In the case of Rame Gowda (dead) by Lrs. v. M.
Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC
769, a threeJudge
Bench of this Court, while discussing the
Indian law on the subject, observed as under:8
“8. It is thus clear that so far as the Indian law is
concerned the person in peaceful possession is
entitled to retain his possession and in order to
protect such possession he may even use
reasonable force to keep out a trespasser. A rightful
owner who has been wrongfully dispossessed of land
may retake possession if he can do so peacefully
and without the use of unreasonable force. If the
trespasser is in settled possession of the property
belonging to the rightful owner, the rightful owner
shall have to take recourse to law; he cannot take
the law in his own hands and evict the trespasser or
interfere with his possession. The law will come to
the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from
using force or taking law in his own hands, and also
by restoring him in possession even from the
rightful owner (of course subject to the law of
limitation), if the latter has dispossessed the prior
possessor by use of force. In the absence of proof of
better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes
the possession to go with the title unless rebutted.
The owner of any property may prevent even by
using reasonable force a trespasser from an
attempted trespass, when it is in the process of
being committed, or is of a flimsy character, or
recurring, intermittent, stray or casual in nature, or
has just been committed, while the rightful owner
did not have enough time to have recourse to law. In
the last of the cases, the possession of the
trespasser, just entered into would not be called as
one acquiesced to by the true owner.”
13. The crux of the matter is that a person who asserts
possessory title over a particular property will have to show that
he is under settled or established possession of the said property.
But merely stray or intermittent acts of trespass do not give such
a right against the true owner. Settled possession means such
possession over the property which has existed for a sufficiently
long period of time, and has been acquiesced to by the true
owner. A casual act of possession does not have the effect of
interrupting the possession of the rightful owner. A stray act of
trespass, or a possession which has not matured into settled
possession, can be obstructed or removed by the true owner even
by using necessary force. Settled possession must be (i) effective,
(ii) undisturbed, and (iii) to the knowledge of the owner or without
any attempt at concealment by the trespasser. There cannot be a
straitjacket formula to determine settled possession. Occupation
of a property by a person as an agent or a servant acting at the
instance of the owner will not amount to actual legal possession.
The possession should contain an element of animus possidendi.
The nature of possession of the trespasser is to be decided based
on the facts and circumstances of each case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4527 OF 2009
POONA RAM Vs MOTI RAM
Dated:January 29, 2019.
MOHAN M. SHANTANAGOUDAR, J.
Citation: 2020(1) MHLJ 183
1. The judgment dated 28.08.2006 passed by the High Court
of Judicature of Rajasthan at Jodhpur in Civil Second Appeal No.
97 of 1984 and the concurrent judgment dated 10.10.2006 in
Civil Review Petition No. 18 of 2006, dismissing the same, are
called in question in this appeal by the unsuccessful defendants.
2. The brief facts leading to this appeal are as under:
A suit came to be filed for declaration of title and for
possession by Respondent No. 1 herein. Undisputedly, the
plaintiff Moti Ram had no document of title to prove his
possession, but claimed possessory title based on prior
possession for a number of years. However, according to the
plaintiff, he had been wrongly dispossessed by defendants on
30.04.1972, which was within the 12 years preceding the filing
of the present suit. The Trial Court decreed the suit and the First
Appellate Court reversed the findings of the Trial Court. The First
Appellate Court dismissed the said suit on the ground that the
defendants had proved their title and possession over the suit
property.
3 As mentioned supra, the plaintiff did not have any title deed
with respect to the suit property. He based his claim mainly on
his alleged long possession over the property, and claimed that
there was nobody with better title over it than him. Per contra,
the defendants relied on two sale deeds, viz., Ex. A6
dated
06.02.1956, executed by the original owner Khoom Singh in
favour of Purkha Ram, and Ex. A2
dated 21.06.1966, executed
by Purkha Ram in favour of the appellant/Defendant No. 1. It
was also not disputed that the plaintiff did not have possession
as on the date of filing of the suit, inasmuch as he has alleged
that he was wrongly dispossessed by the defendant on
30.04.1972, prior to filing the suit.
