Holding

The Court held that the defendants' possession of the two rooms is merely permissive, not a grant or adverse possession, and that no easement right over the open space exists, allowing limited permissive use but no ejectment or broad injunction.

Summary

The plaintiffs, Hindus, sued the Sikh defendants for ejectment from two rooms of the southern Dharamshalla of the Martand shrine and for a permanent injunction restraining the defendants from interfering with Hindu religious ceremonies and from holding Dewans in the open space of the shrine. The defendants claimed title to the rooms either by a grant from Maharaja Pratap Singh, by adverse possession, or by easement rights over the open space. The Supreme Court held that the Maharaja’s act did not constitute a grant of ownership, the possession was merely permissive and could not be converted into adverse possession without proof, and the defendants had not established an easement right over the open space. Consequently, the plaintiffs could not obtain ejectment, but the defendants may continue to occupy the rooms under permissive possession and may hold Dewans on three specified occasions subject to conditions; no permanent injunction was granted against the Dewans. The appeal was dismissed.

Issues considered

Whether the grant by Maharaja Pratap Singh confers ownership of the two rooms to the Sikh defendants.
Whether the defendants' possession of the two rooms is permissive and revocable.
Whether the defendants acquired title to the two rooms by adverse possession.
Whether the defendants have an easement right to hold Dewans in the open space on three occasions.
Whether ejectment of the defendants from the two rooms is warranted.
Whether a permanent injunction restraining the defendants from holding Dewans should be granted.

Legislation cited

Subjects

easementpermissive possessionadverse possessionreligious propertypermanent injunctionArticle 142Transfer of Property ActHindusSikhsMartand shrine

Judgment

A PT. SHAMBOO NATH TIKOO AND OTHERS
v.
SARDAR GIAN SINGH AND OTHERS

JUNE 30, 1995

B [K. RAMASWAMY AND N. VENKATACHALA, JJ.]

Property Law : Transfer of Property Act, 1882/Easements Act
1882-Disputed property-Lands, Dharamshallas, temples and springs
situated in Anantnag, State of Jammu & Kashmir,-Suit filed by the plaintiffs
C i.e. Hindus-(a) for ejectment of the defendants i.e. Sikhs from two rooms
(Conveited into three rooms) of the suit property and (b) for p~17nanent in-
junction to restrain the defendants from inteifeling with their possession of
disputed property and their peifonnance of religious ceremonies and pujas
on the said property--Wliether the possession of the two rooms by the defen-
D dant, was pennissive and hence revocable by the plaintiffs as successors of
Dha11na1th.-Whether the defendants had acquired a title to the two rooms,
by way of adverse possession or had acquired owneiship, because of their
possession being given by Maharaja Pratap Singh by way of a grant-Whether
or not the defendants had an easementary 1ight over the open spaces in the
disputed land to its user for religious congregations or Dewa1is.
E
Constitution of India-A1t. 142-Dispute regarding easement right for
religious congregations-Jurisdiction under A1t. 142( 1) exercised in order to
do complete justice.

The appellants who are Hindus filed before the High Court of
F Jammu and Kashmir a suit for grant of permanent injunction to restrain
the defendants (a) from interfering with their possession of certain land,
Dharamshalla, temples and springs at Tirath Martand, Anantnag, State
of Jammu and Kashmir; (b) From obstructing their performance of
religious ceremonies and (c) from putting up construction on the disputed
G lands; (d) so also for ejectment of the defendants from the two rooms of
the Southern Dharamshalla.

The suit was partially dl!Cr'll'd to the extent of restraining the defen·
dants by way of a permanent inju11ction from interfering in any way Yjith
the performance of religious ceremonies by the Hindus, and from erecpng
H any Gurudwara at the Martand Premises but was refused as regards eject·
692
S.N. TIKOO v. S.G. SINGH 693

·men! of the defendants from the said two room, which was being used by A
them to keep their sacred' Granth Sahib'.

Aggrieved, the plaintiffs as well as the defendants filed first appeals,
before the High Court of Jammu and Kashmir to the extent of.their.respec-
tive grievances.
B
By it judgment and order the High Court partly allowed the plaintill's
appeal to the extent of confining the holding of Dewans in the vacant space
by the defendants to three specified occasions namely Baisakhi, Dasmi and
Chatti Padshahi but on the other hand dismissed the appeal of the defen-
dants as a whole.
c
The decree in the suit, as affirmed in appeal before the High Court,
was thus challenged by the plaintiffs, before this Court limited to the
following issues : (a) Refusal by the Courts below, to grant the decree
against the defendants, for their ejectment from the two room of the
Dharamshalla and (b) Non grant of permanent injunction against the D
defendants, in respect of holding of Dewans in the vacant space, by recog-
nising their easementary rights thereto.

Against the plea of ejectment in respect of the said two rooms it was
contended ·by tbe defendants that (a) under a grant made to the Sikh
community by the erstwhile ruler of State of Jammu, Maharaja Pratap E
Singh, they bad become the owners thereof; (b) or in the alternative, they
had acquired a title to the said rooms by way of adverse possession; (c) and
that they had also acquired easementary rights of conducting Dewans, on
three specific religious occasion is every year, in the open space of Marland
Shrine and hence were not liable to be restrained by a permanent injunction
F
from holding the said Dewans.

All efforts to bring the present dispute to an amicable settlement
having failed, this Court on merits.

HELD : 1. The plea of grant, by Maharaja Pratap Singh having not G
been earlier put forward by the defendants in their written statement, the
·s.ame is unsustainable in law. (712-C]

2. The possession of the two rooms, given to the Sikh community at
the behest of Maharaja Pratap Singh for keeping the 'Granth Sahib' was
purely in the nature of permissive possession. Permissive possession can- H
694 SUPREME COURT REPORTS [1995] SUPP. l S.C.R.

A not be converted into an adverse possession unless it is proved that the
person in possession, asserted an adverse title to the property to the
knowledge of the true owners for period of twelve years or more.
[712-H, 713-B]
The defendants in their written statement though have stated that
B they were in possession of not only the rooms, but also in possession of the
whole shrine and its precincts for over a period of twelve years, they have
nowhere mentioned or led any evidence to prove that, they had made it
known to the Dharmath department, which was in the management of the
shrine and the Dharamshalla, that they had converted their permissive
possession of the two rooms into adverse possession. There is also no issue
c raised in the suit, as to whether or not the defendants had perfected their
title to the said rooms by adverse possession. [714-B-C]

State Bank of Travancore v. Arvindan Kzmju Panicker and Ors., AIR
(1971) SC 996, referred to.

D 3. Ordinarily the possession of the open space would go with the
possession over the material structure, buildings and springs within the
midst of which it lies. [719-A]

The whole shrine including the vacant space, as also has been
E recorded in the revenue Records, has been in possession of the Hindus from
times immemorial. The right of user of another's land by custom cannot be
sustained, unless it is proved by the party claiming such right whether the
right is ancient, peaceful, reasonable and specific and was being exercised
as of right, continuously without interference. [719-E, H, 720-A]

F Raja Braja Sunder Deb and Ors. v. Mani Behara and Ors. AIR (1951)
Sc 247, referred to.
4. In the facts and circumstances of the present case, for want of
production of sufficient evidence on the part of the defendants to prove their
G ownership rights in respect of the open space, their claim to held Dewans,
on basis of acquisition of such rights as easement, in absence of alternative
plea taken in their written statement is not sustainable in law. [721-D]

5. Although the defendants has not acquired any title to the two
rooms by either a grant made by Maharaja Pratap Singh or because of their
H perfecting title thereto by adverse possession, the interest of justice does
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 695

not warrant their ejectment from the said two rooms where they keep their A
'Gran th Sahib'. However, their right to continue in possessiou of the said
two rooms is to be regarded as permissive possessiou and any act which
may be committed by the Sikhs which results in obstruction of performance
of Puja or religious ceremonies in the disputed property would give the
plaintiffs a cause of action to eject defendants by having recourse to legal
proceedings. (723-C-D] B

6. Although the defendants have failed to establish easementary right
to hold Dewans in the open space, but having allowed the Sikhs to use to
two rooms, it cannot be in the interest of justice to restrain them from
holding Dewans in the open space of. Martand shrine, when as of necessity C
they are compelled to hold Dewans in a place close to the place where their
holy script is kept. Hence the defendants whenever decide to hold Dewans,
on any of the three occasions in the year, the same ought to be held by
requiring the people interested in attending the same to reach the said open
space, without crossing the premises of the shrine or the springs where the
Hindus would be performing their pujas. (723-G-H, 724-A-C] D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 865 of
1973.

From the Judgment and Order dated 3.5.72 of the Jammu & Kashmir
High Court in L.P .A. No. 83 of 1967. E
D.V. Sehgal, K.C. Dua, Y.P. Mahajan, G. Juneja, Ratan Lal, Ms.
Usha Yadav, Ms. Monika Gusain and Bimal Roy Jad for the Appellants.

