence held that plaintiff-respondent was dispossessed during the pendency of the suit and directed recovery of possession.

11. I have gone through the record and judgments. The trial court has recorded finding on facts and that is upheld by the appellate court. The findings returned on the basis of cogent evidence cannot be said to be perverse in any way.

12. The substantial question framed is not at all involved in this lis for the simple reason that the plaintiff filed suit for prohibitory injunction, obtained interim restraint relief, was dispossessed and immediately moved an application for amendment, which was granted. This development was not challenged by the defendants till today. So it was simply a suit for recovery of possession. The trial court as well as the appellate court held that the right of recovery is based on prior possession, so the question of title was not involved and accordingly decreed the suit in terms of Section 9 of the Act. If at all the defendant was aggrieved, he should have questioned the permission to amend the suit.

13. This Court in a case titled as Sudershan Singh v. Mohan Lal reported as 1981 KLJ 252 has discussed the scope of Section 9. Apex Court also in case reported as AIR 1989 SC 2097 titled as Krishna Ram Mahale (dead) by his LRs., v. Mrs. Shobha Venkat Rao, has held that a suit under Section 9 of the Act, can be brought on the basis of possession even against the licencer who has unlawfully dispos#31;sessed the licencee before the expiry of licence notwithstanding the fact that the period of licence has expired long back during the pendency of legal proceedings. It is apt to reproduce Para 8 and 9 herein:-

"8. Mr. Tarkunde, learned Counsel for defendant No. 3, the appellant herein, rightly did not go into the appreciation of the evidence ei

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