4. The only questions to be decided in this appeal are whether
the plaintiff had better title over the suit property and whether he
was in settled possession of the property, which required
dispossession in accordance with law.
5. Ms. Christi Jain, learned counsel appearing for the
appellant/Defendant No. 1, taking us through the material on
record, contends that there is nothing on record to show that the
plaintiff was in possession of the property at any point of time,
much less for a longer time lawfully. There is no material to
show that the plaintiff has possessory title over the suit property.
Additionally, she argues that the sale deeds mentioned supra
relied upon by the defendants would clearly reveal that the
defendants were in possession of the property as owner thereof,
from the date of purchase of the suit property.
6. Undisputedly and as duly admitted by both parties, the
property in question originally belonged to Jagirdar Khoom Singh
of Barmer. The property in question is part of a larger property
under the Jagirdari system, a few parts of which were rented out
or sold. After the system of Jagirdari was abolished, these jagirs
were resumed in the year 195556.
While a few persons
continued in illegal possession, others had purchased parts of
the land from the Jagirdar, and the remaining land vested in the
State Government and municipalities. After the resumption of the
jagir, it seems that the Barmer Municipality established a
planned and wellmanaged
colony named Nehru Nagar on the
said land. Ex.12, Ex. 13 and Ex. 14 are the survey maps of the
Municipality. A perusal of Ex. 12 (first survey) reveals that Moti
Ram was in possession of the land, the plot to the east of which
was possessed by Nawala Harijan and in the east of Nawala
Harijan’s plot, possession of Purkha Ram (to recall, predecessorininterest
of the defendants) on the site has been indicated.
Further, the possession of Purkha Ram has also been indicated
on a plot to the south of the land duly possessed by Moti Ram.
Thus, it is clear that the plots of land owned by Khoom Singh, in
possession of these persons, were not uniformly situated.
However, after the Municipality took over possession, it seems
that orderly formation of the plots was undertaken. Though there
was some confusion raised by the plaintiff with regard to the
boundaries of the property in question, the First Appellate Court
being the final court of fact, on due appreciation of the entire
material on record, gave a definite finding that the Trial Court
was not justified in decreeing the suit, and observed that Purkha
Ram was in possession of the property in question even prior to
1966, and had sold the same through registered sale deed in
June 1966 vide Ex. A2.
This sale deed shows the measurement
of the land, which corresponds to the plots in question
approximately. The judgment of the First Appellate Court reveals
that the Municipality had let out only three plots to the Jagirdar,
and those three plots together measured 32 x 66
hands (unit of measurement). Thus, each plot measured
32 x 22 hands. These were numbered as Plot No. 4, Plot No. 5
and Plot No. 7. The disputed site is Plot No. 7.
7. The official record (survey map), Ex. 14, which relates to the
plot in question, i.e., Plot No. 7, reveals that it was owned by
Poona Ram, who is Defendant No. 1 and the appellant herein. It
is also relevant to note that sanction for constructing the house
was given to Purkha Ram in the year 1957. Obviously, such
sanction would have been accorded only on the basis of title and
possession of the property.
8. Section 64 of the Limitation Act, 1963 contemplates a suit
for possession of immovable property based on previous
possession and not on title, if brought within 12 years from the
date of dispossession. Such a suit is known in law as a suit
based on possessory title as distinguishable from proprietary
title. It cannot be disputed and is by now well settled that
‘settled possession’ or effective possession of a person without
title entitles him to protect his possession as if he were a true
owner.
