A RAME GOWDA (D) BY LRS.

v.

M. VARADAPPA NAIDU (D) BY LRS. AND ANR.

DECEMBER 15, 2003

B

[R.C. LAHOTI, B.N. SRIKRISHNA AND G.P. MATHUR, JJ.]

Juriprudence:

Possession

Held-In the absence of proof of better title, possession

C or prior peaceful settled possession is itself evidence of title-&ttled

possession or effective possession would protect a person without title even

as against the true

owner-High Court's order upheld.

The plaintiff-respondent was in possession of a piece of land and

was raising a construction over it which was objected to by,

~be

D defendant-appellant claiming that the said land formed part -;;.~is'

property and was owned by him.

The plaintiff-respondent filed a suit for declaration of.his titl~, as

also his possession,

of the disputed land. The trial. court

foun~ that

·E'

E although the respondent failed to prove his title, he had succee~ed in

proving his possession

overthe suit property. Accordingly, it issued an

injunction restraining the appellant from

interfering \Vith the peaceful

possession

and enjoyment of the suit property by

the respondent. The

: . ' . .

F

G

High Court upheld this order. Hence the appeal.

On behalf of the appellant, it was contended that the suit ought

not to have been decreed merely on the fattttiat the respondent was

in possession

of the suit property.

since he could not prove his title.

Dismissing the appeal, the

Court.

·

HE.LO : 1. Tbe person in peaceful possession is entitled to retain

his possession

and in order to protect such possession he may

e".en.use

reasonable force to keep out a trespasser. A rightful owner who has

been wrongful dispossessed

of land may retake possession if he can do

H so peacefully and without the use of unreasonable force.

If the

850

RAME GOWDA v. M.V. NAIDO 851

tresi;iasser is in settled possession of the property belonging to the A

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 B

restoring him in possession even from the i-;ghtful owner (of course

subject to the law

of limitation), if the latter has dispossessed the prior

possession 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 title unless rebutted.

The

C

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 ofa 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 D

not be called as one acquiesced to by the true owner. (856-A-E)

_ Midnapore Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy,

-_-. (1924) PC 144, Ramesh Chand Ardawatiya v. Anil Panjwani, (2003) 7

-.. sec 350, Lallu Yeshwant Singh v. Rao Jagdish Singh, (1968) 2 SCR 203, E

Nair Service ·society Ltd. v. KC. Alexander, (1968) 3 SCR 1, MC.

_ -Chokalingam v. V. Manickavasagam, [1974) 1 SCC 48, Krishna Ram

--_ Mahale v. Mrs. Shobha Venkat Rao, (1989) 4 SCC 131 and Nagar Palika,

Jind

v. Jagat

Singh, Advocate, (1995) 3 SCC 426, relied on.

Yar Mohammad v. Lakshmi Das, AIR (1959) All. 1, approved.

Salmond on Jurisprudence : 12th Edn., referred to.·

F

2. It is the settled possession or effective possession of a person

without title, which would entitle him to protect his possession even as

G

against the t_rue owner. (856-E-FJ

Munshi Ram v. Delhi Administration, (1968) 2

SCR 455, Puran

Singh v. The State of Punjab, (1975) 4 SCC 518 and Ram Rattan v. State

of U.P., ll9771 l sec 188, relied on. H

852 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A Haram v. Rex, AIR (1949) All. 564, approved.

3.1. In the present case the

Court has found the plaintiff-respondent

as having failed

in,proving his title. Nevertheless, he has been found to

be

in

settle~ possession of the property. Even the defendant-appellant

B · 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

c

D

question of1title 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. [858-C-E)

3.2.

It is not necessary for

the person claiming injunction to prove

his t,itle 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. (859-C-D)

Fakirbhai Bhagwandas v. Magan/al Haribhai, AIR (1951) Born. 380, approved.

Sri Dasnam Naga Sanvasi v. Allahabad Development Authority, AIR

All. 418

and Kallappa Rama Londa v.

Shivappa Nagappa Aparaj, AIR

E (1995) Kar. 238, held not applicable.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7662 of

1997.

From the Judgment and Order dated 6.3.97 of the Kamataka High

F Court in R.F.A. No. 8 of 1991.

D.P. Chaturvedi and S.N. Bhat for the Appellants.

G.V. Chandrashekhar and P.P. Singh for the Respondents.

G The Judgment of the Court was delivered by

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

H suit schedule property by the respondent.

RAME GOWDA v. M.V. NAIDO [LAHOTI, J.] 853

The plaintiff and the defendant

--both have expired. Their LRs are A

on record. For the sake of convenience we are making reference to the

original parties i.e. the plaintiff and the defendant.

The suit prope1ty, a piece

of land, is situated in Arekempanahally,

36th Division.

