The Court was hearing a Civil First Appeal filed against the judgment and decree of the Principal District Judge, Anantnag, which had restrained the defendants from interfering with the plaintiffs' possession over 102 Kanals of an apple orchard. The principal issue before the High Court was whether the injunction could stand when ownership had expressly been left open by the trial Court.

A Single Bench of Justice Shahzad Azeem held that “Title need not be decided in an injunction suit unless possession can be inferred only from title, as in the case of vacant site.” The Court consequently affirmed the possessory injunction while expressly clarifying that ownership of the orchard remained undecided.

Background:

The plaintiffs, claiming possession, pleaded that they had purchased the land from the original owners, mutations had thereafter been attested in their favour and they had been enjoying the usufruct of the orchard. They alleged that the defendants, who lived in the vicinity, were attempting to interfere with their possession and intimidate the labourers working there.

The defendants denied both the plaintiffs' title and possession. Their pleaded case was that the land belonged to other persons and that they were merely caretakers and managers of the property and its usufruct on behalf of those alleged owners. They also challenged the admissibility and authenticity of the revenue documents relied upon by the plaintiffs and contended that a suit for injunction without declaration of title was not maintainable.

The trial Court framed, among other issues, whether the plaintiffs were owners and in exclusive possession and whether the defendants were interfering with such possession. After examining the evidence, it found the plaintiffs' possession established, but expressly left the question of ownership and title open. It consequently decreed the suit for permanent prohibitory injunction.

The defendants challenged the decree before the High Court, arguing that the plaintiffs had failed to produce admissible proof of title or possession and that the injunction suit itself was not maintainable without a declaration of title. They also raised objections concerning revenue records, an earlier injunction suit, court fee and the late production of documents.

Court's Observation:

Upon considering the rival contentions Justice Azeem first narrowed the controversy, observing that the decree under challenge was “a decree of injunction simpliciter based on possession” and that the trial Court had expressly left title open. He held that the appeal did not require the Court to declare ownership but required examination of whether possession had been proved and whether the possessory injunction was legally sustainable.

On the legal position governing possessory injunctions, the Court relied upon M. Kallappa Setty v. M.V. Lakshminarayana Rao, Rame Gowda v. M. Varadappa Naidu and Anathula Sudhakar v. P. Buchi Reddy. It reiterated the distinction between a case where the dispute concerns interference with peaceful possession and one where title is under a genuine cloud and possession itself is doubtful.

The Court held that the present property was an existing apple orchard and not a vacant site. Consequently, possession could be established through physical acts of control and cultivation rather than merely through proof of title. It observed that possession could be demonstrated by showing “who plants, prunes, sprays, irrigates, harvests, employs labour and takes the boxes to the mandi.”

The applicable standard, the Court said, was the preponderance of probabilities. In assessing possession, it considered day-to-day control, horticultural operations, employment of labour, movement of produce and the khasra Girdawari. The Court also clarified that Jamabandi entries carry a rebuttable presumption concerning possession and fiscal liability but do not constitute title deeds.

Addressing the maintainability objection specifically, the Court held that the trial Court had acted within law by deciding possession while leaving title open. It emphasised that the framing of the issue in terms of “owners and exclusive possession” did not convert the resulting decree into one declaring title.

The Court categorically held,

“The decree only restrains interference with possession and does not declare the plaintiffs to be the owners. Either party remains free to institute a comprehensive title suit.”

On the question of possession, the Court found the evidence of the plaintiffs, labourers and drivers to constitute a consistent account of long-standing horticultural control involving pruning, spraying, harvesting and transportation of fruit. It noted that this evidence had not been shaken in cross-examination.

The Court also dealt with the objection that the plaintiffs had relied upon unauthenticated photostat copies of revenue records. It held that the case did not rest solely upon those copies because the Patwari had entered the witness box, produced the record position and faced cross-examination. The procedural defects in the copies affected their weight and probative value but did not erase the evidentiary value of the official witness's testimony based on the original revenue record.

“…Further, it needs to be noticed that those admissions go to the mode of proving the copies. However, they do not wipe out the probative value of the oral proof based on original record, which formed the basis of his deposition in respect of the possession of the plaintiffs over the suit land”, the court remarked.

The Court found the defendants' own evidence insufficient to displace the plaintiffs' possession. Although the defendants claimed that the revenue record stood in their favour and that they were in cultivating possession, they produced no such record. Their witnesses were also inconsistent about the area, identity of the owner and whether the defendants were owners or caretakers. The Court observed that “Possession of an orchard is proved by the fact of control and not by a title decree.”

In its final assessment, the Court described the decree as “a classic possessory prohibitory injunction”, holding that it was capable of execution as a restraint against interference without deciding ownership. The plaintiffs had proved possession on a preponderance of probabilities through consistent oral evidence and the official revenue record, whereas the defendants had failed to substantiate their competing claim, the court maintained.

On a cumulative consideration of various factors the court affirmed the judgment and decree of the Principal District Judge, Anantnag and dismissed the Civil First Appeal. The Court, however, expressly clarified that the decree protects possession only and does not establish ownership.

Case Title: Abdul Hamid Turey & Ors. vs. Hassan Sheikh & Ors.

Citation: 2026 LiveLaw (JKL) 326

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