9. The law in India, as it has developed, accords with
jurisprudential thought as propounded by luminaries like
Salmond. Salmond on Jurisprudence (12 Edn. at paras 5960)
states:"
These two concepts of ownership and possession,
therefore, may be used to distinguish between the
de facto possessor of an object and its de jure
owner, between the man who actually has it and
the man who ought to have it. They serve also to
contract the position of one whose rights are
ultimate, permanent and residual with that of one
whose rights are only of a temporary nature.
x x x x x
In English law possession is a good title of right
against any one who cannot show a better. A
wrongful possessor has the rights of an owner with
respect to all persons except earlier possessors and
except the true owner himself. Many other legal
systems, however, go much further than this, and
treat possession as a provisional or temporary title
even against the true owner himself. Even a
wrongdoer, who is deprived of his possession, can
recover it from any person whatever, simply on the
ground of his possession. Even the true owner,
who takes his own, may be forced in this way to
restore it to the wrongdoer, and will not be
permitted to set up his own superior title to it. He
must first give up possession, and then proceed in
due course of law for the recovery of the thing on
the ground of his ownership. The intention of the
law is that every possessor shall be entitled to
retain and recover his possession, until deprived of
it by a judgment according to law.
Legal remedies thus appointed for the protection of
possession even against ownership are called
possessory, while those available for the protection
of ownership itself may be distinguished as
proprietary. In the modern and medieval civil law
the distinction is expressed by the contrasted
terms petitorium (a proprietary suit) and
possessorium (a possessory suit)."
10. As far back as 1924, in the case of Midnapur Zamindary
Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned
Judge observed that in India, persons are not permitted to take
forcible possession; they must obtain such possession as they are
entitled to through a court. Later, in the case of Nair Service
Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court
ruled that when the facts disclose no title in either party,
possession alone decides. It was further held that if Section 9 of
the Specific Relief Act, 1877 (corresponding to the present Section
6) is employed, the plaintiff need not prove title and the title of the
defendant does not avail him. When, however, the period of six
months has passed, questions of title can be raised by the
defendant, and if he does so the plaintiff must establish a better
title or fail. In other words, such a right is only restricted to
possession in a suit under Section 9 of the Specific Relief Act
(corresponding to the present Section 6) but does not bar a suit
on prior possession within 12 years from the date of
dispossession, and title need not be proved unless the defendant
can provide one.
11. It was also observed by this Court in Nair Service Society
Ltd (supra) that a person in possession of land in assumed
character of owner and exercising peaceably the ordinary rights of
ownership has a perfectly good title against the entire world
except the rightful owner. In such a case, the defendant must
show in himself or his predecessor a valid legal title and probably
a possession prior to the plaintiff’s, and thus be able to raise a
presumption prior in time.
12. In the case of Rame Gowda (dead) by Lrs. v. M.
Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC
769, a threeJudge
Bench of this Court, while discussing the
Indian law on the subject, observed as under:8
“8. It is thus clear that so far as the Indian law is
concerned the person in peaceful possession is
entitled to retain his possession and in order to
protect such possession he may even use
reasonable force to keep out a trespasser. A rightful
owner who has been wrongfully dispossessed of land
may retake possession if he can do so peacefully
and without the use of unreasonable force. If the
trespasser is in settled possession of the property
belonging to the rightful owner, the rightful owner
shall have to take recourse to law; he cannot take
the law in his own hands and evict the trespasser or
interfere with his possession. The law will come to
the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from
using force or taking law in his own hands, and also
by restoring him in possession even from the
rightful owner (of course subject to the law of
limitation), if the latter has dispossessed the prior
possessor by use of force. In the absence of proof of
better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes
the possession to go with the title unless rebutted.
The owner of any property may prevent even by
using reasonable force a trespasser from an
attempted trespass, when it is in the process of
being committed, or is of a flimsy character, or
recurring, intermittent, stray or casual in nature, or
has just been committed, while the rightful owner
did not have enough time to have recourse to law. In
the last of the cases, the possession of the
trespasser, just entered into would not be called as
one acquiesced to by the true owner.”
13. The crux of the matter is that a person who asserts
possessory title over a particular property will have to show that
he is under settled or established possession of the said property.
But merely stray or intermittent acts of trespass do not give such
a right against the true owner. Settled possession means such
possession over the property which has existed for a sufficiently
long period of time, and has been acquiesced to by the true
owner. A casual act of possession does not have the effect of
interrupting the possession of the rightful owner. A stray act of
trespass, or a possession which has not matured into settled
possession, can be obstructed or removed by the true owner even
by using necessary force. Settled possession must be (i) effective,
(ii) undisturbed, and (iii) to the knowledge of the owner or without
any attempt at concealment by the trespasser. There cannot be a
straitjacket formula to determine settled possession. Occupation
of a property by a person as an agent or a servant acting at the
instance of the owner will not amount to actual legal possession.
