Vs. M. Varadappa Naidu & Anr  Insc 643 (15 December 2003)
Lahoti, B.N. Srikrishna & G.P. Mathur R.C. Lahoti, J.
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.
plaintiff and the defendant 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.
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 there from 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
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.
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 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.
result is violence, chaos and disorder." (at pp. 265, 266).
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 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.
thought has prevailed incessantly, till date, the last and latest Panjwani (2003)
7 SCC 350. In-between, to quote a few out of severals, Jagdish Singh and others
(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 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.
person can be allowed to become a judge in his own cause." In the oft-
(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 '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 Manickavasagam
and Ors. (1974) 1 SCC 48, this Court held that the law forbids forcible
dispossession, even with the best of title. In Krishna Ram 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 cannot be dispossessed
by the owner of the property except by recourse to 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.
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.
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.
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 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
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.
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 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' :
the trespasser must be in actual physical possession of the property over a
sufficiently long period;
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;
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
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.
cases of Munshi Ram and Ors.(supra) and Puran Singh and Ors. (supra), the Court
has approved the statement of law made in Horam 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.
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.
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.
learned counsel for the appellant relied on the Division Bench Development
Authority, Allahabad and Anr. AIR 1995 Allahabad 418 Nagappa Aparaj and Ors. 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 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
is the correct position of law. In Fakirbhai Bhagwandas and Anr. 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.
fault can be found with the judgment and decree appealed against. The appeal is
devoid of any merit and is dismissed.