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CASE NO.: Appeal (civil)  7662 of 1997

PETITIONER: Rame Gowda (D) by Lrs.                                           

RESPONDENT: M. Varadappa Naidu (D) by Lrs. & Anr.                     

DATE OF JUDGMENT: 15/12/2003

BENCH: R.C. Lahoti, B.N. Srikrishna & G.P. Mathur

JUDGMENT: J U D G M E N T

R.C. Lahoti, J.

       The defendant is in appeal feeling aggrieved by the judgment and  decree of the Trial Court, upheld by the High Court, restraining him from  interfering with the possession and enjoyment of the suit schedule property  by the respondent.

       The plaintiff and the defendant \026 both have expired.  Their LRs are  on record.  For the sake of convenience we are making reference to the  original parties i.e. the plaintiff and the defendant.

       The suit property, a piece of land, is situated in Arekempanahally,  36th Division.   It appears that the plaintiff and the defendant both claim to  be owning two adjoining pieces of land. There is a dispute as to the exact  dimensions and shapes (triangular or rectangular) of the pieces of land  claimed to be owned and possessed respectively by the two parties.  The  real dispute, it seems, is about the demarcation of the boundaries of the two  pieces of land. However, the fact remains, and that is relevant for our  purpose, that the piece of land which forms the subject-matter of the suit is  in the possession of the plaintiff-respondent.  The plaintiff-respondent was  raising construction over the piece of land in his possession, and that was  obstructed by the defendant-appellant claiming that the land formed part of  his property and was owned by him.  The plaintiff filed a suit alleging his  title as also his possession over the disputed piece of land.  The Trial Court  found that although the plaintiff had failed in proving his title, he had  succeeded in proving his possession over the suit property which he was  entitled to protect unless dispossessed therefrom by due process of law.  On  this finding the Trial Court issued an injunction restraining the defendant- appellant from interfering with the peaceful possession and enjoyment of  the plaintiff-respondent over the suit property.   

       It is contended by the learned counsel for the defendant-appellant  that the suit  filed by the plaintiff was based on his title.  The suit itself was  defective inasmuch as declaration of title was not sought for though it was  in dispute.  Next, it is submitted that if the suit is based on title and if the  plaintiff failed in proving his title, the suit ought to have been dismissed  without regard to the fact that the plaintiff was in possession and whether  the defendant had succeeded in proving his title or not.  We find no merit in  both these submissions so made and with force.

       Salmond states in Jurisprudence (Twelfth Edition), "few  relationships are as vital to man as that of possession, and we may expect  any system of law, however primitive, to provide rules for its protection.  . .  . . . .  Law must provide for the safeguarding of possession.  Human nature  being what it is, men are tempted to prefer their own selfish and immediate  interests to the wide and long-term interests of society in general.  But since  an attack on a man’s possession is an attack on something which may be

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essential to him, it becomes almost tantamount to an assault on the man  himself; and the possessor may well be stirred to defend himself with force.   The result is violence, chaos and disorder." (at pp. 265, 266).

       "In English Law possession is a good title of right against anyone  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." (Salmond, ibid, pp. 294-295)

       "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)." (Salmond, ibid, p.295)

       The law in India, as it has developed, accords with the  jurisprudential thought as propounded by Salmond.  In Midnapur  Zamindary Co. Ltd. Vs. Kumar Naresh Narayan Roy and Ors. \026 1924 PC  144, Sir John Edge  summed up the Indian law by stating that in India  persons are not permitted to take forcible possession; they must obtain such  possession as they are entitled to through a Court.