The possession should contain an element of animus possidendi.
The nature of possession of the trespasser is to be decided based
on the facts and circumstances of each case.
14. As mentioned supra, Purkha Ram had purchased three
plots from Jagirdar Khoom Singh. In sale deed Ex. A6,
three
plots have been mentioned as plots of three houses. One of these,
being Plot No. 7, was sold by Purkha Ram to the appellant, one
10
plot being Plot No. 4 was sold to Teja Ram and the third plot
being Plot No. 5 was retained by Purkha Ram.
15. In order to prove possession of the property, the plaintiff
relied upon the rent note Ex. 1, which shows that the plot in
question was let out by the plaintiff to one Joga Ram in the year
1967. On 12.05.1967, a fire broke out and the entire fodder
stored on the plot got burnt. Thereafter, the plot was kept vacant.
DW7,
who has been referred to in order to establish spreading of
the fire, stated that the fire started due to sparks coming from a
railway engine. But there was no railway line adjacent to the
disputed land which could have caused a fire. Even otherwise,
the rent note Ex. 1 does not refer to the plot in question, and its
boundaries have also not been mentioned. Merely on doubtful
material and cursory evidence, it cannot be held that the plaintiff
was ever in possession of the property, and that too in settled
possession.
16. The plaintiff/Respondent No. 1 makes much of the old body
of a motor vehicle belonging to him lying on the property. Ex. 2
clearly reveals that one part of the motor vehicle was lying on the
disputed property and another part was lying on the plot of the
plaintiff. The said body of the motor vehicle is about 3 to 4 feet in
length only and the same was lying on the boundary of the
disputed property. But the plaintiff/Respondent No. 1 claims
possession of the entire plot based on such fact. Absolutely no
material is found to show that the plaintiff/Respondent No. 1 was
in actual possession, much less continuous possession, of the
property for a longer period which may be called settled
possession or established possession. As mentioned supra, mere
casual possession, that too relying on a motor vehicle body lying
on a part of the property, would not prove settled possession of
the plaintiff.
17. The plaintiff has to prove his case to the satisfaction of the
Court. He cannot succeed on the weakness of the case of the
defendant. Even otherwise, there is no confusion at all regarding
the identity of the property in question and on the basis of
material on record, the First Appellate Court has correctly ruled
that the appellant/Defendant No. 1 has proved his title and
possession over the suit property since the date of his purchase of
the property. Prior to the purchase, his predecessorininterest
was in possession of the same.
18. Having regard to the position of law and facts of the case,
we are of the considered opinion that the High Court was not
justified in interfering with the judgment of the First Appellate
Court, which has come down very heavily on the procedure
adopted by the trial Judge in deciding the matter, more
particularly when no fault can be found on facts with the
judgment of the First Appellate Court.
Generally, it is not open to the High Court to interfere with
the findings of fact recorded by the First Appellate Court when
such findings are based on the evidence on record, and are not
perverse or against the material on record.
19. The conclusion arrived at by the High Court and the
reasons assigned for the same are not correct inasmuch as there
is absolutely no material in favour of the case of the plaintiff to
show possessory title. In order to claim possessory title, the
plaintiff will have to prove his own case, and also will have to
show that he has better title than any other person. Since there
is no documentary proof that the plaintiff was in possession of
the suit property, that too for a long period, he cannot be allowed
to succeed based on minor discrepancies in the evidence of the
defendants. Accordingly, the appeal succeeds and is allowed.
20. The impugned judgment of the High Court dated
28.08.2006 and its review stands set aside and the judgment of
the First Appellate Court is restored. Consequently, suit stands
dismissed.
………………………………..J.
[ N.V. Ramana]
………………………………..J.
[Mohan M. Shantanagoudar]
New Delhi;
January 29, 2019.
Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC
769, a threeJudge
Bench of this Court, while discussing the
Indian law on the subject, observed as under:8
“8. It is thus clear that so far as the Indian law is
concerned the person in peaceful possession is
entitled to retain his possession and in order to
protect such possession he may even use
reasonable force to keep out a trespasser. A rightful
owner who has been wrongfully dispossessed of land
may retake possession if he can do so peacefully
and without the use of unreasonable force. If the
trespasser is in settled possession of the property
belonging to the rightful owner, the rightful owner
shall have to take recourse to law; he cannot take
the law in his own hands and evict the trespasser or
interfere with his possession. The law will come to
the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from
using force or taking law in his own hands, and also
by restoring him in possession even from the
rightful owner (of course subject to the law of
limitation), if the latter has dispossessed the prior
possessor by use of force. In the absence of proof of
better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes
the possession to go with the title unless rebutted.
The owner of any property may prevent even by
using reasonable force a trespasser from an
attempted trespass, when it is in the process of
being committed, or is of a flimsy character, or
recurring, intermittent, stray or casual in nature, or
has just been committed, while the rightful owner
did not have enough time to have recourse to law. In
the last of the cases, the possession of the
trespasser, just entered into would not be called as
one acquiesced to by the true owner.”
13. The crux of the matter is that a person who asserts
possessory title over a particular property will have to show that
he is under settled or established possession of the said property.
But merely stray or intermittent acts of trespass do not give such
a right against the true owner. Settled possession means such
possession over the property which has existed for a sufficiently
long period of time, and has been acquiesced to by the true
owner. A casual act of possession does not have the effect of
interrupting the possession of the rightful owner. A stray act of
trespass, or a possession which has not matured into settled
possession, can be obstructed or removed by the true owner even
by using necessary force. Settled possession must be (i) effective,
(ii) undisturbed, and (iii) to the knowledge of the owner or without
any attempt at concealment by the trespasser. There cannot be a
straitjacket formula to determine settled possession. Occupation
of a property by a person as an agent or a servant acting at the
instance of the owner will not amount to actual legal possession.
The possession should contain an element of animus possidendi.
The nature of possession of the trespasser is to be decided based
on the facts and circumstances of each case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4527 OF 2009
POONA RAM Vs MOTI RAM
Dated:January 29, 2019.
MOHAN M. SHANTANAGOUDAR, J.
Citation: 2020(1) MHLJ 183
1. The judgment dated 28.08.2006 passed by the High Court
of Judicature of Rajasthan at Jodhpur in Civil Second Appeal No.
97 of 1984 and the concurrent judgment dated 10.10.2006 in
Civil Review Petition No. 18 of 2006, dismissing the same, are
called in question in this appeal by the unsuccessful defendants.
2. The brief facts leading to this appeal are as under:
A suit came to be filed for declaration of title and for
possession by Respondent No. 1 herein. Undisputedly, the
plaintiff Moti Ram had no document of title to prove his
possession, but claimed possessory title based on prior
possession for a number of years. However, according to the
plaintiff, he had been wrongly dispossessed by defendants on
30.04.1972, which was within the 12 years preceding the filing
of the present suit. The Trial Court decreed the suit and the First
Appellate Court reversed the findings of the Trial Court. The First
Appellate Court dismissed the said suit on the ground that the
defendants had proved their title and possession over the suit
property.
3 As mentioned supra, the plaintiff did not have any title deed
with respect to the suit property. He based his claim mainly on
his alleged long possession over the property, and claimed that
there was nobody with better title over it than him. Per contra,
the defendants relied on two sale deeds, viz., Ex. A6
dated
06.02.1956, executed by the original owner Khoom Singh in
favour of Purkha Ram, and Ex. A2
dated 21.06.1966, executed
by Purkha Ram in favour of the appellant/Defendant No. 1. It
was also not disputed that the plaintiff did not have possession
as on the date of filing of the suit, inasmuch as he has alleged
that he was wrongly dispossessed by the defendant on
30.04.1972, prior to filing the suit.