It appears that the plaintiff and the defendant both claim B

to be owning two adjoining pieces of land.

Thert> :s :-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 C

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 ofland. The D

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

E

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 F

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

succeeCled 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

G

it is, men are tempted to prefer their own selfish and immediate interests H

. 854 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R .

A 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

tantamo~nt 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).

B

"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

C 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

D 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

E 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) arid possessorium (a

possessory suit)." (Salmond, ibid, p.295)

F

The law in India, as it has developed, accords with the jurispnideritial ·

thought as propounded by Salmond. In Midnapur Ziimindary Co. Ltd V;

Kumar Naresh Narayan Roy and Ors., (1924) PC 144, Sir John Edge

.summed up the Indian law by stating that in lridia persons are hot permitted

to take forcible possession; they must obtain such possession as they are

G entitled to through a Court.

The thought has prevailed incessantly, till date, the last andfate~t one

.in the chain of decisions being Ramesh Chand Ardawatiya v. Anil

Panjwani, [2003] 7 SCC 350. In-between, to quote a few out of severals,

H in Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish

RAME GOWDA v. M.V. NAIDO [LAHOTI, J.] 855

Singh and Others, [1968] 2 SCR 203, this Court has held that a landlord A

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

B

the lessee. The court quoted with approval the law as stated by a Full

Bench

of Allahabad High Court in Yar Mohammad v. Lakshmi Das, AIR

(1959) All. 1,4,

"Law respects possession even ifthere 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.

C

No person can be allowed to become a judge in his own cause." In the oft­

quoted case of Nair Service Society Ltd. v. K.C. Alexander and Ors.,

[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 D

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 plaintiffs and thus be able to raise a

E.

presumption prior in time". In MC. Chockalingam and Ors. v,. V.

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

Mahale (dead) by his Lrs.

v. Mrs. Shobha

Venkat Rao, [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 cannot

F

be dispossessed by the owner of the property except by recourse to law.

In

Nagar

Palika, Jind v. Jagat Singh, Advocate, [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 G

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

~ossession of ~he plaintiff and

dispossession by the defendant.

H

856 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A It is thus clear that so far as the lnd.ian 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

ofland

may retake possession if he can do so peacefully

and without the use of

B 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

ofa 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

C restoring him in possession even from the rightful owner (of course subject t.) 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

D 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,

E just entered into would not be called as one acquiesced to by the true owner.

F

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.

v. Delhi Administration, [1968) 2

SCR 455, Puran Singh and Ors. v. The

State

of

Punjab, [1975) 4 SCC 518 and Ram Rattan and Ors. v. State of

Uttar Pradesh, [1977) I SCC 188. The authoritie~ need not be multiplied.

In

Munshi Ram & Ors. 's case (supra), it was held that no one, including

G 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 againstthe true owner. The possession

H which a trespasser is entitled to defend against the rightful owner must be

RAME GOWDA v. M.V. NAIDO [LAHOTI, J.] 857

settled possession, extending over a sufficiently long period

of time and A

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.

B

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 know!-

C

edge 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

th~ instance of the owner will not amount to actual physical possession. D

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;

E

(ii) that the possession must be to the knowledge (either express

or implied) of the

owner or without any attempt at conceal­

ment by the trespasser and which contains an element

of

animus possidendi. The nature of possession of the

tr(!s­

passer would, however, be a matter to be decided on the facts F

and circumstances of each case;

(iii) the process

of

dispssession of the true owner by the

trespasser must be complete and final and must be acqui­

esced 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

G

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 H

A

858 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

the crop grown ~ the trespasser and take forcible posses­

sion.

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

B v. Rex, 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 acquiesceci 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

C 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

D 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

titl~ open and

proceeded to determine the suit on the basis

of possession, protecting the

established possession and restraining the attempted interference therewith.

E 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

F decision in

Sri Dasnam Naga Sanyasi and Anr. v. Allahabad Development

Authority, Allahabad

and Anr., AIR.(1995) Allahabad 418 and a

Single

Judge decision in Ka/Zappa Rama Londa v, Shivappa 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

G was not maintainable, and should ~ave 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

H of ad-interim injunction to the plaintiff on the ground that failure to claim

-

RAME GOWDA v. M.V. NAIDO [LAHOTI, J.] 859

declaration

of

title in the facts of that case spoke against the conduct of A

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 propo­

sition that where the suit for declaration

of title and injunction is

filed and B

the title is not clear, the question of title will have to be kept open without

denying the plaintiffs 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 Fakirhhai Bhagwandas and Anr.

v. Magan/al Haribhai and Anr., AIR (l 95 l) Bombay 380 a Division Bench C

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. W~ respectfully agree with the view D

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 E

·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.

v.s.s. Appeal dismissed.

F