       The thought has prevailed incessantly, till date,  the last and latest  one in the chain of decisions being  Ramesh Chand Ardawatiya Vs. Anil  Panjwani \026 (2003) 7 SCC 350.  In-between, to quote a few out of severals,  in  Lallu Yeshwant Singh (dead) by his legal representative Vs. Rao  Jagdish Singh and others \026 (1968) 2 SCR 203, this Court has held that a  landlord did commit trespass when he forcibly entered his own land in the  possession of a tenant whose tenancy has expired.  The Court turned down  the submission that under the general law applicable to  a lessor and a  lessee there was no rule  or principle which made it obligatory for the lessor  to resort to Court and obtain an order for possession before he could eject  the lessee.  The court quoted with approval the law as stated by a Full  Bench of Allahabad High Court in Yar Mohammad Vs. Lakshmi Das (AIR  1959 All. 1,4), "Law respects possession even if there is no title to support  it.  It will not permit any person to take the law in his own hands and to  dispossess a person in actual possession without having recourse to a court.   No person can be allowed to become a judge in his own cause." In the oft- quoted case of  Nair Service Society Ltd. Vs. K.C. Alexander and Ors. \026  (1968) 3  SCR 163, this Court held 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 all the world  but the rightful  owner.  When the facts disclose no title in either party, possession alone  decides.  The court quoted Loft’s maxim \026 ’Possessio contra omnes valet  praeter eur cui ius sit possessionis (He that hath possession hath right  against all but him that hath the very right)’ and said, "A defendant in such  a case must show in himself or his predecessor a valid legal title, or  probably a possession prior to the plaintiff’s  and thus be able to raise a  presumption prior in time". In M.C. Chockalingam and Ors. Vs. V.  Manickavasagam and Ors. \026 (1974) 1 SCC 48, this Court held that the law  forbids forcible dispossession, even with the best of title.  In Krishna Ram  Mahale (dead) by his Lrs. Vs. Mrs. Shobha Venkat Rao \026 (1989) 4 SCC  131, it was held that where a person is in settled possession of property,  even on the assumption that he had no right to remain  on the property, he

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cannot be dispossessed by the owner of the property except by recourse to  law.  In Nagar Palika, Jind Vs. Jagat Singh, Advocate \026 (1995) 3 SCC  426, this Court held that disputed questions of title are to be decided by due  process of law, but the peaceful possession is to be protected from the  trespasser without regard to the question of the origin of the possession.   When the defendant fails in proving his title to the suit land the plaintiff can  succeed in securing a decree for possession on the basis of his prior  possession against the defendant who has dispossessed him.  Such a suit  will be founded on the averment of previous possession of the plaintiff and  dispossession by the defendant.   

       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 he cases, the possession of the trespasser, just  entered into would not be called as one acquiesced to by the true owner.

       It is the settled possession or effective possession of a person  without title which would entitle him to protect his possession even as  against the true owner.  The concept of settled possession and the right of  the possessor to protect his possession against the owner has come to be  settled by a catena of decisions.  Illustratively, we may refer to  Munshi  Ram and Ors. Vs. Delhi Administration \026 (1968) 2 SCR 455, Puran  Singh and Ors. Vs. The State of Punjab \026 (1975) 4 SCC 518 and Ram  Rattan and Ors. Vs. State of Uttar Pradesh \026 (1977) 1 SCC 188.  The  authorities need not be multiplied.  In Munshi Ram & Ors.’s case (supra),  it was held that no one, including the true owner, has a right to dispossess  the trespasser by force if the trespasser is in settled possession of the land  and in such a case unless he is evicted in the due course of law, he is  entitled to defend  his possession even against the rightful owner.  But  merely stray or even intermittent acts of trespass do not give such a right  against the true owner.  The possession which a trespasser is entitled to  defend against the rightful owner must be settled possession, extending  over a sufficiently long period of time and acquiesced to by the true owner.   A  casual  act of possession would not have the effect of interrupting  the  possession of the rightful owner.  The rightful owner may re-enter and re- instate himself provided he  does not use more force than is necessary.   Such entry will be viewed only as resistance to an intrusion upon his  possession which has never been lost.  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.  In Puran  Singh and Ors.’s case (supra), the Court clarified that it is difficult to lay  down any hard and fast rule as to when the possession of a trespasser can  mature into settled possession.  The ’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.  The phrase ’settled  possession’ does not carry any special  charm or magic in it; nor is it a  ritualistic formula which can be confined in a strait-jacket.  An occupation

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of the property by a person as an agent or a servant acting at the instance of  the owner will not amount to actual physical possession.  The court laid  down the following tests which may be adopted as a working rule for  determining the attributes of ’settled possession’ : i)      that the trespasser must be in actual physical possession of the  property over a sufficiently long period;

ii)     that the possession must be to the knowledge  (either express or  implied) of the owner or without any attempt at concealment by the  trespasser and which contains an element of animus possidendi.  The  nature of possession of the trespasser would, however, be a matter to  be decided on the facts and circumstances of each case;

iii)    the process of dispossession of the true owner by the trespasser must  be complete and final and must be acquiesced to by the true owner;  and

iv)     that one of the usual tests to determine the quality of settled  possession, in the case of culturable land, would be whether or not  the trespasser, after having taken possession, had grown any crop.  If  the crop had been grown by the trespasser, then even the true owner  has no right to destroy the crop grown by the trespasser and take  forcible possession.

