Temple, Ratnagiri Vs. V. Kanna Goundar (Dead) by LRS.  INSC 930 (14 May 2008)
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. ...
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 2 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
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
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 :
3 "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.
4 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 5 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
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 6 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.
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 8 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.
[S.B. Sinha] .............................J.