M. S. Gujral, V.J. Francis and V. Subramanian for the Respondents.

The Judgment of the Court was delivered by
F

VENKATACHALA, J. Appellants were the plaintiffs while respon-
dents were defendants in Civil Original Suit No. 20 of 1958 filed in the
High Court of Jammu and Kashmir in respect of Marland Shrine in
Anantnag District. Decree sought for in the suit was for grant of permanent G
injunction to restrain the defendants, from interfering with plaintiffs' pos-
session of lands measuring 19 Kanals 12 Marlas in Survy Plots 1424/4,
1962/1424/4 and 2304/1143/1 measuring (19 Kanals 6 Marlas, 6 Marlas) and
9 Kanals 18 Marlas respectively and D haramshallas, temples and springs
at Tirath Marland, Village Macha Bhawan, Tehsil Anantnag; from
obstructing Hindus, of their worship of gods in the Temples or of their H
696 SUPREME COURT REPORTS (1995] SUPP.ii S.C.R.

A performance of religi~us ceremonies at the springs and putting up any
constructions on the disputed lands; and for ejectment of the defendants
from two rooms (converted into three rooms) out of six room of the
Dharamshalla on the southern side of the springs of Marland. Decree so
sought for in the suit was granted limited to the extent of restraining
defendants by permanent injunction from interfering in any way with the
B performance of religious ceremonies by Hindus at the three springs (Kamal
Kund, Bimal Kund and Gauri Kund), or their conducting of pujas in the
temples and of holding Dewans in the open space north of the springs
towards Pahalgam side on the occasions of Mal Mas, Ban Mas, Suraj
Grahan, Chand Grahan, Soma Wati Amawas (Amawas Falling on Mon-
c day), Amar Nath Jee Yatara Period and Vijay Saptami (7th day of Hindus
month failing on Sunday), and of plaintiffs' possession of the building
situated to the north of Dharamshalla towards Pahalgam Road and from
erecting any Gurudwara at the Marland premises. But, decree was refused
as regards ejectment of defendants from the two rooms (converted into
three rooms) of Dharamohalla in their possession as also of permanent
D injunction sought for in respect of four marlas of the land in Plot No.
2304/1143/1.

·The said decree in the suit was questioned by the plaintiffs in the
First Appeal No. 83/67 filed by them in the same High Court to the extent
it did not grant certain reliefs while the same was questioned by the
E defendants insofar it has granted certain reliefs against them by filing Civil
First Appeal No. 87/67. A Division Bench comprised of Mian Jalal-ud-Din
and Anant Singh, J.T. heard the said two appeals having clubbed them
together. Since the learned Judges who rendered separate judgments in
those appeals failed to reach an agreement on two of the points that arose
F for their consideration therein, they requested the Hon'ble Chief Justice,
to refer the two points on which they had not agreed, to a third Judge for
his opinion thereon by making the following order :

"As may learned brother Anant Singh J. and myself have not
agreed in our respective judgments to the points relating to ques-
G tions of adverse possession and the right of holding Dewans by the
defendants, the matter may, therefore, be placed before my Lord
Hon'hle the Chi.ef Justice for referring these points to a third Judge
to be nominated by his Lordships."

H Mufti Baha-ud-din Farooqik, J. being the third Judge to whom the
... S.N. TIKOO. v. S.G. SINGH [VENKATACHALA, J.] 697

said two points were referred for his opinion, adverts to those points in his A
judgment thus : ·
....
· Anant Singh, J. held that the possession of the defendants over
the two rooms in the southern Dharamshalla was permissive and
could be revoked by the. plaintiffs as successors of Dharmarth. As
regards holding of Dewans on the open space he held that the use B
could be based on custom but in the absence of any reliable
evidence showing that the Dewans were held every year on the
specified occasion and were so held as of right from times im- .
memorial no right could be found in favour of the defendants. On
this view he held that the finding of the learned Single Judge on c
these two items should be set aside.

, Mian Jalal-ud-Din, J., however, expressed a contrary opinion.
he held. that the defendants were in possession of the two rooms
in the southern Dharamshalla in their own right and in the alter-

- native by adverse possession. As regards the holding of Dewans
on the open space .he held that the Sikhs have been holding the
same for the last over fifty years to the knowledge of the plaintiffs
and without any -objection from them on there specified occasions
D

namely Baisakhi, Daswi and Chatti Padshahi and that this was
sufficient to disentitle the plaintiffs from claiming a relief for E
permanent injunction as would be derogatory to the holding of
Dewans by Sikhs on these occasions."

What, therefore, according to Farooqi, J. the third Judge, the points
in the appeal on which Anant Singh, J. and Mian.Jalal-ud- Din, J. had·not
agreed upon and which were referred for his opinion as that relating to F
adverse possession and as that relating to right to adverse possession and
as that relating to right of holding Dewans by defendants, were these :

1. Whether the possession of defendants of the two rooms in the
southern Dharamshalla was permissive and hence revokable by the G
plaintiffs as successors of Dharmarth, as held by Anant Singh, J.
or whether the possession of defendants of the two rooms in the
southern Dhararnshalla was that held in their own right or in the
alternative by adverse possession as held by Mian Jalal-ud-Din, J.

2. Whether the defendants had no right to hold Dewans in open H
698 SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

A space to the north the springs towards Pahalgam side on the basis
of custom, since no reliable evidence was adduced for showing that
Dewans were held every year on specific occasions and from times
immemorial, as held by Anant Singh, J. or whether the plaintiffs
were disentitled to claim permanent injunction against defendants
for holding Dewans on that open space on three specific occasions,
B Baisakhi, Daswi and Chatti Padshahi as such Dewans had been
held for over 50 years to the knowledge of the plaintiffs and without
any objection from them as held by Mian Jalal-ud-Din, J.

Opinion of Farooqi, J., the third Judge on Point-1 above, was stated
C thus:
The Maharaja Pratap Singh, a sovereign ruler, who was entitled to
deal with Dharamshalla in any manner he liked, dedicated two rooms of .
the Dharamshalla to Sikhs, Such dedication was not withdrawn by the •
Maharaja at any time. The mere fact that receipt, Ext, PW. 3/1 includes
D the entire Dharamshalla as one of the properties transferred to Prohit
Sabha by Dharmarth would not affect the legal position of dedication in ..
favour of Sikhs. The claim of the plaintiffs for two rooms based on
permissive possession was false. The plaintiffs cannot succeed in getting
possession of the rooms even if it is assumed they had title to the same, in
as much as, the suit for possession of rooms not haviri.g been filed within
E 12 years from the date of dispossession was barred by Article 142 of the
Limitation Act, 1908. Even otherwise, the defendants had proved that they
had acquired title to the property by adverse possession by the time of filing
of the suit.

Opinion of Farooqi, J., the third Judge, on Point-2, above, was stated
F thus:

The defendants had shown that the Sikhs had a right of easement
over the vacant space to its user for religious congregation on three specific
occasions, namely, Baisakhi, Daswi and Chatti Padshahi, and a such
G defendants' right to use the space for conducting Dewans should be limited
to those three occasions.

Concurring opinions of the two Judges expressed on several points
in their separate judgments rendered in the appeals and the third Judge's
opinion expressed in this judgment on the aforesaid two points referred for
H his opinion, not only led to the dismissal of the plaintiffs first appeal except
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 699

to the extent of confining the holding of Dewans in the vacant space by A
., . defendants to three specified occasions of Baisakhi, Daswi and Chatti
Padshahi, but also to the dismissal of defendants' First Appeal, as a whole ..

As against the said decree in the First appeals made by the High
Court allowing the plaintiffs' First Appeal partly and dismissing the
defendants' Firs Appeal as a whole, although the plaintiffs have filed the B
present appeal by special leave in this Court the defendants have not
chosen to file any such appeal. In other words, the decree made in the suit
as affirmed in appeals which stands unquestioned is the decree made
against the defendants restraining them by permanent injunction from
interfering in any way with the performance of religious ceremonies by C
Hindus at three springs {Kamal Kund, Bimal Kund and Gauri Kund) in an
· area of two kanals or of pujas by Hindus at the three temples to the
extreme west of the springs one of which is known as Sutaj Mandir or of
possession and enjoyment of four rooms out of six rooms of Dharamshalla 1
building in one Kanai five marlas in plot No. 1424/4 and of possession and ·
enjoyment of the bath rooms and of the building used for Pathshalla D
purposes and of possession and enjoyment of open space to the north of
springs towards Pahalgam Road which cover an area of 16Jranals and 6
marlas except when used by defendants for Dewans on those o~asions of
Baisakhi, Daswi and chatti Padshahi, all of the Shrine of Martand, Village
Macha Bhawan, Tehsil Anantnag.
E
Hence, the decree in the suit as affirmed in First Appeals before the
High Court which is under challenge before this Court in the present
appeal filed by plaintiffs is limited to the following :

(1) Refusing to direct the ejectment of defendants from two rooms F
(converted into three rooms) out of six rooms of Dharamshalla in
one Kanai five mar!as of land in Plot No. 1424/4 by holding that
the defendants have acquired ownership in respect of it either
because of their possession being given by Maharaj!'- Pratap Singh
by way of grant or because of acquisition on of title to the same
by adverse possession; and G
-
(2) Refusing to restrain defendants from holding Dewans in open
space to the north of the springs towards Pahalgam side on special
occasion of Baisakhi, Daswi and Chatti Padshahi, by recognising
their easementary right to hold such Dewans. H
700 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A Therefore, what is questioned by the plaintiffs-appellants in this
appeal is the refusal of the Courts below to grant the decree in their suit ..._
against the defendants for their cjectment from two rooms (converted into
three rooms) of the Dharamshalla and of non-grant of permanent injunc-
tion against the defendants in respect of holding of Dewans in open space
on Pahalgam side on three occasions of Baisakhi, Daswi and Chatti Pad-
B shahi, recognising their casementary right thereto.