4. The only questions to be decided in this appeal are whether
the plaintiff had better title over the suit property and whether he
was in settled possession of the property, which required
dispossession in accordance with law.
5. Ms. Christi Jain, learned counsel appearing for the
appellant/Defendant No. 1, taking us through the material on
record, contends that there is nothing on record to show that the
plaintiff was in possession of the property at any point of time,
much less for a longer time lawfully. There is no material to
show that the plaintiff has possessory title over the suit property.
Additionally, she argues that the sale deeds mentioned supra
relied upon by the defendants would clearly reveal that the
defendants were in possession of the property as owner thereof,
from the date of purchase of the suit property.
6. Undisputedly and as duly admitted by both parties, the
property in question originally belonged to Jagirdar Khoom Singh
of Barmer. The property in question is part of a larger property
under the Jagirdari system, a few parts of which were rented out
or sold. After the system of Jagirdari was abolished, these jagirs
were resumed in the year 195556.
While a few persons
continued in illegal possession, others had purchased parts of
the land from the Jagirdar, and the remaining land vested in the
State Government and municipalities. After the resumption of the
jagir, it seems that the Barmer Municipality established a
planned and wellmanaged
colony named Nehru Nagar on the
said land. Ex.12, Ex. 13 and Ex. 14 are the survey maps of the
Municipality. A perusal of Ex. 12 (first survey) reveals that Moti
Ram was in possession of the land, the plot to the east of which
was possessed by Nawala Harijan and in the east of Nawala
Harijan’s plot, possession of Purkha Ram (to recall, predecessorininterest
of the defendants) on the site has been indicated.
Further, the possession of Purkha Ram has also been indicated
on a plot to the south of the land duly possessed by Moti Ram.
Thus, it is clear that the plots of land owned by Khoom Singh, in
possession of these persons, were not uniformly situated.
However, after the Municipality took over possession, it seems
that orderly formation of the plots was undertaken. Though there
was some confusion raised by the plaintiff with regard to the
boundaries of the property in question, the First Appellate Court
being the final court of fact, on due appreciation of the entire
material on record, gave a definite finding that the Trial Court
was not justified in decreeing the suit, and observed that Purkha
Ram was in possession of the property in question even prior to
1966, and had sold the same through registered sale deed in
June 1966 vide Ex. A2.
This sale deed shows the measurement
of the land, which corresponds to the plots in question
approximately. The judgment of the First Appellate Court reveals
that the Municipality had let out only three plots to the Jagirdar,
and those three plots together measured 32 x 66
hands (unit of measurement). Thus, each plot measured
32 x 22 hands. These were numbered as Plot No. 4, Plot No. 5
and Plot No. 7. The disputed site is Plot No. 7.
7. The official record (survey map), Ex. 14, which relates to the
plot in question, i.e., Plot No. 7, reveals that it was owned by
Poona Ram, who is Defendant No. 1 and the appellant herein. It
is also relevant to note that sanction for constructing the house
was given to Purkha Ram in the year 1957. Obviously, such
sanction would have been accorded only on the basis of title and
possession of the property.
8. Section 64 of the Limitation Act, 1963 contemplates a suit
for possession of immovable property based on previous
possession and not on title, if brought within 12 years from the
date of dispossession. Such a suit is known in law as a suit
based on possessory title as distinguishable from proprietary
title. It cannot be disputed and is by now well settled that
‘settled possession’ or effective possession of a person without
title entitles him to protect his possession as if he were a true
owner.
9. The law in India, as it has developed, accords with
jurisprudential thought as propounded by luminaries like
Salmond. Salmond on Jurisprudence (12 Edn. at paras 5960)
states:"
These two concepts of ownership and possession,
therefore, may be used to distinguish between the
de facto possessor of an object and its de jure
owner, between the man who actually has it and
the man who ought to have it. They serve also to
contract the position of one whose rights are
ultimate, permanent and residual with that of one
whose rights are only of a temporary nature.
