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2010 Supreme(J&K) 283
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sunil Hali, J.
Mohd. Shaban Bhat -Appellant
Versus
State & Ors. -Resopndent
OWP No. 642-S-2004 & CMP No. 1174-S-2004
Decided On : 12-04-2010
Vipan Gandotra, A.H. Qazi, R. Koul.
Possession rights cannot be claimed solely based on a receipt or agreement to sell, and the status of a Chowkidar does not grant any interest in the property without written consent.
Headnote:
Eviction - Property Rights - The petitioner claimed possession of the land based on a receipt and an agreement to sell, as well as his status as a Chowkidar. The court held that the receipt and agreement to sell did not confer any right to possession, and the petitioner's status as a Chowkidar did not grant him any interest in the property. The court concluded that the petitioner did not have written consent to be in possession and dismissed the petition.
Fact of the Case:
The petitioner sought to challenge an eviction order issued by the Deputy Commissioner Budgam, claiming possession of the land based on a receipt and an agreement to sell, as well as his status as a Chowkidar.
Finding of the Court:
The court found that the receipt and agreement to sell did not confer any right to possession, and the petitioner's status as a Chowkidar did not grant him any interest in the property. The court concluded that the petitioner did not have written consent to be in possession and dismissed the petition.
Issues: The main issue was the right of the petitioner to be in possession of the property based on the receipt and agreement to sell, as well as his status as a Chowkidar.
Ratio Decidendi: The court held that the receipt and agreement to sell did not confer any right to possession, and the petitioner's status as a Chowkidar did not grant him any interest in the property. The court concluded that the petitioner did not have written consent to be in possession and dismissed the petition.
Final Decision: The petition was dismissed by the court.
2. It is contended by learned counsel for the petitioner that receipt stood issued by respondent no.4 on account of sale of land measuring 16 and a half marlas under Survey no. 1142 situate at Natipora Tehsil Chadoora District Budgam. The receipt reveals that final payment would be made by the petitioner at the time of execution of the sale deed. The petitioner claims to be in possession of the land on account of acknowledgement of having received the amount by respondent no.4. In alternative he states that prior to the execution of this agreement, petitioner was working as a Chowkidar of the property on behalf of respondent no.4, which status has been acknowledged by the respondents in their application filed before the District Magistrate. It is further contended that petitioner was not given proper hearing by the District Magistrate before passing the impugned order, as such, it has resulted in violation of rules of natural justice.
3. The contention of the respondents on the other hand is that even though there is a receipt executed by respondent no.4 in favour of the petitioner, it only acknowledges receipt of payment but does not confer any right on the petitioner to have the possession of the property. It is stated that definition clause defines an un-authorized occupant. It states that any person who has no written consent of the migrant is an un-authorised occupant. Mere issuance of a receipt or an agreement to sell does not confer any right on the petitioner to be in possession of the property. The petitioner continues to be an un-authorized occupant of the land and is liable to be evicted from the same. The other contention of the petitioner that he was not heard, is not well founded, as, on his own showings, petitioner has appeared before the District Magistrate and the order has been passed only after hearing him.
4. After having said so, even if there was an infraction in the process of giving opportunity of hearing, same does not hold good as it has not been stated in clear terms as to what was the nature of the infraction.
5. Mr. Qazi states that petitioner has an alternate remedy of filing appeal against the impugned order.
6. I have heard the learned counsel for the parties.
7. The only controversy which is involved in the present writ petition relates to the right of the petitioner to be in possession of the property on the basis of receipt issued by respondent no.4 and the promise to sell the property to him and the fact of being Chowkidar of the property. It is in this narrow compass that the right of the petitioner has to be looked into.
8. It is not in dispute that respondent no.4 has issued a receipt of Rs. 90,000/- with a promise to sell the land in question to the petitioner. It is also not in dispute that there is no stipulation in the receipt that the possession of the land has been handed over to the petitioner. Assuming that some right has accrued to the petitioner in respect of the property, that right is only to seek a specific performance of the contract in case respondent no.4 decides not to execute a sale deed with the petitioner or seek recovery of the amount paid by the petitioner to respondent no.4. Both these rights undoubtedly did not confer any right in the petitioner to be in occupation of the property. Agreement to Sell, admittedly, does not confer any right or title on the petitioner. His right to remain in possession as a Chowkidar is a right which he possesses on account of some one else. In law if one person holds a thing on behalf of a person who holds the possession he cannot claim any interest on his own. The person on whose behalf he holds the possession has the sole possession over the property. It cannot be construed that petitioner is in occupation of the property in his own right. The possession shall alway