Before, we deal with the questions raised in the present appeal on
behalf of the plaintiffs in the suit, we may state how our attempt to bring
about an amicable settlement among contesting parties, could not succeed.
c Plaintiffs expressed their willingness to forego their claim to the two
rooms (converted into three rooms) in Dharamshalla, which were in oc-
cupation of defendants, if the defendants gave an undertaking to enter the
open space from Pahalgam side to hold their Dewans on three occasions
of Baisakhi, Daswi and Chatti Padshahi directly from Pahalgam Road and
D not to seek to enter that open space through the premises of the shrine of
Martand where the springs are found. But, the plaintiffs did not agree for
the holding of Dewans in the open space by entering into the said open
spi'ce directly from Pahalgam road on the plea that the two rooms (now
-
converted into three rooms) of Dharamshalla are opened towards the
Shrine.and the springs, and therefore they must be allowed to hold Dewans
E in the open space crossing the premises of Marland Shrine. As the claim
of the defendants that the rooms in Dharamshalla were opened towards
the shrine was disputed by the plaintiffs, we appointed a Commissioner to
hold a local inspection and make a report. However, as it as reported to
us by learned counsel for parties that the atmosphere that prevailed at the
spot was not safe for the Commissioner to make a local inspection and that
F there was no possibility of parties arriving at an amicable settlement, we
had no option but to hear the appeal on merits and decide the same.

We have, therefore, heard arguments of learned counsel appearing
for the contesting parties in the appeal, carefully gone through the written
G submissions filed by them and are proceeding to decide the appeal on
merits by this judgment.

The points which need to be considered and answered for deciding
the plaintiffs appeals in the light of the said oral arguments and written
submissions of learned counsel for contesting parties could be formulated,
H for purposes of proper and effective consideration, thus :
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 701

1. Is the finding that the defendant in the suit had ac_quired title· · A
in respect of two rooms (converted into three rooms) of
Southern Dharamshalla of the Marland Shrine because of a
'· specific grant made thereto by Maharaja Pratap Singh while
he was the sovereign Ruler of Jammu State, recorded by the
learned third Judge of the High Court (Farooqi, J.) for whose
B
deciSion the two questions - one relating to adverse posses-
sion and another relating to holding of D~wans, on which two
Judges of the Division Bench deciding the appeals, had not
agreed upon, unsustainable?

2. Was the possession of two rooms (converted into three c
rooms) in Southern Dharamshalla of Marland Shrine given
in the year 1913 AD. by Maharaja Partap Singh to the Sikh
Community (since represented by the defendants) was in the
nature of merely permissive possession, as claimed by the
/
plaintiffs?
D
3. It the finding that the defendants had acquired title to two
rooms (converted into three rooms) out of six rooms of
Southern Dharamshalla of Marland Shrine by adverse pos-
session, of the learned third Judge of the High Court,
(Farooqi, J.) for whose deciSion the question relating to such E
adverse possession arising in the appeal was referred, unsus-
tainable?

4. Is finding that the defendants had acquired easementary right
to hold their Dewans in the open space of Martand Shrine
towards Pahalgam Road, on three occasions - Baisakhi, Daswi F
and Chatti Padshahi, of the learned third Judge of the High
Court (Farooqi, J.) for whose decision the question relating
to such holding of Dewans arising in the appeal was referred,
~
unsustainable ?

5. If it is found that the defendants (Sikhs) have not acquired G
title in respect of two rooms (converted into three rooms) out
of six rooms in the Southern Dharamshalla of Marland Shrine
because of either grant made by Maharaja Partap Singh or
of Adverse possession, are the defendants liable to be ejected
from the two rooms (converted into three rooms) of the H
702 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A Southern Dharamshalla, when two of the converted rooms
are used for keeping their sacred 'Granth Sahib' and one of
the converted room is used as kitchen or Langer Room for
preparing food to feed the poor or could the defendants be
allowed to continue in permissive possession subject to im-
position of reasonable restrictions '!
B
6. If it is found that the defendants (Sikhs) had not acquired
easementary right of conducting dewans on three occasions
of every year Baisakhi, Daswi and Chatti Padshahi, in the
open space of Marland and Shrine towards Pahalgam Road,
c are the defendants liable to be restrained by a permanent
injunction from holding the said Dewans in that open space
or could the defendants (sikhs) be allowed to hold such
Dewans subject to imposition of reasonable restrictions on its
user?

D The said points shall now be taken up seriatim for consideration and
answered.

Point-I:

The point relates to sustainability of the finding on acquisition of title
E by Sikh Community - the defendants in respect of two rooms (converted
into three rooms) in the So\lthern Dharamshalla of the Marland Shrine
under a grant, recorded by Farooqi, J.

The case of the plaintiffs for ejectment of the defendants from the
two rooms (converted into three rooms) of Southern Dharamshalla of
F Marland Shrine, as pleaded in paras 2, 4, 5, 10, 12 and 14 of their
suit-plaint, reads :

"2. That there is a Tirath namely Martand Tirath situate in
Village Macha Bhawan, Tehsil Anantnag, of the Hindus ex-
G isting from olden times.

3.

4. That the possession of the Hindus has duly been recorded in
the revenue record and the Settlement Record from olden
H times and it is in possession and under the ownership of the
S.N. TIKOOv. S.G.SINGH [VENKATACHALA,J.] 703

Hindus, ................ . A

5. That since the Dharamshalla Deptt. came into existence it is
,. watching, managing and taking care of Dharamshallas and
the temple.

6. B

7.

8.

9. c
10. That the Dharmarth department had permitted Sikhs to place
Granth Sahib temporarily in two rooms, when their Dharam-
/
shalla had demolished which was at a very long distance from
Marland Tirath and the permission was granted temporarily D
to place Granth Sahib there till reconstruction of the Dharam-
shalla. The Sikhs evaded constructing their own Gurudwara
and Dharmarth department pressed the defendants to vacate
the said rooms. In consequence of this a dispute arose be-
tween Sikhs and Dharmarth department and it took a grave
shape. Due to this dispute the Government intervened and E
on the intervention of the Government of J&K the Sikhs
nominated Sardar Kanya Singh, Sardar Guiab Singh, Sardar
Nirmal Singh and Dr. Jaswant Singh as their representatives
and attorneys and it was decided with the Dharmarth depart-
ment alongwith the then Hon'ble Finance Minister, that both F
the rooms would be got vacated and Granth Sahib will be
placed in the New Dharamshalla and these two rooms shall
be used temporarily for Granth Sahib, till new Dharamshalla
is constructed on the Government expenses. This compromise
deed was executed on 4th Assuj, 1992 jointly by the aforesaid G
representatives and Dharmarth department in presence of the
then Wazir Wazarat Anantnag and Hon'ble Finance Minister
by which dispute between Dharmarth department and the
defendants (Sikhs) ended. At the time the deed dated 4 Assuj
1992 was executed Sikhs had converted these two rooms into
four rooms and at present these four rooms have again been H
----------;----------;----·-~~··

704 SUPREME COURT REPORTS (1995) SUPP.1 S.C.R.

A converted into two rooms and one kitchen.

11.