x x x x x
In English law possession is a good title of right
against any one who cannot show a better. A
wrongful possessor has the rights of an owner with
respect to all persons except earlier possessors and
except the true owner himself. Many other legal
systems, however, go much further than this, and
treat possession as a provisional or temporary title
even against the true owner himself. Even a
wrongdoer, who is deprived of his possession, can
recover it from any person whatever, simply on the
ground of his possession. Even the true owner,
who takes his own, may be forced in this way to
restore it to the wrongdoer, and will not be
permitted to set up his own superior title to it. He
must first give up possession, and then proceed in
due course of law for the recovery of the thing on
the ground of his ownership. The intention of the
law is that every possessor shall be entitled to
retain and recover his possession, until deprived of
it by a judgment according to law.
Legal remedies thus appointed for the protection of
possession even against ownership are called
possessory, while those available for the protection
of ownership itself may be distinguished as
proprietary. In the modern and medieval civil law
the distinction is expressed by the contrasted
terms petitorium (a proprietary suit) and
possessorium (a possessory suit)."
10. As far back as 1924, in the case of Midnapur Zamindary
Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned
Judge observed that in India, persons are not permitted to take
forcible possession; they must obtain such possession as they are
entitled to through a court. Later, in the case of Nair Service
Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court
ruled that when the facts disclose no title in either party,
possession alone decides. It was further held that if Section 9 of
the Specific Relief Act, 1877 (corresponding to the present Section
6) is employed, the plaintiff need not prove title and the title of the
defendant does not avail him. When, however, the period of six
months has passed, questions of title can be raised by the
defendant, and if he does so the plaintiff must establish a better
title or fail. In other words, such a right is only restricted to
possession in a suit under Section 9 of the Specific Relief Act
(corresponding to the present Section 6) but does not bar a suit
on prior possession within 12 years from the date of
dispossession, and title need not be proved unless the defendant
can provide one.
11. It was also observed by this Court in Nair Service Society
Ltd (supra) that a person in possession of land in assumed
character of owner and exercising peaceably the ordinary rights of
ownership has a perfectly good title against the entire world
except the rightful owner. In such a case, the defendant must
show in himself or his predecessor a valid legal title and probably
a possession prior to the plaintiff’s, and thus be able to raise a
presumption prior in time.
12. In the case of Rame Gowda (dead) by Lrs. v. M.
Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC
769, a threeJudge
Bench of this Court, while discussing the
Indian law on the subject, observed as under:8
“8. It is thus clear that so far as the Indian law is
concerned the person in peaceful possession is
entitled to retain his possession and in order to
protect such possession he may even use
reasonable force to keep out a trespasser. A rightful
owner who has been wrongfully dispossessed of land
may retake possession if he can do so peacefully
and without the use of unreasonable force. If the
trespasser is in settled possession of the property
belonging to the rightful owner, the rightful owner
shall have to take recourse to law; he cannot take
the law in his own hands and evict the trespasser or
interfere with his possession. The law will come to
the aid of a person in peaceful and settled
possession by injuncting even a rightful owner from
using force or taking law in his own hands, and also
by restoring him in possession even from the
rightful owner (of course subject to the law of
limitation), if the latter has dispossessed the prior
possessor by use of force. In the absence of proof of
better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes
the possession to go with the title unless rebutted.
The owner of any property may prevent even by
using reasonable force a trespasser from an
attempted trespass, when it is in the process of
being committed, or is of a flimsy character, or
recurring, intermittent, stray or casual in nature, or
has just been committed, while the rightful owner
did not have enough time to have recourse to law. In
the last of the cases, the possession of the
trespasser, just entered into would not be called as
one acquiesced to by the true owner.”
13. The crux of the matter is that a person who asserts
possessory title over a particular property will have to show that
he is under settled or established possession of the said property.
But merely stray or intermittent acts of trespass do not give such
a right against the true owner. Settled possession means such
possession over the property which has existed for a sufficiently
long period of time, and has been acquiesced to by the true
owner. A casual act of possession does not have the effect of
interrupting the possession of the rightful owner. A stray act of
trespass, or a possession which has not matured into settled
possession, can be obstructed or removed by the true owner even
by using necessary force. Settled possession must be (i) effective,
(ii) undisturbed, and (iii) to the knowledge of the owner or without
any attempt at concealment by the trespasser. There cannot be a
straitjacket formula to determine settled possession. Occupation
of a property by a person as an agent or a servant acting at the
instance of the owner will not amount to actual legal possession.
