HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU MA No 45/2025 CM No. 5555/2025 Cav No. 1923/2025 Chuni Lal …..Appellants Through: Mr. Sachin Sharma, Advocate Vs UT of J&K and ors. .…. Respondents Through: Mrs. Monika Kohli, Sr. AAG CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 01.09.2025 1. Through the medium of present appeal, the appellant/plaintiff has challenged order dated 22.07.2025 passed by the learned District Judge, Udhampur whereby application of the appellant/plaintiff under Order 39 Rule 1 & 2 CPC for grant of interim relief has been dismissed. 2. Issue notice to the contesting respondent Nos. 1 to 3. Mrs. Monika Kohli, learned Sr. AAG accepts notice on their behalf. Caveat stands discharged. 3. Heard and considered. 4. It appears that the appellant/plaintiff has filed a suit against respondent Nos. 1 to 3 (contesting defendants) and respondent Nos. 4 & 5 (proforma defendants) seeking declaration that he along with proforma defendants have become owner of the land measuring 06 marlas falling in khasra Nos. Sr. No. 114 2 MA No 45/2025 1852/1851/1614 situated at village Manthal (Mand) Tehsil and District Udhampur by way of adverse possession. The appellant/plaintiff has also sought a permanent prohibitory injunction against the contesting defendants restraining them from interfering in his peaceful possession over the suit land with a further direction that he should not be dispossessed from the shops constructed on the suit land nor the said shops should be dismantled. 5. It has been pleaded that the plaintiff as well as proforma defendants and their ancestors have been in continuous and uninterrupted possession of the suit land for the last more than 100 years. According to the plaintiff, Jamabandi of the year, 1957-58 reflects the possession of his grandfather namely Sarban and one Mansa Ram over the suit land but in fact, Mansa Ram has never remained in possession of the said land and whole of 06 marlas of land remained in possession of the plaintiff and proforma defendants. It has been submitted that the plaintiff and proforma defendants constructed shops over the suit land and have been operating their business from these shops. The plaintiff claims that he is in occupation of three shops but due to construction of the highway, the said shops became useless because the height of the road was raised. According to the plaintiff, he has recently renovated the said shops and has raised the level of these shops to the level of the road. It has been pleaded that possession of the plaintiff and proforma defendants 3 MA No 45/2025 over the suit land is continuous, uninterrupted and hostile towards rights of contesting defendants for the last 100 years and the said defendants have been totally ousted from the said land. 6. It has been further pleaded that possession of the plaintiffs is hostile to the knowledge of the contesting defendants and as such, the plaintiff has perfected his title over the suit land and has become owner of the same by way of adverse possession. The possession of the plaintiff over the suit land is stated to be reflected in Kharief 2011 and Rabi 2017 as well. It has been submitted that in the year, 2012 the contesting defendant No. 2 lodged an FIR No. 16/2012 for offences under Section 447-A RPC alleging commission of criminal trespass by the plaintiff. The FIR, after investigation, culminated in filing of the Challan against the plaintiff. It has been submitted that the said Challan has been dismissed by learned Special Mobile Magistrate, Udhampur vide judgment dated 24.05.2018 and the plaintiff has been acquitted of the charges. 7. It has also been pleaded that in August, 2018, the plaintiff filed an application before Deputy Commissioner, Udhampur for seeking reconstruction of the shops and a report was called by the Deputy Commissioner. According to the plaintiff, one of the shops constructed over the suit land is in the name of his son and an electric connection has been obtained in his name. It has been pleaded that contesting defendant Nos. 2 & 3 are trying to forcibly dispossess the plaintiff from the suit land 4 MA No 45/2025 and they are also trying to dismantle the shops constructed on the suit land. 8. The suit has been contested by the contesting defendants by filing their written statement. In their written statement, it has been pleaded that the plaintiff is an unauthorized occupant of the State land and even long possession for a long period does not confer ownership rights upon him. It has been submitted that the land in question is public land and any construction or use of the land without proper authorization amounts to encroachment which the State has right to remove. It has been contended that claim of the plaintiff regarding title on the basis of adverse possession is not supported by any material and the requisite pleadings. 