12. That the plaintiffs have been old Purohits from generation to
generation of this Tirath. Prior to the existence of D harmarth
B department the management of this Trrath was with the elders
of the plaintiffs. The Dharmarth department gave up the
management to the plaintiffs by order of His Highness on 22
Sawan 2007 and handed over its management to the plaintiffs
instead of the Dharmarth department which was hitherto
before in old times. To facilitate the disposal of the case, the
c D harmarth Council has been arrayed as proforma defendant.·
The plaintiffs were demanding of the defendant to vacate
these· rooms and io take out the Gra~th Sahib from the
. existing rooms and make their arrangements but the defen-
dants continued evading. At the plaintiffs persistency the
D defendants started creating disturbance and to grab these
rooms by oppression and taking out their daggers over-awed
the plaintiffs attempting to take possession of the springs and
tried to put obstruction to the Hindus in performing their
religious rites and tried to show that the Tirath is of Guru
E Nanak Ji. They were creating the disturbances from time to
time for about two years. Gradually the disturbance
prolonged till the Government itself took the possession of
this sacred Marland Tirath, detailed a police guard, ...............•

13........••••.......••.........••.......••...........
F
14. That two rooms are in possession of the defendants on
temporary basis which 'are existing at pr;sent .in the shape of
three rooms. The plaintiffs ,are entitle.t to the possession of
these rooms and the defendants are bound to ·take out Granth
Sahib from these rooms as has been decided and agreed to
G by the representatives of the defendants in the year 1992. The
Government of Jammu and Kashmir and the Dharmartb
department which was managing body of the Marland Tirath
have consented that permission to keep Granth Sahib for
some time be given and Granth Sahib be placed ·somewhere
H else which the defendants did not do. Therefore, the plaintiffs
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 705

are desirous to get them ejected from these rooms and are A
entitled to possession. ....................... "

In the two written statements filed by the defendants, the whole
defence set up by them in respect of two rooms (converted into three
rooms)of the Southern Dharamshalla of Marland Shrine, from which
defendants' ejectment was sought) is contained in para 10 of the ~Tittcn B
statement of defendants-3, 7 and 8, and paras 5 and 10 of the written
statement of all the defendants including defendants-3, 7 and 8. Para 10 of
written statement of defendants-3, 7 and 8 reads :

PARA 10 OF WRITTEN STATEMENT OF DEFENDANTS-3, C
7 AND 8.

"10. Para No. 10 is contrary to the fact and incorrect. Hence its
entire contents are denied. The Sikh Community has been the
owner and in possession of the suit land for more than 12 years as
is known to "Hindu Community" and they have many historical D
documents, compromise deeds, and other witnesses and proof in
their favour, which have proved that the owners, occupants and
the usufructory of the disputed property are Sikhs."

PARA 5 AND 10 OF THE WRITTEN STATEMENT OF ALL
THE DEFENDANTS. E

"5. Para 5 of the plaint is denied. The property in dispute was never
managed or supervised by the Dharmarth department at any time."

"10. That Para No. 10 is incorrect and hence is denied. The
Dharmarth had no connection with the rooms in possession of the F
Sikhs and used as Gurudawara, nor did they give rooms to the
Sikhs for any purpose. The historic Gurudawara of the Sikhs is at
spring No. 2 known as Macha Bhawan. In fact, on the three sides
of the spring No. 2 there were 7 Gurudawaras wherein seven Bira
(Volumes) of Guru Granth Sahib were installed, one in each G
Gurudawara. Besides, there were 45 rooms for the use of the
pilgrims to the historic Sikh Gurudawara Mattan Sabib. Those
buildings were demolished under the orders of Maharaja Partap
Singh on account of their being too old and with a view to erect
new building in these place. But due to the first great war the new
proposed construction by the Government could not be under- H
706 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A taken and only the present line of 7 rooms been used as the
building of the Gurudawara. Four rooms are actually used for the
worship of the Guru Granth Sahib therein and the remaining three
rooms are used for the use of pilgrims. There was no dispute
between the Sikh and the Government in 1942 or there about
regarding the Gurudawara as alleged in this para of the plaint nor
B Sardar Kanahaya Singh and others mentioned in this para were
ever appointed as representatives of the Sikh Community and the
Sikh Community is not bound by any undertaking of theirs even if
there is any."

C However, even the additional plea taken by way of defence in the
written statement filed by all the defendants against their ejectment from
the said two rooms, in para 17(i) thereof, was merely, the following :

"(i) That the Gurudawara Mattan Sahib is a historic sikh Shrine
founded in memory of the first Sikh lord Guru Nanak Dev
D Jee. According to the historians he visited this spot before
1657 and since then this sacred shrine remained connected
with the Sikhs and the Sikh history. After the conquest of
Kashmir the Gurudawara was built by the orders of Maharaja
Ranjit Singh and a Muafi and a jagir was given which con-
E tinues till today."

The defence put-forth by the defendants as seen from their written
statements, against the plea of ejectment putforth against them by the
plaintiffs in their suit, does not show that they were not liable to ejectment
from the two rooms (converted into three rooms) in the Southern Dharam-
F shalla of the Marland Shrine, for the reason that those rooms were given
away to the Sikh Community by Maharaja Partap Singh by way of grant,
while he was the sovereign Ruler of the Jammu State. Even if the averments
contained in the aforesaid paragraphs of the written statement of the
defendants are read as a whole, it is impossible either to infer or imagine
G that the defendants wanted to resist the suit of the plaintiffs filed against
them for ejectment from the two rooms (converted into three rooms) in
the Southern Dharamshalla, as granted of the said rooms under a grant
made by Maharaja Partap Singh in favour of the Sikh Community for
placing 'Granth Sahib' in those rooms and as such they had become owners
by grant of two rooms made by the then sovereign Ruler of Jammu State,
H Maharaja Partap Singb.
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.j 707

No doubt, the finding recorded by the learned third Judge (Farooqi, A
J.) that tow rooms of Dharamshalla had been granted by Maharaja Partap
Singilin favour of the Sikh Community-defendants, accords with the find-
ing of another learned Judge (Jalal-ud-Din, J.) But, that finding in our view,
becomes wholly unsustainable being altogether a new case made out for
the defendants by him, in that, such case is not in any way traceable to the
B
pleas of defence of the defendants set out in their wrillen statement against
their ejectment from the said two rooms.

Moreover, the learned third Judge (Farooqi, J.) could not have
recorded the fin!ling that the two rooms (Converted into three rooms) in
Southern Dhar~~shalla of Marland Shrine were given, by way of grant by C
Maharaja Partap Singh to the Sikh Community- defendants when the
defence pleaded by the defendants in their written statements that
Dharamshalla consisting of seven rooms was erected by Maharaja Partap
Singh in lieu of seven gurudawara which were said to have been existing
before, had been negatived by the second learned Judge (Jalal-ud-Din, J.) D
agreeing with the. other learned judge of the Division Bench (Anant Singh,
J.) by holding thus :

"After an appraisal of the evidence of the record I am not prepared
to accept the contention of the defendants that the Dharamshalla
consisting of seven rooms was erected by the Maharaja Partap E
Singh in lieu of seven Gurudawara that are said to have existed
before. There is no evidence on the record to this effect. However,
this is evidence on the record to show that a Dharamshalla existed
on the southern side which was in a dilapidated condition which
was demolished and a new Dharamshalla was constructed. It is f
difficult to believe the story put up by the defendants in the case
that their Gurudawaras existed within the Mattan
Shrine .................. 11

Beside, when Farooqi, J. was, according to the reference order,
required to decide on two specific questions one relating to acquisition of G
title to two rooms (converted into three rooms) in Southern Dharamshalla
by adverse possession and another relating to holding of Dewans by the
defendants in the open space towards Pahalgam road, because of the
differing opinions of two learned judges of the Division Bench deciding the
appeal, the finding recorded by him that the defendants had acquired title H
708 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A two room (converted into three rooms) in Southern Dharamshalla by
reason of grant made by Maharaja Partap Singh in their favour, calls to be
disregarded as that made by him beyond the terms of reference requiring
his opinion.

Hence, the finding of the learned Judge (Farooqi, J.) that the defen-
B dants acquired title of the two rooms (converted into three rooms) in the
Southern Dharamshalla by reason of a grant made in their favour (Sikh
Community) by Maharaja Partap Singh, .becomes wholly unsustainable in
law. We answer point-1, accordingly.