The possession should contain an element of animus possidendi.
The nature of possession of the trespasser is to be decided based
on the facts and circumstances of each case.
14. As mentioned supra, Purkha Ram had purchased three
plots from Jagirdar Khoom Singh. In sale deed Ex. A6,
three
plots have been mentioned as plots of three houses. One of these,
being Plot No. 7, was sold by Purkha Ram to the appellant, one
10
plot being Plot No. 4 was sold to Teja Ram and the third plot
being Plot No. 5 was retained by Purkha Ram.
15. In order to prove possession of the property, the plaintiff
relied upon the rent note Ex. 1, which shows that the plot in
question was let out by the plaintiff to one Joga Ram in the year
1967. On 12.05.1967, a fire broke out and the entire fodder
stored on the plot got burnt. Thereafter, the plot was kept vacant.
DW7,
who has been referred to in order to establish spreading of
the fire, stated that the fire started due to sparks coming from a
railway engine. But there was no railway line adjacent to the
disputed land which could have caused a fire. Even otherwise,
the rent note Ex. 1 does not refer to the plot in question, and its
boundaries have also not been mentioned. Merely on doubtful
material and cursory evidence, it cannot be held that the plaintiff
was ever in possession of the property, and that too in settled
possession.
16. The plaintiff/Respondent No. 1 makes much of the old body
of a motor vehicle belonging to him lying on the property. Ex. 2
clearly reveals that one part of the motor vehicle was lying on the
disputed property and another part was lying on the plot of the
plaintiff. The said body of the motor vehicle is about 3 to 4 feet in
length only and the same was lying on the boundary of the
disputed property. But the plaintiff/Respondent No. 1 claims
possession of the entire plot based on such fact. Absolutely no
material is found to show that the plaintiff/Respondent No. 1 was
in actual possession, much less continuous possession, of the
property for a longer period which may be called settled
possession or established possession. As mentioned supra, mere
casual possession, that too relying on a motor vehicle body lying
on a part of the property, would not prove settled possession of
the plaintiff.
17. The plaintiff has to prove his case to the satisfaction of the
Court. He cannot succeed on the weakness of the case of the
defendant. Even otherwise, there is no confusion at all regarding
the identity of the property in question and on the basis of
material on record, the First Appellate Court has correctly ruled
that the appellant/Defendant No. 1 has proved his title and
possession over the suit property since the date of his purchase of
the property. Prior to the purchase, his predecessorininterest
was in possession of the same.
18. Having regard to the position of law and facts of the case,
we are of the considered opinion that the High Court was not
justified in interfering with the judgment of the First Appellate
Court, which has come down very heavily on the procedure
adopted by the trial Judge in deciding the matter, more
particularly when no fault can be found on facts with the
judgment of the First Appellate Court.
Generally, it is not open to the High Court to interfere with
the findings of fact recorded by the First Appellate Court when
such findings are based on the evidence on record, and are not
perverse or against the material on record.
19. The conclusion arrived at by the High Court and the
reasons assigned for the same are not correct inasmuch as there
is absolutely no material in favour of the case of the plaintiff to
show possessory title. In order to claim possessory title, the
plaintiff will have to prove his own case, and also will have to
show that he has better title than any other person. Since there
is no documentary proof that the plaintiff was in possession of
the suit property, that too for a long period, he cannot be allowed
to succeed based on minor discrepancies in the evidence of the
defendants. Accordingly, the appeal succeeds and is allowed.
20. The impugned judgment of the High Court dated
28.08.2006 and its review stands set aside and the judgment of
the First Appellate Court is restored. Consequently, suit stands
dismissed.
………………………………..J.
[ N.V. Ramana]
………………………………..J.
[Mohan M. Shantanagoudar]
New Delhi;
January 29, 2019.
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