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                                                      REPORTABLE

                IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NOS.7135-7136 OF 2000

Subramaniaswamy Temple, Ratnagiri                       ... Appellant

                               Versus

V. Kanna Gounder (Dead) by LRs.                         ... Respondent

                         JUDGMENT

S.B. Sinha, J.

1.    This appeal is directed against a judgment and order dated

26.3.1999 passed by the High Court of Judicature at Madras in Second

Appeal Nos.752/87 and 800/94 whereby and whereunder the appeals

preferred by the respondent herein from a judgment and order dated

13.04.1994, passed by the First Appellate Court in AS 16 of 1983, were

allowed.

2.    The basic fact of the matter is not in dispute. Appellant is a

temple. It is of ancient origin. It was in possession of a vast tract of

land. It runs a school as also a charitable hospital. It adopted the

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practice of feeding the poor people. It has also been performing various

other activities in relation to the temple. The temple was in possession of

a vast tract of land and in particular land in survey No.370/1 admeasuring

32 acres.     Survey number 370 was classified into three different

categories, namely, (1) Survey No. 370/1 (32 acres) classified as "Sri

Subramanya Swamy Temple Poramboke"; (2) Survey No.370/2 (1 acre

44 centrs) as "High Ways Road"; and (3) Survey No.370/3 (68 cents) as

"unassessed waste".

3.     The classification of 32 acres of land of Survey No.370/1 was

made as "Sri Subramanya Swamy Temple Poramboke".                 The said

classification of temple ‘Poramboke’ in the revenue record of right

indicates the reason for which it has been set apart as also its occupation

and use. Temple Poramboke consists of unassessed waste land by the

temple. It may also include common passage, water ponds, thrashing

floor etc. etc.

4.     For the purpose of effectuating the aforementioned purpose, the

Government of Madras issued GO No.3333 on or about 25.8.1960

permitting the temple to lease out the said lands for the purpose of

augmenting its revenues subject of course to the conditions laid down

therein, which are :

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            "1.   The temple authorities before applying                    for assignment of the porambokes found                    in excess of the requirements of the                    temple and worship should obtain the                    consent of the H.R. & C.E. ADMN                    DEPARTMENT.              2.    Such lands should be granted for                    cultivation only if they are cultivable and                    only if they are not cultivable they should                    be to other uses for the benefit of the                    temple and              3.    The land should be used only for the                    purposes for which it is assigned."

5.    By reason of such classification, the appellant-temple obtained full

right to possession and exercise right to transfer of the lands assigned in

its favour. The right of the appellant to hold and possess the said land

was noticed by a Bench of the Madras High Court in 2001 (2) Law

Weekly 723 in the following terms :

            "Such a land does not cease to be a poramboke              property over which the Government will have              control subject only to the rights of the temple."

6.    Respondent herein was a licensee in respect of a shop situated in

Suvey No.370/1. A suit for an eviction was initiated. A decree was

passed. Respondent was evicted from the said shop. However, he is said

to have encroached upon 300 sq. ft. of land in the said survey later on.

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The defence taken by the respondent was that the land occupied by him

pertains to Survey No.144 and not to Survey No.370/1. A suit was

instituted for his eviction. In the said suit, the possessory title of the

temple was affirmed but it was dismissed on the ground that respondent

had already taken possession and, therefore, the remedy of the appellant

would only be to file a suit for recovery thereof.

7.    An appeal suit was preferred. At the same time, pursuant to the

observations made by the District Court in its judgment dated

20.11.1985, a suit was instituted. The suit was decreed. An appeal

preferred thereagainst was also dismissed. Respondent filed a second

appeal which was marked as Second Appeal No.800 of 1994 which was

tagged with the second appeal preferred by the appellant being Second

Appeal No.752 of 1997. Both the appeals were taken up for hearing

together. By reason of the impugned judgment whereas the Second

Appeal filed by the appellant was dismissed, that of the respondent was

allowed holding that appellant had failed to prove any title over the said

land by way of patta or otherwise as also the fact that possession had

been delivered in its favour by the State.

8.    Mr. S. Balakrishnan, learned senior counsel appearing on behalf of

the appellant, would submit that the High Court committed a serious

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error in passing the impugned judgment in so far as it failed to take into

consideration the concept of possessory title.

9.    Mr. Ramakrishna Reddy, learned counsel appearing on behalf of

the respondent, however, supported the impugned judgment.

10.   The High Court, in its impugned judgment proceeded on the basis

that there had been no assignment in favour of the temple by the State. It

committed an error in relation thereto. The paramount title of the State is

not disputed. It remain vested in the State. The State, however, having

regard to the possession of the appellant over 32 acres of land classified

the same as ‘temple poramboke’. It, by reason of the said classification,

not only permitted the appellant to continue to possess the land but also

granted a superior right, namely, to make constructions as also to grant

lease thereof subject of course to the conditions laid down as noticed

hereinbefore. The principle of possessory title was, thus, completely

overlooked by the High Court.

11.   It is now well settled that in India, nobody can take possession of

an immoveable property except in accordance with law. Respondent was

a licensee under the appellant. He was evicted from the shop which was

allotted in his favour.   If he had encroached upon a portion of the

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Poramboke land, he could have been evicted by the temple on the basis

of its possessory title.

12.    If, thus, the temple was in prior possession of the land which

would be evident from the classification made by the State Government

and recognition of its right thereover, it also had right to initiate

proceedings in a civil court for eviction of a rank trespasser. In a case of

this nature, the court was required to consider as to who was in prior

possession. Only in the event the respondent was in a position to show

that he had a better title, he could continue with the possession. The only

defence taken by him was that the suit land pertains to Survey No.144

and not Survey No.370/1. Such a contention has been negatived by the

trial court as also by the first appellate court. A finding of fact had been

arrived at. Having regard to the concurrent finding of fact as regards the

possession of the parties, vis-‘-vis, their respective title in and over the

suit land. The High Court, while exercising its jurisdiction under Section

100 of the Code of Civil Procedure, was required to formulate a

substantial question of law which might have arisen for its consideration.

No question of law was framed far less any substantial question of law

relating to identification of the property. The High Court, therefore, in

our opinion completely misdirected itself in passing the impugned

judgment.

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13.   The law operating in this connection having been noticed by this

Court in Rame Gowda (D) by Lrs. v. M. Varadappa Naidu (D) by Lrs.

and Anr. [(2004) 1 SCC 769], we need not enter into a deeper probe.

Therein it was held :

            "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 the 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

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           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.

           9. 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."

14.   For the reasons aforementioned, the impugned judgment cannot be

sustained. It is set aside accordingly. Appeals are allowed. No costs.

                                               .............................J.                                                 [S.B. Sinha]

                                               .............................J.                                                 [Lokeshwar Singh Panta]

New Delhi May 14, 2008