C Point- 2 :

When the possession of two room (converted into three rooms) of
Southern Dharamshalla was given in the year 1913 to Sikh Community -
the defendants at the behest of Maharaja Partap Singh for keeping the
'Granth Sahib'; was such possession in the nature of permissive possession,
D is the point requiring our consideration here. The plaintiffs' case in respect
of the two rooms (converted into three rooms), from which ejectment of
the defendants as sought, in their suit, is that specifically set out in their
plaint to which we have already referred to while dealing with Point-1 and
particularised in their evidence at the trial of the suit. That case of the
E plaintiffs put in a nut- shell, is the following :

That there was an old Gurudawara of Sikhs situated at a place which
was far away from the precincts of Marland Shrine. When that old
Gurudawara of Sikh fell down, the Sikh did not like their 'Granth Sahib'
which had been kept there, to be shifted and kept in a private building.
F Consequently, in the year 1913, they approached Maharaja Partap Singh
with a request to get two rooms of the Southern Dharamshalla of Marland
Shrine, which had after its re-construction at Government expense, con-
tinued to be in the management of Dharmarth Department, for Keeping
their 'Granth Sahib' till their (Sikhs) Dharamshalla was re-build. Maharaja
G Partap Singh, who found the said request of Sikhs to be just and genuine,
conceded to the same and directed the Dhararnshalla Department to allow
Sikhs to keep their 'Granth Sahib', in two room of the Southern Dharam-
shalla of Marland Shrine until their (Sikhs) own Dharamshalla was re-built
either by themselves or at the expense of the State. Accordingly, possession
of two rooms in Southern Dharamshalla was given by Dharmarth Depart-
H ment to Sikhs for keeping their sacred 'Granth Sahib'. Dharmarth Depart-
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 709

ment at the time of giving possession of two rooms (converted into three A
rooms) of Southern Dharamshalla to Sikhs for keeping their 'Granth Sahib.'
was managing the affairs of Marland Shrine including its Southern
Dharamshalla on behalf of Hindus to whom the shrine and Dharamshalla
belonged since Dharmarth Department itself had been created by Govern-
ment to take over management of Hindu temples and Dharamshalla and
manage the same for the benefit of Hindus; Since Southern Dharamshalla B
of Martand Shrine was reconstructed in the place of dilapidated Dharam-
shalla, belonging to Hindus it did not cease to belong to Hindus even if
such reconstruction was funded by Government. Indeed, neither the
Maharaja nor "his Government either acquired or intended to acquired
Marland Shrine's or it Dharamshalla's owoership rights. Thus, when the C
Maharaja or his Govermnent had not acquired any owoership rights of the
Marland Shrine or its properties including Southern re-constructed
Dharamshalla neither the Maharaja nor his Dharmarth department could
give away to the Sikhs any rooms in the Dharamshalla by way of grant as
would transfer the owoership rights in them. The possession of the two
rooms (converted into three rooms) in the Southern Dharamshalla given D
by Dharmarth Department of the Government at the behest of the
Maharaja to Sikhs for keeping their 'Granth Sahib' was on behalf of
Hindus, the owoers of the Martand Shrine and its Dhararnshallas and the
same could not be anything but permissive in nature.

The Trial Judge discarded the said case of the plaintiffs as to E
permissive possession of the defendants put-forth in respect of two rooms
(converted into three rooms) in Southern Dharamshalla of Martand Shrine
by recording his finding in that behalf thus :

'1 might also. mention that if the plaintiffs fail to establish the F
existence of the old Sikh Gurudawara, then the very basis of their
case of permissive possession of the defendants over the present
Dharamshalla disappears. Furthermore if it is found that there was
no such sikh Gurudawara at Sangam then the conclusion is ines-
capable that the various grants, and Maufies which have been
proved by the defendants would referable to Gurudawara at Mat- G
tan and at Mattan alone because it is not the case of the plaintiffs
that the grants could be referable to some other Gurudawaras at
at a different plaee."

Since the sustainability of the said finding of the Trial Judge had been H
710 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A impugned in appeal filed by the plaintiffs before a Division Bench of the
High Court, Anant Singh, J. who was a member of that Division Bench
reversed that finding on consideration of the evidence in the suit, thus :

"The Southern Dharamshalla was eventually reconstructed in
about 1913 as is the admitted case of the parties. It will appear
B from the above document (Ex.P.W. 38/1) that the reconstructed
Dharamshalla was constructed on the old Dharamshalla which, in
its turn, had been constructed by the Dharmarth department of
the State of the Maharaja. The Dharmarth was as it has been seen
more than once, only for the Hindus alone. Now there will be a
c presumption that when the Dharamshalla was reconstructed by the
Dharmarth aided by the State, it was reconstructed for the Hindus
alone. The Dharmarth was not the personal property of the
Maharaja. This the Maharaja obviously did not construct this
Dharamshalla as his personal property, but it continued to be the
property of the Hindus under the control, and Management of the
'
D Dharamshalla.'

"The defendants have not disclosed in any of their written
statements nor in the evidence of any of their witnesses that they
came to occupy the two rooms by force, or ever asserted their
E hostile possession before any dispute between the Hindus and the
Sikhs arose in about four to five years before the snit. In these
circumstances it is difficult to disbelieve the plaintiffs case that the
defendants were given permissive possession over the two rooms,
since converted into three by the Dharmarth department nnder
F the order of the Maharaja who was its head for all practical
purposes. It will not however be correct to say as the learned Trial
Judge has observed on page 43 of his Judgment that the present
Dharamshalla was constructed by the Govt. under the orders of
Maharaja Partap Singh who was the owner of the building'. There
is no evidence to warrant such a conclusion that Maharaja Partap
G Singh was the owner of this building in this personal capacity or
as the Sovereign of the State. The Dharmarth department
reconstructed this Dharamshalla on the old Dharamshalla of
course under the orders of the Maharaja and certain officers of
his government and may be even with Government fund. The
H Dharmarth department was a wing of the Maharaja Government
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 711

and the Dharmarth department existed for Hindus alone. The A
building was not the personal property of the Maharaja as owner
but it was reconstructed by the Dharmarth for the benefit of the
Hindus to whom the whole Shrine has belonged from time im-
memorial. The Maharaja and his Government has only helped in
its maintenance and reconstruction as an act of generosity. The B
Maharaja never acquired it for the State. He could not, therefore,
give any portion of it to the Sikhs on behalf of his State. Evidently,
in ordering the giving of the two rooms of this Dharamshalla to
the Sikhs he seems to have acted only as the over all incharge of
the Dharmarth by virtue of his position as the Maharaj a who was
the sovereign of the State. The only correct conclusion is that it was C
the Dharmarth who gave only permissive possession of the two rooms
to Sikhs as a manager of the Shrine holding it on behalf of the
Hindus."

(Emphasis supplied by us) D
Then dealing· with the reconstructed D haramshalla, J alal-ud-Din, J .,
another member, of the Division Bench deciding the appeal, did not in his
separate Judgment, disagree wilh the the Judgment of Anant Singh, J. That
the Dharamshalla of Marland Shrine was constructed in the place of its
dilapidated old Dharamshalla by stating thus : E
"After an appraisal of the evidence of the record I am noi prepared
to accept the contention of the defendants that the Dharamshalla
consisting of seven rooms was erected by the Maharaja Partap
Singh in lieu of seven Gurudawaras that are said to have existed
before. There is no evidence on the record to this effect. However, F
there is evidence on the record to show that a Dharamshalla
existed on the southern side which was in a dilapidated condition
which was demolished and a new Dharamshalla. was consiructed.
It is difficult to believe the story put up by the defendants in the case
that their Gurudawaras existed within the Mattan Shrine.' G
(Emphasis supplied by us)

But, according to him, the possessi~n of the two rooms (converted
into three rooms) in the Southern Dharamshalla given by the Dharmarth
Department at the behest of Maharaja Partap Singh, had to be regarded H
712 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A as ordering the giving of Government property by Maharaja Partap Singh
as a sovereign Ruler of Jammu State, although it was not the personal
property of the Maharaja.

As pointed out by us while dealing with Point-1, it was not open to
make out a case of grant by Maharaja Partap Singh of the two rooms
B (converted into three rooms) in the Southern Dharamshalla in favour of
Sikh community - the defendants, when there was absolutely no plea put
forward in the defence of the defendants in their written statements of such
grant by Maharaja Partap Singh. The finding of the learned Judge in the
said regard, therefore, becomes wholly unsustainable. For the same reason,
C the finding of the third Judge, Farooqi, J. that Maharaja Partap Singh must
be regarded as having made a grant of the two rooms (converted into three
rooms) in the Southern Dharamshalla in favour of Sikh community - the
defendants, cannot also be sustained, as is held by us while dealing with
Point-1.

D When the findings of the learned trial Judge and the learned appel-
late Judges as regards nature of the possession of the two rooms (converted
into three rooms) in the Southern Dharamshalla of Marland Shrine given
by Dharmarth Department of Government to the Sikh community in the
year 1913 at the behest of Maharaja Partap Singh for keeping their Granth
E Sahib, are examined by us with reference to the evidence on which ea~h of
such findings are based, we are of the considered view that the finding of
Anant Singh, J. deserves to be upheld as that based on a correct apprecia-
tion of evidence in the suit rendered taking into consideration all the facts
and circumstances attending the act of giving possession of the said two
rooms by Dharmarth Department to Sikh Community now represented by
F the defendants. We accordingly uphold the finding of Anant Singh, J. that
the possession of two rooms (converted into three rooms) in Southern
Dharamshalla of Marland Shrine given by Dharmarth Department to Sikh
community in the year 1913 was merely permissive possession and reject
the findings of other learned trial and appellate Judges, to the contrary
since the latter are based either on no relevant evidence or on surmises
G and conjectures.

