RAME GOWDA (D) BY LRS.versusM. VARADAPPA NAIDU (D) BY LRS. AND ANR.

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'
                                                                           ·E'
    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   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
    High Court upheld this order. Hence the appeal.
F        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. ·
G
         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.
                                                                            F
       Yar Mohammad v. Lakshmi Das, AIR (1959) All. 1, approved.

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

       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
    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)
c
           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)
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 plaintiffand 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.
                                                                                  G
       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 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.
        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
F 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
                                                                                G
         (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 H
    858                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A                  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.
                                                                                    F
     v.s.s.                                                   Appeal dismissed.




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