In the cases of Munshi Ram and Ors.(supra)  and  Puran Singh and  Ors. (supra), the Court has approved the statement of law made in Horam  Vs. Rex \026 AIR 1949 Allahabad 564, wherein a distinction was drawn  between the trespasser in the process of acquiring possession and the  trespasser who had already accomplished or completed his possession  wherein the true owner may be treated to have acquiesced in; while the  former can be obstructed and turned out by the true owner even by using  reasonable force, the latter, may be dispossessed by the true owner only by  having recourse to the due process of law for re-acquiring possession over  his property.

       In the present case the Court has found the plaintiff as having failed  in proving his title.  Nevertheless, he has been found to be in settled  possession of the property.  Even the defendant failed in proving his title  over the disputed land so as to substantiate his entitlement to evict the  plaintiff.  The Trial Court therefore  left the question of title open and  proceeded to determine the suit on the basis of possession, protecting the  established possession and restraining the attempted interference therewith.   The Trial Court and the High Court have rightly decided the suit.  It is still  open to the defendant-appellant to file a suit  based on his title against the  plaintiff-respondent and evict the latter on the former establishing his better  right to possess  the property.

       The learned counsel for the appellant relied on the Division Bench  decision in Sri Dasnam Naga Sanyasi and Anr. Vs. Allahabad  Development Authority, Allahabad and Anr. \026 AIR 1995 Allahabad 418  and a Single Judge decision in  Kallappa Rama Londa Vs. Shivappa  Nagappa Aparaj and Ors. \026 AIR 1995 Karnataka 238 to submit that in the  absence of declaration of title having been sought for, the suit filed by the  plaintiff-respondent was not maintainable, and should have been dismissed  solely on this ground.  We cannot agree. Sri Dasnam Naga Sanyasi and  Anr.’s case relates to the stage of grant of temporary injunction wherein, in  the facts and circumstances of that case, the Division Bench of the High  Court upheld the decision of the court below declining the discretionary  relief of ad-interim injunction to the plaintiff on the ground that failure to  claim declaration of title in the facts of that case spoke against the conduct  of the plaintiff and was considered to be ’unusual’.  In Kallappa Rama  Londa’s case, the learned Single Judge has upheld the maintainability of a  suit merely seeking injunction, without declaration of title, and on dealing  with several decided cases the learned Judge has agreed with the  proposition that where the suit for declaration of title and injunction is filed

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and the title is not clear, the question of title will have to be kept open  without denying the plaintiff’s claim for injunction in view of the fact that  the plaintiff has been in possession and there is nothing to show that the  plaintiff has gained possession by any unfair means just prior to the suit.   That is the correct position of law.   In Fakirbhai Bhagwandas and Anr.  Vs. Maganlal Haribhai and Anr. \026 AIR 1951 Bombay 380 a Division  Bench spoke through Bhagwati, J. (as his Lordship then was), and held that  it is not necessary for the person claiming injunction to prove his title to the  suit land.  It would suffice if he proves that he was in lawful possession of  the same and that his possession was invaded or threatened to be invaded  by a person who has no title thereof.  We respectfully agree with the view  so taken.  The High Court has kept the question of title open.  Each of the  two contending parties would be at liberty to plead all relevant facts  directed towards establishing their titles, as respectively claimed, and  proving the same  in duly constituted legal proceedings.  By way of  abundant caution, we clarify that the impugned judgment shall not be taken  to have decided the question of title to the suit property for or against any  of the contending parties.

       No fault can be found with the judgment and decree appealed  against.  The appeal is devoid of any merit and is dismissed.