We, therefore, conclude that the possession of two rooms (converted
into three rooms) in Southern Dharamshalla of Martand shrine given in
the year 1913 to Sikhs - the defendants to keep their Granth Sahib was
H clearly and obviously nothing but permissive possession, and answer Point-
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 713

2 accordingly. A

• Point-3 :

The proposition of law that permissive possession cannot be con-
verted into an adverse possession unless it is proved that the person in
possession asserted an adverse title to the property to the knowledge of B
the true owners for a period of 12 years or more, cannot be disputed, when
it is so held by the three-Judge Bench of this Court in State Bank of
Travancore v. Arvi11da11 Kunju Panicker and Others, AIR (1971) SC 996
(998). Therefore, unless Sikhs - the defendants in the suit who were put in
permissive possession of the two rooms (converted into three rooms) of C
the Southern Dharamshalla of Marland shrine in the year 1913, could
succeed in establishing that the character of their permissive possession of
the said rooms was turned into the character of adverse possession to the
knowledge of the true owners for a period of 12 years or more, before the
institution of the suit by the plaintiffs, they cannot claim to have acquired
title to the said rooms by adverse possession. When the plaintiffs pleaded D
in their plaint that Sikhs - the defendants, who were in permissive posses-
sion of the two rooms (converted into three rooms) of the Southern
Dharamshalla of Marland shrine were required to be ejected therefrom,
the suit was resisted by the defendants by filing two written statements. The
plea of adverse possession taken by defendants-3, 7 and 8 in para 12 of E
Preliminary Objections therein reads, thus :

'That the property in dispute has been in the possession of the
Sikhs as owners in the capacity of representatives and in their
personal capacity for a period of more than 12 years by way of
adverse possession and they are the owners of the property in F
possession.11
.. Again in para 10 of the parawise written statement, it is stated, thus:

"10. Para No. 10 is contrary to the facts and incorrect. Hence
its entire contents arc denied. The Sikh Community has been the G
owner and in possession of the suit land for more than 12 years as
is known to 'Hindu Community' and they have many historical
documents, compromise deeds, and other witnesses and proofs in
their favour, which have proved that the owners, occupants and
the usufructory of the disputed property are Sikhs." H
714 SUPREME COURT REPORTS !1995] SUPP. l S.C.R.

A In the latter written statement filed by all the defendants what has
been stated is that the Dharmarth Department had no connection with the
rooms in possession of Sikhs used as Gurudawara nor did Dharmarth
Department give rooms to Sikhs for" any purpose. Thus, Sikhs - the defen- •
dants in their written statements though have stated that they were in
possession of not only the rooms in Southern Dharamshalla, but also in
B possession of the whole shrine and its precincts for over a period of 12
years by way of adverse possession, they have nowhere in their written
statements mentioned that they had made known to the Dharmarth
Department which was in management of the shrine and Dharamshalla on
behalf of Hindus, that they had converted their permissive possession of
c two rooms of Southern Dharamshalla of Marland shrine into adverse
possession. There is also no issue raised in the suit to the effect as to
whether the defendants had perfected their title to the two rooms (con-
verted into three rooms) of the Southern Dharamshalla of Marland shrine,
by adverse possession.
D
Admittedly, no evidence, documentary or oral, is produced by the
Sikhs-defendants to establish the fact that they had converted their permis-
sive possession of the two rooms (converted into three rooms) of Southern
Dharamshalla of Martand shrine into adverse possession and they had
perfected their title by such adverse possession. Although there are large
E number of witnesses examined for the defendants in the suit, admittedly
none of them have even uttered a word about the perfecting of title to the
said two rooms by defendants, by adverse possession.

According to the trial Judge, since the plaintiffs had failed to prove
F that the possession of the two rooms (converted into three rooms) of
Southern Dharamshalla of Marland shrine given to Sikhs- the defendants
and some of the plaintiffs witnesses had stated in their evidence that the
defendants took forcible possession of the said rooms in the Dharamshalla .•
in 1935 and some other witnesses of plaintiffs had referred to forcible
possession of the rooms held by the defendants on certain occasions, and
G the Dharmarth Department itself had stated in its plaint of the suit filed
in 1944 A.O. Ex.27/B, that the defendants started asserting adverse title to
the two rooms in their possession, 15 days before the date when the plaint
was filed namely 25.7.2002 (1944 A.O.), it had to be held that the defen-
dants had perfected their title to the said two rooms by adverse possession.
H The sustainability of the said finding relating to adverse possession was
S.N. TIKOO v. S.G. SINGH [VENKATACHAl,A, J.] 715

impugned in the appeal by the plaintiffs. .Talal-ud-Din, and Farooqi, JJ. for A
the very reasons stated by the trial Judge, recorded a finding that the
defendants had perfected their title to the two rooms (converted into three
rooms) in Southern Dharamshalla by adverse possession. One of the
learned Judges Anant Singh, J. who dealt with the appeals, reversed the
finding of the trial Judge that the defendants had perfected their title by
B
adverse possession in respect of two rooms (converted into three rooms)
in the Southern Dharamshalla, for the reasons which we shall advert to
presently.

According to him (Anant Singh, J.) the learned trial Judge was not
right in proceeding to decide the question of adverse possession on the C
basis that the plaintiffs had not proved that the defendants were put in
permissive possession of the two rooms (converted into three rooms) of
Southern Dharamshalla, in that, Maharaja Partap Singh could not have
given away the rooms in Dharamshalla in favour of Sikhs, for neither the
State nor he had acquired any title in it. On the other hand, he pointed D
. out that when the D harmarth Department took over the Martand shrine
and Dharamshalla, it was taken over merely for purposes of proper
management of the same on behalf of Hindus to whom they belonged, and
not by way of acquisition. Hence, according to him, when Dharmarth
Department, at the behest of the Maharaja, gave two rooms to Sikhs-the
defendants, as managers of the Marland shrine and its Dharamshallas on E
behalf of Hindus to whom they belonged, the possession of two rooms so.
given can have only the characteristic of permissive possession. In fact, we
have specifically considered this matter earlier while dealing with Point-2
and have come to the conclusion that the possession· of two rooms (con-
verted into three rooms) of South.em Dharamshalla given to Sikhs-the E
defendants for keeping their Granth Sahib, by Dharmarth Department at
the instance of Maharaja Partap Singh, was merely permissive possession.

It is pointed out by Anant Singh, J. that the defendants' possession
since started with the permissive possession from 1913, it should be G
presumed to have continued as such until the defendants, any time there-
after, succeeded in asserting theii hostile possession for the requisite
period of 12 years. Indeed, this reasoning so given, calls to be upheld, as
the same accords with the decision of this Court in State Bank of Travan-
core case (supra). Forcible possession said to have been taken in the year
19i¥ according to some witnesses of the plaintiffs which were relied upon H
716 SUPREME COURT REPORTS [1995] SUPP. l S.C.R.

A by the trial court as an admission· on the part of the plaintiffs of assertion
of hostile possession in respect of two rooms by defendants is shown to be
not correct having regarded to the year 1935 referred to by them as the
date of taking forcible possession, when the actual possession of the two
rooms was given in the year 1913 to the defendants at their request. He
B has also referred to the so- called admissions made by witnesses for the
plaintiffs that the defendants being in forcible possession of the said two
rooms during certain periods. According to him, that evidence could not
have been of any value in deciding upon the question of adverse possession
of the two rooms claimed by the defendants, in that, such statements which
are not founded on pleadings could not have been of any avail to the
c defendants to assert their case of adverse possession of the two rooms. The
main document on which reliance was placed by the trial Judge was the
plaint in suit filed in 1944 A.D. Ex.P.W. 27/B dated 25 Karlik 2002 by the
Dharmarth Department which, subsequently handed back the possession
of the entire shrine including Dharamshalla to the plaintiffs in the year
D 1948, at the instance of Maharaja Hari Singh, as per Ex.P.W./3/2. Accord-
ing to the learned trial Judge, that plaint contained a statement made by
Dharmarth Department which amounted to admission of adverse posses-
sion claimed by the defendants. With a view to show what could be the
nature of the statement made by the Dharmarth Department in the plaint,
E it is pointed out by Anant Singh, .I. that the suit-plaint had been rejected
by the trial Judge on a preliminary objection and Dharmarth Council went
up in appeal against the rejection of the plaint and that appeal was
disposed of by the appellate Judge on a joint application Ex.P.W. 27/B filed
before him by both the parties. That application, it is stated, showed that
Dharmarth Council-the plaintiff in that suit had withdrawn the suit and the
F defendants had no objection for such withdrawal. The learned Judge has
found that what was contained in the plaint of a withdrawn suit, could not
have formed the basis for the trial Judge to hold that the Dharmarth
Council had admitted that the defendants had asserted their adverse title
to the two rooms in their possession 15 days earlier to the filing of the suit.
G That apart, the learned Judge has pointed out that the plaint relied npon
by the trial Judge did not refer to any statement to the effect that the
defendants had committed any overact for asserting their hostile title to
the rooms and it merely adverted to what was in contemplation in the
minds of the defendants as regards proposed construction of a
H Gurudawara at the site of the rooms. If that be so, it is difficult to think
S.N. TIKOOv. S.G. SINGH [VENKATACHALA, J.] 717

that the trial judge was right in his view that the statement of Dharmarth A
Department contained in the plaint as to the activities of the defendants in
relation to two rooms did in any way support the claim of the defendants
that they had perfected their title to two rooms by adverse possession, as
rightly reasoned by Anant. Singh, J.