9. According to the contesting defendants, the fact that they had lodged an FIR against the plaintiff for criminal trespass and the fact that proceedings under Section 133 and 139 of the Land Revenue Act were initiated by the contesting defendants against the plaintiff clearly shows that contesting defendants have never acquiesced in unauthorized occupation of the land in question by the plaintiff. It has been submitted that in the year, 2020, the entries in the revenue record in respect of the suit land have been expunged. It has been further contended that in view of the directions issued by Division Bench of this Court in the case of S.K Bhalla Vs. State of J&K contesting defendants are duty bound to remove all encroachments of the State land and as 5 MA No 45/2025 such, civil Court cannot entertain a claim which is contrary to the directions of the Division Bench of this Court. 10. The contesting defendants have denied the claim of the plaintiff that he is in uninterrupted possession of the suit land for the last more than 100 years. It has been claimed that merely because there is an entry of possession in favour of the plaintiff in old revenue record does not mean that he has been in continuous and uninterrupted possession of the suit land. According to the contesting defendants, their entries only convey that the plaintiff has been in unauthorized occupation of the suit land during the years Kharief 2011 and Rabi 2017. 11. The contesting defendants have alleged that the plaintiff has tried to raise fresh construction on the suit land whereafter, notices under Land Revenue Act were issued to the son of the plaintiff and when he did not stop the construction, eviction notice was served upon the plaintiff through his son and police was also involved so that the construction raised by the plaintiff is demolished. It has been further pleaded by contesting defendants that the plaintiff was in possession of small patch of land on spot which came under acquisition and he along with co- sharers have been paid a sum of Rs. 3,90,000/- as compensation for the structures raised on spot. 12. Learned trial Court after hearing the parties has, vide impugned order dated 22.07.2025 proceeded to decide the 6 MA No 45/2025 application of the plaintiff under Order 39 Rule 1 & 2 CPC for grant of interim injunction. The said application has been dismissed by the learned trial Court by holding that the plaintiff’s claim with regard to ownership by way of adverse possession of the suit land is prima-facie not tenable. The learned trial Court has further observed that in view of the directions passed by this Court and the Supreme Court in several cases, the plaintiff cannot be allowed to raise construction on the State land. Thus, according to the learned trial Court even the balance of convenience does not lie in favour of the plaintiff. Consequently, the learned trial Court has proceeded to dismiss the application of the plaintiff under Order 39 Rule 1 & 2 CPC by virtue of impugned order. 13. The appellant/plaintiff has challenged impugned order passed by the learned trial Court on the grounds that the learned trial Court has based its opinion on the strength of misleading averments made by the contesting defendants in their written statement. It has been contended that passing of the impugned order by the trial Court has resulted in forcible demolition and dispossession of the plaintiff from the suit land/building. It has also been contended that the observations of the trial Court that there is inherent inconsistency in the case of the plaintiff are also without any basis. It has further been pleaded that there is ample proof that the plaintiff is in continuous and uninterrupted possession of the suit land but the same has been ignored by the 7 MA No 45/2025 learned trial Court. It has also been contended that in terms of Article 112 of the Limitation Act, the plaintiff has perfected his title because he has succeeded in showing that he has been in possession of the suit property for more than 30 years and his possession is open and hostile to the contesting defendants. According to the appellant/plaintiff, reliance placed by the trial Court on judgments of this Court and judgments of the Supreme Court which provide for removal of unauthorized encroachment on the State land is misplaced in the facts and circumstances of the case. 14. The case of the plaintiff is that he has been in uninterrupted and continuous possession of the suit land for the last more than 100 years and this possession is open and hostile to the knowledge of the contesting defendants. Therefore, he has become owner of the suit land by adverse possession. In this regard, it is to be noted that in order to establish the plea of adverse possession against the State merely because the plaintiff is shown to be in possession over a period of more than 30 years would not entitle him to be declared as owner by way of adverse possession. When a person claims ownership by way of adverse possession of State land, the Court has to scrutinize and analyze his claim with more seriousness and with more care because if a Court passes a decree in favour of plaintiff in such a case, it would amount to conferring title upon him on State resources which is a public trust. Destruction of right and title of the State 8 MA No 45/2025 to immovable property has serious consequences on State resources. 15. The Supreme Court has, in the case of “R. Hanumaiah Vs. Secretary to Government of Karnataka, Revenue Department”; (2010) 5 SCC 203 laid down the principles of law indicating the nature of proof required in a suit for declaration of title against the Government. The relevant observations of the Supreme Court are reproduced as under:- “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements. 