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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Ajay Mohan Goel, J
Bhisham Sigh & another – Appellant
Versus
H Roop Dassi – Respondent
CMPMO No.37 of 2023
For the Appellants/Petitioners: M/s Nitin Thakur and Udit Shourya Kaushik
For the Respondents: Mr. Sative Chauhan
Courts reaffirmed that where clear evidence of ownership exists in revenue records, claims of adverse possession must be substantiated with compelling evidence.
Headnote:(A) Code of Civil Procedure, 1908 - Order 39, Rule 1 and 2 - The petitioners challenged the orders of the learned Trial Court and Appellate Court which granted interim relief in a suit for permanent prohibitory and mandatory injunction against alleged encroachment of property. The courts found that the respondent was the recorded owner and in possession of the suit land, refuting claims of adverse possession by the petitioners due to lack of evidentiary support. (Paras 2, 3, 5, 8)
(B) Temporary Injunction - The standard for granting interim relief requires a prima facie case, the balance of convenience, and avoidance of irreparable harm - Courts held that deficiencies in the petitioners' evidence undermined their claims for such relief. (Paras 4, 6, 7)
Facts of the case:
Respondent filed for injunction against petitioners claiming ownership and possession of the suit land. The Trial Court ruled in favor of the respondent based on revenue records demonstrating ownership.
Findings of Court:
Both courts upheld the respondent's claim of ownership, finding inadequate evidence of adverse possession from the petitioners.
Issues: Whether the petitioners could substantiate their claims of adverse possession against the evidence provided by the respondent.
Ratio Decidendi: Courts emphasized the primacy of revenue records in establishing ownership and possession; mere affidavits without further substantiation were insufficient to counter such records.
Result: Petition dismissed, interim order vacated.
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| 1. petitioners challenge court orders on property ownership. (Para 1 , 2) |
| 2. defendants argue for adverse possession against plaintiff's evidence. (Para 4) |
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioners have challenged the orders passed by the learned Trial Court as well as the learned Appell ate Court, in terms whereof, the application filed under Order 39, Rule 1 and 2 of the Code of Civil Procedure alongwith civil suit by the present respondent was allowed and the appeal preferred by the petitioners herein against the order passed by the learned Trial Court was dismissed.
2. Brief facts necessary for the adjudication of this case are that the respondent/ plaintiff has preferred a suit against the defendants/petitioners for permanent prohibitory injunction and mandatory injunction on the ground that the plaintiff is owner in possession of the suit land and the defendants without any right are making endeavour to encroach upon the suit land. An application
was also filed alongwith the plaint under Order 39, Rule 1 and 2 of the Code of Civil Procedure, praying for the interim reliPef. In terms of the order passed by the learned Trial Court, dated 11.04.2022, said application was allowed. Learned Trial Court held that in terms of the revenue records, the plaintiff was recorded as owner of the suit land and one Munshi was recorded in possession as Gair Marusi. This Munshi was the grand-mother of the plaintiff who was dead and presently the suit land was coming in possession of the plaintiff. On the other hand, the defendants had denied the possession of the plaintiff over the suit land and claimed ownership by way of adverse possession. Learned Trial Court observed that at this stage there was nothing on record to demonstrate that the defendants were in possession of the suit land. It further held that possession followed the title and as the plaintiff was recorded owner in the revenue record, therefore, unless contrary was proved, it has to be presumed Hthat the plaintiff was also in possession of the suit land. On these basis, the interim was granted by the learned Trial Court, ordering that the defendants were restrained from making any encroachment over the suit land.
3. Learned Appellate Authority upheld the order passed by the learned Trial Court. It held that in terms of the latest jamabandi, the plaintiff was recorded as owner in possession over the suit land, whereas, on the other hand, the contention of the defendants that they had become owners by way of adverse possession was still to be adjudicated in the course of trial and therefore, in light of the fact that the defendants could not place any documePnt including photograph to suggest that they were in possession of the suit land, there was nothing wrong with the order passed by the learned Trial Court.
4. Learned Counsel for the petitioners argued that both the learned Courts erred in not appreciating that the defendants had proved by placing on record the affidavits of the neighbours who had categorically stated in the affidavits that the defendants were in possession over the suit land since the year 1970 and had thus perfected their title by way of adverse possession. He submitted that in light of the fact that there was perversity writ large on the face of the record as far as impugned orders were concerned, the petition be allowed and the impugned orders be set aside. Learned Counsel further submitted that in case the impugned orders are allowed to Hremain, then it would amount to granting final relief by way of interim relief.
5. On the other hand, learned Counsel for the respondent argued that there is no perversity in the orders passed by the learned Courts below as the findings given therein are duly borne out from the record of the case. He submitted that it was a matter of record that the revenue documents which were placed on record by the plain