In conclusion, the learned Judge has stated on the question of B
adverse possession pleaded by the defendants in respect of the two rooms
of Southern Dharamshalla in their possession, thus:

"Now to sum up my findings on this item I may recapitulate that
the Southern Dharamshalla was from the very beginning the C
property of the Hindus. It was built on the old Dharamshalla of
the Hindus. If the Maharaja Partap Singh had this Dharamshalla
reconstructed by his Government he had done it with the funds of
the Dharmarth department which was a separate wing of his
Government. The Dharmarth department was meant for the Hin-
dus. It had only the control and Management of the shrine. If the D
Dharamshalla had been the property of the Maharaja Govt. he
gave it back along with the whole shrine in 1948 to the Hindus ........."

The said reas.ons given by the learned Judge (Anant Singh, J.) who
reversed the finding relating to the adverse possession given by the learned E
trial Judge in respect of two rooms (converted into three rooms) of
Southern Dharamshalla of Marland shrine, in our view, are well founded
and sound and require to be upheld. Since the finding of Farooqi, J. which
accords with the finding of Jalal-ud-Din, J. on the question of title by
adverse possession in respect of the two rooms (converted into· three
rooms) of the Southern Dharamshalla, has since been founded on the very F
reasons .given by the trial judge in support of his finding on adverse
possession of the defendants relating to two rooms of the Dharamshalla,
the same becomes unsustainable for the reasons on which Anant Singh, J.
has reversed the fmding relating to adverse possession of two rooms
(converted into three rooms) given by the trial judge, which we have found G
to be correct in every respect and upheld.

Thus, the finding of F arooqi, J. ·that the defendants had acquir~d title
to two rooms (converted into three rooms) of Southern Dharamshalla of
Marland shrine, by adverse possession, becomes wholly unsustaillable, and
we answer Point-3, accordingly. H
718 SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

A Point-4:

We are here concerned with the sustainability of the finding of
Farooqi J. which accords with the finding of Jalal-ud-Din, J. that the
defendants had acquired easement rights to hold their Dewans in the open
space of Marland shrine towards Pahalgam Road on three occasions,
B namely, Baisakhi, Daswi and Chatti Padshahi. The open space concerned
is to the north of the springs towards Pahalgam Road covering an area of
19 Kanals and 6 Marlas. The plaintiffs in their suit sought to obtain a
permanent injunction against Sikhs - the defendants from holding their
Dewans or congregation on the plea that the open space was part and
C parcel of the Marland shrine belonging to Hindus and that space was in
possession of Hindus from times immemorial and was being used for
performing their various religious ceremonies. The claim of Hindus made
in the suit for restraining by permanent injunction the defendants from
using the open space was resisted by the defendants on the plea put forth
by the defendants in Para 9 of their written statement filed in the suit,
D which read thus:
"9 .....The land covered by Khasra No. 1424/4 measuring 19 Kanals ....
and 6 Marlas is in the exclusive possession of the Sikhs since the
times immemorial as a part and parcel of Gurudawara Shri Mattan
Sahib where they hold congregations, meetings, and Diwans of the
E Sikh Community...."

Unfortunately for the defendants the claim made in their written
statement that the land covered by Khasra No. 1424/4 measuring 19 Kanals
6 Marlas is in the exclusive possession of Sikhs as part of Gurudawara Shri
Mattan Sahib has been disbelieved not only by the trial Judge, but also by
F the Judges of the High Court who dealt with the appeals arising from the
Judgment of the trial Judge. Indeed the categorical finding of all the
learned Judges given in their judgments is that the defendants' case that
they were in possession of the Marland shrine and the lands covered by
Survey No. 1424/4 since the time immemorial as a part of Gurudawara Shri
G Mattan Sahib is held to be utterly false. Arrant Singh, J., who was a member
of the Division Bench which heard the appea~ has stated with reference
to the said open space, as follows:

"This open space is situate in the midst of all the structures,
buildings and the springs located in the shrine. They are all a
H continuous whole surrounded by compound walls and buildings,
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 719

on three sides and a high up land on the East. In ordinary course A
possession over the open space would go with the possession over
the material structure buildings and the springs within the midst
of which it lies. This big chunck of the open space lies north of
the Dharamshalla building on the West, a room on the north
temples on the east, and three springs on its south. The approach B
to the temples lies across this open space. The Dharamshalla and
other buildings on the north west is approachable only across this
open space. It has been seen that all the other items situate within
the premises of the shrine, have been in possession of the Hindus.
One of the temples has been found to be an ancient one. The
springs have also been found to have been ancient ones. They have C
been found to have been in possession of the Hindus from time
immemorial. It has been found that the Hindus have been per-
forming various ceremonies like Mundan, Saradh etc. on different
occasions all round the year at the springs. This open space is the
only place where the Hindus used to congregate for performing D
their ceremonies .....

The whole shrine including the vacant space as it has been seen
earlier, has been recorded in the revenue records in possession of
the Hindus, this space having been described as a 'Banjar
Quadeem'. The defendants have conceded even with respect to E
this open space the possession of the plaintiffs since long but they
have claimed over it now only a joint possession along with the
Hindus having given up their original case of exclusive possession.
The manner of their joint possession was advanced at the time of
arguments before the Trial Court, as holding of Dewans, on three
specified occasions during every year by them since long."
F

Then, on a thorough consideration of the evidence of the plaintiffs
and the defendants in relation to the above space, the same learned Judge
concludes thus:
G
"This land has been a part and parcel of the plaintiffs shrine
from time immemorial. They are undoubtedly the owners of the
whole property including the open space in question."

Thereafter, dealing with the defendants claim to hold Dewans on
three specific occasions of user by customs, the learned Judge has stated H
720 SUPREME COURT REPORTS [1995] SUPP. l S.C.R.

A that right of user of another's land by custom cannot be sustained unless
it is proved by party claiming such right whether the right is ancient,
peaceful, reasonable and specific and such right was being exerci..,ed as of
right and continuously without interference placing reliance on this Court's
decision in Raja Braja Sundar Deb and Another v. Mani Behara and Others,
AIR (1951) SC 247. He was of the view that the said claim to hold Dewans
B was unsustainable for want of production of sufficient evidence on the part
of the defendants and the defendants who had indeed, claimed ownership
rights in respect of the open space should not be allowed to turn round
and claim the right to hold Dewans on the lands on the basis of acquisition
of such rights as easement or long user in the absence of alternative plea
c taken in that regard in their written statement. Thus, he negatives the claim
of the defendants to hold Dewans in the open space as a matter of right.
J alal-ud-Din, J., another member of the Division Bench, since took the view
that the defendants were entitled to use the open space, having established
their easementary right in that regard, the question of the defendants
D acquiring right to use the space for their Dewans by acquisition of right by
easement in that regard came to be referred, for decision thereon by the
third Judge. The third Judge, Farooqi, J. though came to the conclusion
that the entry in Record of Rights and Jamabandi when was to the effect
•
"as Kabzaahl Hindns", it meant that the possession of the open space was
of the followers of Hinduism, he took the view that the property being
E treated as 'Banjar Onadeem' in the Records of Rights and Jamabandi it
implied that the property was not put to cultivation, and hence such entries
cannot be treated as conclusive proof of the land dedicated exclusively to
the Sanatini Hindus or to Marland shrine of Hindus. We find that the view
so taken by Farooqi, J. in the matter on the basis of entry 'Banjar Quadeem'
F was not justifiable when he himself has referred to the Record of Rights
and Jamabandi entries which show that the above space along with other
lands of the Shrine were showed to be in exclusive possession of Hindus.
Therefore, the contrary view of Arrant Singh, .I. in the matter of acquisition
of right by easement on the open space by defendants, according to us,
prevail over the view of Farooqi, J. expressed thereon. The learned Judge
G Farooqi, J. was again, in our view, wrong when he reached the conclusion
that the defendants had taken a plea of acquisition of right to conduct
Dewans as an easementary right by referring to Para 9 of the written
statement, which read thus:

H "The land covered by Khasra No. 1424/4 measuring 19 Kanals
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 721

6 Marlas is in the exclusive possession of the Sikhs since the times A
immemorial as a part of Gurudawara Shri Mattan Sahib where
they held congregations, meetings and Dewans of the Sikh Com-
munity.1'

The plea taken in Para 9 of the written statement above as becomes
obvious from its pbin reading is that Sikhs had acquired right to land B
'
covered by Khasra No. 1424/4 as the same being in their possession from
time immemorial as a part of Gurudawara Shri Mattan Sahib and not that
they had acquired the right of easement to hold Dewans or congregation
in that land which belonged to Hindus.
c
Therefore, the view of the learned Judge that the plea of the defen-
dants contained in Para 9 of the written statement could be regarded as a
plea of right of easement becomes wholly unsustainable. If that be so, the
finding of Farooqi, J., the learned third Judge deciding the appeals, that
Sikhs had established their right of easement over the open space in the
matter of holding religious ceremonies or Dewans on three specific oc- D
casions, namely, Baisakhi, Daswi and Chatti Padshahi, becomes wholly
unsustainable. We answer Point-4, accordingly.