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the 9 MA No 45/2025 presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title). 17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.” 16. From the foregoing analysis of legal position on the subject, it is clear that merely because there are entries in the revenue record in favour of a litigant claiming title by way of adverse possession against the State would not be sufficient to confer title upon him. It is only the entries based upon actual verification of the possession on spot which can be used against the Government. It is also clear that plaintiff has to establish his adverse possession to the knowledge of the Government for a period of more than 30 years so as to convert his possession into 10 MA No 45/2025 title. A permissive, casual or occasional possession may not be sufficient to create any right adverse to the Government. 17. In the light of the aforesaid legal position, let us now advert to the facts of the present case. In the plaint, it has been pleaded that the plaintiff has been in possession of the suit land for the last more than 100 years. The revenue record which has placed on record is pertaining to the year, 1957-58 which shows possession of predecessor-in-interest of plaintiff and one more person namely Mansa Ram over the suit land and the name of owner is shown as the State. Another document on which plaintiff has placed reliance is copy of khasra girdawari for the year, 2011 in which name of the plaintiff along with name of Mansa Ram is shown to be in possession of the suit land. Similar is the position shown in the copy of Girdawari for the year, 2017. The plaintiff has not placed on record any other document or revenue extract to show his continuous possession over the suit land for more than 30 years. On the basis of two entries one of the year, 2011 and another of the year 2017 in the revenue record in favour of plaintiff, prima facie, it cannot be stated that he has been in continuous possession of the suit land for the last more than 30 years. 18. The material on record further shows that possession of the plaintiff over the suit land has never been accepted by the contesting defendants. In the year, 2012, they lodged an FIR against him which culminated in a Challan against the plaintiff. 11 MA No 45/2025 The same, it appears was dismissed because of non-appearance of Tehsildar as a witness before the criminal Court but that does not mean that occupation of the plaintiff over the suit land was authorized. It is also clear from the record that after the dismissal of Challan, the contesting defendants proceeded against the plaintiff under Section 133 of the Land Revenue Act seeking his eviction from the land in question. So, it is not a case where contesting defendants have acquiesced in the possession of the plaintiff over the suit land continuously for more than 30years. The material on record prima-facie shows that the claim of the plaintiff regarding ownership by adverse possession is not tenable. The observations of the learned trial Court in this regard, therefore, cannot be termed as either perverse or illegal. 19. There is yet another aspect of the matter which is required to be considered. As per own case of the plaintiff, the construction of shops which he has raised/intends to raise on spot is near the edge of the National Highway. As per the provisions of Section 3 of the Prevention of Ribbon Development Act, no building can be erected alongside any road maintained by the public works department or any other department within such distance from the centre of the road as may be specified by a general or special order published in the official gazette. In exercise of power under this provision, Chief Engineer, PWD has issued notification bearing SRO 509 dated 26.10.1970 directing that no building shall be erected along either side of Pathankot- 12 MA No 45/2025 Jammu-Srinagar-Uri road (Outside Municipal Limits) within a distance of 100 feet from the centre of the road without sanction in writing of the Chief Engineer, PWD (Roads and Buildings). 20. It is not the case of the plaintiff that he has raised the construction of shops with the permission of Chief Engineer, PWD (R&B). Therefore, even as per provisions contained in Section 3 of the Prevention of Ribbon Development Act, it is not open to the plaintiff to raise construction of shops on the edge of Jammu- Srinagar National Highway. On this ground also, no interim injunction restraining the contesting defendants from demolishing the shops constructed by plaintiff on the edge of the National Highway could have been granted by the learned trial Court. 21. For the foregoing reasons, I do not find any ground to interfere in the impugned order passed by the learned trial Court. The appeal lacks merit and is dismissed accordingly. (SANJAY DHAR) JUDGE JAMMU 01.09.2025 Tarun/PS Whether the order is speaking? Yes Whether the order is reportable? No Mahavir Singh 2025.09.03 23:14 I attest to the accuracy and integrity of this document