Surinder Singh vs Mohd.Yusuf

This is an appeal in a suit for permanent and mandatory injunctions directing the defendant to vacate the suit land on the grounds that he was a

pure and simple licensee claiming possession of the land as a servant of the appellant.

The suit was resisted by the defendant mainly on the ground that he was in possession of the suit land for more than 12 years and therefore had

acquired title by prescription. The trial court accepted the plaintiff's case and decreed the suit, but on appeal the D. J Anantnag reversed the

decision of the trial court and dismissed the plaintiff's suit, holding that the plaintiff had not proved that he was the owner.

I have gone through the judgment of the learned D. J. and I find that he has taken a very perverse and artificial view of the evidence. He has

completely ignored the background and the circumstances under which the defendant came into possession of the property. From the evidence

adduced by both the parties, it is more or less clear that the father of the defendant was a Motibar or a servant or employee of the plaintiff and

since this land does not form part of his orchard, the father of the defendant was allowed to live in a small house and to have a garden of his own

as he was an employee of the plaintiff. It is proved from the evidence that the father of the defendant died only in 1962 and all along his life he was

the Motibar of the plaintiff, If, therefore, the defendant asserted a hostile title against the plaintiff, it could only be after 1962 and not before. As the

suit was brought in September, 1967, the question of adverse possession does not arise The 'earned D. J. was impressed by one of the

circumstances which according to him want to show that the defendant was in possession of the land in his own right, In the first place he observed

that when some poplar trees were sold, the sale proceeds thereof were given to the defendant which shows that he was in possession of the suit

land. The learned D. J. has himself found that the plaintiff chose that the sale proceeds be given to the defendant under orders of the plaintiff which

was a conclusive proof of the fact that it was the plaintiff and not the defendant who was the owner of the popular trees grown on the land As to

why the plaintiff chose to give the sale proceeds of the poplar trees to the defendant was a different matter and was not germane to a decision of

this case. It may be that the defendant was not paid any salary and that is why he was given certain amenities and concessions to maintain himself.

The possession of the defendant as proved by his own witnesses is therefore in no way inconsistent with the ownership of the plaintiff. The learned

D. J. does not appear to have been fully alieve to the distinction between the possession of a trespasser and occupation by a licensee. I 1964 KLJ

141 a Division Bench of this court to which I was a party has clearly held that where a licensee approached the court for an injunction after the

license itself terminated, the injunction should be granted. It was also held that the licensee could not be treated as a trespasser, so long as his

occupation on the premises remained. The admitted position in this case is that the father of the defendant was a licensee of the plaintiff. There is no

reliable evidence adduced by the defendant to show as to when the possession of the defendant which to begin with was permissive as a licensee

became adversed. The learned D J was further impressed by the fact that the defendant was living in one of the houses situate in the suit land,

which also was not inconsistent with the status of the defendant as an employee, because it is the plaintiffs definite case that as an employee the

defendant was given a house to live in and was allowed the use of a garden. Therefore the possession of the house or the fact that the defendant

grew vegetables in the garden does not disprove the plaintiff's title of the ownership of the house.

Finally there is an important circumstances which knocks the bottom out of the defendant's case. The defendant based his title on a mutation

which was got entered into by him behind the back of the plaintiff. The plaintiff however approached the revenue authorities and the mutation was

set aside and the plaintiff was recorded as the person in possession, as owner of the land in dispute. The learned Judge, instead of relying on the

decision of the revenue court, which had undoubtedly a presumptive value, tried to sit in appeal over the decision of the Financial Cemmr. There

was absolutely no justification for the learned judge to have given no credence to the order of the Financial Commr. when the facts and

circustances of the case clearly prove that the mutation was made by the defendant by fraud, taking advantage of the absence of the owner.

Further more the learned D. J. has himself held that so far as the garden is concerned, it is separate from the suit property and therefore whatever

may have been the nature of possession of the defendant over it, he ought not to have drawn any adverse inference against that fact with respect to

the suit land. On the other hand the learned trial court has given cogent reasons for holding that the plaintiff was the owner of the suit land and the

defendant has miserably failed to prove his case that he had perfected his title by prescription.

On a careful consideration therefore of the evidence and the circumstances of the case, I am clearly of the opinion that :

(1) the plaintiff was the owner of the land in dispute and was in possession thereof through the defendant who was his employee.

(2) That the defendant has miserably failed to prove that he was in adverse possession of the land in question

In view of the findings recorded above, the appeal is accepted, the judgment and decree of the learned D J. are set aside, the judgments and

decree of the trial court are restored and the suit of the plaintiff is decree with costs throughout As the respondents are not present, there will be no

order as to costs in this court.