Point-5:

The point here is whether Sikhs are liable to be ejected from the two
E
rooms (converted into three rooms) in the Southern Dharamshalla of
Martand shrine where they are keeping their Granth Sahib because of the
finding of Farooqi, J. that Sikhs - the defendants had acquired title to the
two rooms (converted into three rooms) by either grant made by Maharaja
Partap Singh of the same in their favour or because of their perfecting title F
thereto by adverse possession, is found to be unsustainable.

Interest of justice, in our view, does not warrant ordering of eject-
ment of Sikhs - the defendants from the two rooms (converted into three
rooms) of Southern Dharamshalla of Marland shrine where they are
keeping their Granth Sahib, in the over all facts and circumstances of the G
case and in particular having regard to the case' put forward by the
plaintiffs in respect of giving of permissive possession of the said two rooms
(converted into three rooms) to Sikhs - the defendants, which is accepted
by us to be true. What is said in Para 10 of the plaint is that the Dharmarth
Department had permitted Sikhs to place Granth Sahib temporarily in the H
722 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A two rooms (converted into three rooms) of the Southern Dharmshalla of
Martand shrine till their (Sikhs) fallen Dharamshalla, which was away from
the Marland Tirath was reconstructed for enabling them to place their
0

'Gra nth Sahib' there. In the same paragraph it is stated that it was decided
with the Dharmarth Department along with the Hon'ble Minister that both
the rooms would be got vacated and Granth Sahib will be placed in new
B Dharamshalla and these two rooms will be used for keeping Granth Sahib
till new Dharamshalla was constructed at the Government expense. It is
also stated therein that the compromise deed was executed on 4 Assuj 1992
jointly by the representatives of the Sikhs and Dharmarth Department in
the presence of the Wazir Wazarath Anantnag and the Hon'ble Finance
c Minister resolving the dispute in relation to the said rooms between the
Dharmarth Department and Sikhs - the defendants. Admittedly, no new
Dharamshalla which was to be built either by Sikhs or by the Government
has yet been built to enable Sikhs - the defendants to shift their Granth
Sahib from the two rooms (converted into three rooms) of Southern
Dharamshalla of the Marland shrine and vacate those rooms. When the
D
possession of the two rooms (converted into three rooms) in the Southern
Dharamshalla was given to Sikhs - the defendants, for keeping their Granth
Sahib by the Dharmarth Department at the instance of Maharaja Partap
Singh, the Dharmarth Department of the Government which was in the
management of the Southern Dharamshalla of the Marland shrine gave two
E rooms of it to Sikhs for keeping their Granth Sabib, till a new Dharamshalla
was built by Sikhs themselves or by the Government for them for shifting
the sacred Granth Sahib. Hindus, the plaintiffs, in our view, cannot wriggle
out of the situation created by action of Dharmarth Department, as
manager ·.of Marland shrine and its Dharamshallas, for them. Moreover,
there is a realisation on the part of the defendants that the claim of
F
ownership made by them in respect of Marland shrine and its precincts on
behalf of Sikhs was wholly unjustified as seen for what is stated in paras
39 and 40 of their written submissions which read, thus:

"39. Ever since the judgment of the learned third Judge after filing
G of the appeal before this Hon'ble Cour~ the parties have recon-
ciled to the position as settled by the Division Bench and there
•
has not been any conflict worth mentioning rather peace and
harmony have ever since prevailed. The respondents have not filed
any appeal before this Hon'ble Court even though the final judg-
H ment is partially against them. They did not file an appeal with the
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] Tl3

intention that peace and harmony prevails in the locality amongst A
the two communities."

"40. The appellants have also reconciled to the position and also
informed this Hon'ble Court that they have no grievance against
the continuance in possession by the respondents in respect of the
three rooms and the celeberation of the three festivals : Dasmi, B
Chhatipatshahi and Baisakhi which is the subject matter of the
appeal."

Hence, in our view, it would not be in the interest of justice to order
ejection of the defendants from the said two rooms (now converted into C
three rooms) of Southern Dharamshalla of Marland shrine, as sought by
the plaintiffs in the suit. However, the.fr right to continue in the possession
of the said two rooms (converted into three rooms) where they have placed
their Granth Sahib since has to be ·regarded as permissive possession, any
act which may be committed by Sikhs - the defendants by taking advantage
of the permissive possession held by them of the said rooms which could D
result in obstruc.tion of the performance of poojas in the shrine or religious_
ceremonies at the springs or the open spaces of the shrine by Hindus, it
has to be made clear, gives Hindus - the plaintiffs a cause of action for the
defendants' ejectment from the two rooms (converted into three rooms) by
having recourse to appropriate legal proceedings. We answer the point E
under consideration accordingly taking recourse to Article 142(1) of the
Constitution empowering this Court to make such order as is necessary, to
do complete justice in any matter or cause before it.

Point-6:
F
The point here concerns the rights of Sikhs - the defendants to hold
Dewans on three specific occasion of the year, namely, Baisakhi, Daswi
and Chatti Padshahi in the open space of the Marland shrine towards
Pahalgam Road. No doubt, we have come to the conclusion that the
defendants have failed to establish easementary right to hold such Dewans G
in the open space. Even then, when the plaintiffs have allowed the defen-
dants - Sikhs to have two rooms (converted into three rooms) of Southern
Dharamshalla of Marland shrine for placing their Granth Sahib and when
as of necessity Sikhs - the defendants are compelled to hold Dewans in a.
convenient place close to those two rooms (converted into three rooms),
it cannot be in the interest of justice to resfrain Sikhs - the defendants from H
724 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A holding Dewans in the above open space of the Marland shrine towards
Pahalgam Road on three occasions when permission to hold such Dewans
is granted by .Talal-ud-Din, .T. and Farooqi, J. while deciding the appeals
even though we have not found favour with the reasons given therefor.
However, the permission so granted shall cease when the defendants'
permissive possession of two rooms (converted into three rooms) in
B Southern Dharamshalla of Marland Shrine comes to an end. It is made
clear in the interest of .iustice itself that Sikhs - the defendants whenever
decide to hold Dewans in the open space of Marland shrine towards
Pahalgam Road on any of the three occasions in a year adverted to by the
said learned Judges, the same ought to be held by requiring the people
C interested in attending such Dewans to reach the open space concerned
directly from Pahalgam Road and not by crossing the other Martand shrine
premises or the springs where the Hindus would be performing their
poojas or holding religious ceremonies or rites. If the holding of the said
Dcwans, it is made clear, is sought to be done or is done by allowing the
people to congregate for Dewans in the open space crossing the other
D Marland shrine premises, or springs that would give a cause of action for
Hindus - there plaintiffs to take legal proceedings against the defendants
to prevent them from holding Dewans or congregations in the open space
of Marland shrine towards Pahalgam Road, as is permitted by the learned
Judges Jalal-ud-Din & Farooqi, JJ. in their judgments in the present
E appeal, we answer the point under consideration accordingly in exercise of
our jurisdiction under Article 142 (1) of the Constitution for doing com-
plete justice in the cause or matter before us, because of its extra-ordinary
nature.

Having regard to the total effect of the answers given by us on the
F points formulated as arising for our consideration in this appeal, the appeal
is liable to be dismissed, subject to the liability of the defendants for
ejectment from the two rooms (converted into three rooms) of Southern
Dharamshalla of Marland shrine, if they misuse their permissive possession
under which they are allowed continue in those rooms and of the liability
G of the defendants to be restrained from using the open space of Marland
shrine towards Pahalgam Road, to hold Dewans on three occasions every
year, if they or their men misuse the permission to hold such Dewans now
granted by indulging in acts that would cause obstruction or annoyance to
Hindus in performance of their poojas or conducting religious ceremonies
H in the precincts of their own Marland shrine and springs therein.
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.] 725

In the result the appeal is dismissed. However, Sikhs' (the A
defendants') continuance in permissive possession of two rooms (converted
into three rooms) of Southern Dharamshalla of Marland Shrine, and their
user of the open space of Marland shrine towards Pahalgam Road on three
occasions of the year, namely, Baisakhi, Daswi and Chatti Padshahi, shall
be subject to the fulfilment of the conditions imposed by us in recording B
our answers on the points considered by us in this appeal.

Having regard to the nature of dispute in this appeal, there shall be
no order as to costs.

T.W. Appeal dismissed.