Decrees favoring individuals without substantiated claims of possession undermine legal protections for public property.

Headnote:(A) Jammu and Kashmir Code of Civil Procedure, Svt. 1977 - Order 43 Rule 1(r) - Permanent prohibitory injunction - The respondent's claim of possession of a suit shop owned by the Notified Area Committee was unsupported by evidence, leading to the trial court's decree being deemed perverse - The appellate court confirmed the denial of temporary injunction, highlighting the lack of evidence for possession. (Paras 6, 12, 15)

(B) Civil Procedure - The courts must ensure that decrees do not favor trespassers or encroachers of public property, and must be based on substantiated claims of possession. (Paras 15, 16)

Facts of the case:
The respondent filed a suit for permanent injunction against the State and Notified Area Committee, claiming possession of a suit shop, which was denied by both the trial and appellate courts due to lack of evidence.

Findings of Court:
The judgments of both lower courts were found to be perverse, as the respondent failed to establish rightful possession of the suit shop.

Issues: The main issues included the validity of the respondent's claim of possession and the appropriateness of the decrees granted by the lower courts.

Ratio Decidendi: The court ruled that decrees favoring individuals without substantiated claims of possession undermine the legal framework protecting public property.

Result: Appeal allowed.

ORDER :

1. Heard learned counsel for the appellants.

2. There is no representation on behalf of the respondents, as such, are proceeded ex parte. This is a civil 2nd appeal of 2017 related to a suit for permanent prohibitory injunction.

3. The respondent No. 1 came to prefer a civil suit on file No. 16/Civil on 17.05.2002 before the court of Munsiff, Rajouri. The suit was preferred against the State of Jammu and Kashmir and Notified Area Committee, Rajouri.

4. The civil suit was for permanent prohibitory injunction for restraining the defendants in the suit from inferring or forcibly evicting the respondent No. 1 as plaintiff from the suit shop situated at Tone Hall owned by the Notified Area Committee, Rajouri.

5. At present, Notified Area Committee’s successor authority is the Municipal Committee, Rajouri and the present appeal is being pursued by the Municipal Committee, Rajouri.

6. In the suit, the respondent No. 1 as plaintiff did not volunteer himself to come as a witness to depose as to how come he came to be in the suit shop which did not in any manner belong to him and as per his own admission is the property of Notified Area Committee, Rajouri. Just by a bald assertion that he was in use and occupation of a suit shop that too unsupported by his own statement, the respondent No. 1 still came to convince the trial court about the fact that the possession of the suit shop was with him and that resulted in decreeing of the suit by the court of Munsiff Rajouri in favour of the respondent No. 1.

7. In the civil suit, the respondent No. 1 as plaintiff had asked for temporary injunction from the then trial court of Sub Judge, Rajouri but the same was declined on the premise that the respondent No. 1 as plaintiff was not in possession of the suit shop in terms of an order dated 13.06.2002. The trial court of Sub Judge, Rajouri had observed that the respondent No. 1 as plaintiff had failed to make out his possession with respect to suit shop and, accordingly, not entitled to a temporary injunction.

8. Against this denial of temporary injunction in his favour, the respondent No. 1 as plaintiff had preferred an appeal before the Principal District Judge, Rajouri on file No. 9/Appeal of 2002 under Order 43 Rule 1(r) of the Jammu and Kashmir Code of Civil Procedure, Svt. 1977.

9. This appeal also came to suffer dismissal thereby confirming the denial of temporary injunction against the respondent No. 1 and even the appellate court was not able to convince itself about the so called claim of possession of the suit shop by the respondent No. 1.

10. In the plaint, the respondent No. 1 did not set up as to under which allotment order, he came to be in occupation of government property obtaining in the form of the suit shop and yet the suit came to be decreed by the trial court of Munsiff, Rajouri to whom the suit came to be later on transferred with effect from 25.09.2008.

11. In its judgment dated 19.05.2013, the court of learned Munsiff, Rajouri does not refer to the statement of the respondent No 1 as a plaintiff whereas the witnesses produced by the respondent No. 1, namely, Mohd. Maqbool, Abdul Slam, Mohd. Yaqoob, Bashir Ahmed, Abdul Qayoom and Mohd. Yunis have been referred in terms of their testimonies.

12. The suit came to be decreed by prohibiting the defendants/appellants from evicting the respondent No. 1 from the suit shop without adopting due course of law by virtue of the judgment and decree dated 29.05.2013 against which a civil 1st appeal preferred by the appellants/defendants/judgment debtors on file No. 04/Appeal on 29.08.2013 came to be dismissed by the court of the Principal District Judge, Rajouri by virtue of an appellate judgment dated 22.04.2017.

13. The appellate court came to confirm the fact that the suit shop was owned by the appellants but with respect to the possession of the respondent No. 1, the decree of the trial court came to take place despite the fact that he was not granted temporary injunction by the trial co

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