MANU/SC/1044/2003

Equivalent/Neutral Citation: 2004(15)AIC 738, AIR2004SC 4609, 2004(2)ALD31(SC ), 2004 (54) ALR 725, 2004 (1) CCC 218 ,
(SC Suppl)2004(2)C HN33, 2003 INSC 718, 2004(1)MPJR(SC )366, 2004(II)OLR145, 2004(2)PLJR36, 2004(1)RC R(C ivil)519, 2003(10)SC ALE950,
(2004)1SC C 769, [2003]Supp6SC R850

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7662 of 2003
Decided On: 15.12.2003
Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Ors.
Hon'ble Judges/Coram:
R.C. Lahoti, B.N. Srikrishna and G.P. Mathur, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: D.P. Chaturvedi and S.N. Bhat, Advs
For Respondents/Defendant: G.V. Chandrashekar and P.P. Singh, Advs.
Case Note:
Property - Person in peaceful possession is entitled to retain his possession
and to protect such possession may even use reasonable force to keep out the
trespasser - A rightful owner who had been wrongfully dispossessed may take
possession back peacefully and without the use of unreasonable force -
Plaintiff has not been able to prove his title but has been found to be in
settled possession of the property - Appeal dismissed
JUDGMENT
R.C. Lahoti, J.
1. 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 suit schedule property by the respondent.
2. The 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.
3. The suit property, a piece of land, is situated in Arckempanahally, 36 th 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
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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 enjoyment of the plaintiff-respondent over the suit property.
4. 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 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.
5. 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 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. The result is violence, chaos
and disorder." (at pp. 265, 266).
6. "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 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).
7 . "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)
8 . The law in India, as it has developed, accords with the jurisprudential thought as
propounded by Salmond. In Midnapur Zamindary Co. Ltd. v. Kumar Naresh
Narayan Roy and Ors. - MANU/PR/0162/1924, 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.
9. The thought has prevailed incessantly till date, the last and latest one in the chain of
decisions being Ramesh Chand Ardawatiya v. Anil Panjwani -
MANU/SC/0387/2003 : [2003]3SCR1149 . In-between, to quote a few out of severals,
i n Lallu Yeshwant Singh (dead) by his legal representative v. Rao Jagdish
Singh and Ors. - MANU/SC/0425/1967 : [1968]2SCR203 , this Court had held that a

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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 Bench of Allahabad High Court in Yar Mohammad v. Lakshmi Das (
MANU/UP/0001/1959 : AIR1959All1 , "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. 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. MANU/SC/0144/1968 :
[1968]3SCR163 , 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
'possession contra omnes valet praeter eur cui ius sir possessionis (He that hath
possession hath right against all but him that hath the very right)' and said, "A
defendant in such a case much 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 presumption
prior in time". In M.C. Chockalingam and Ors. v. V. Manickavasagam and Ors. -
MANU/SC/0338/1973 : [1974]2SCR143 , 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 - MANU/SC/0278/1989 : AIR1989SC2097 , 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 law. In Nagar Palika, Jind v. Jagat Singh, Advocate
- MANU/SC/0260/1995 : [1995]3SCR9 , 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 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.
10. 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 be 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 the cases, the possession of the trespasser,
just entered into would not be called as one acquiesced to by the true owner.
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11. 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
t o Munshi Ram and Ors. v. Delhi Administration - MANU/SC/0072/1967 :
1968CriL J806 , Puran Singh and Ors. v. The State of Punjab -
MANU/SC/0184/1975 : AIR1975SC1674 and Ram Rattan and Ors. v. State of Uttar
Pradesh - MANU/SC/0160/1976 : 1977CriL J433 . The 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 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. 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':
i) that the trespasser must be in actual physical possession of the property over
a sufficiently z long period;
ii) that the possession must be to the knowledge (either express of 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;
iii) the 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
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 the crop grown
by the trespasser and take forcible possession.
12. 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 IIoram v. Rex -
MANU/UP/0001/1947 : AIR1949All564 , wherein a distinction was drawn between the

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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 later, may be dispossessed by the true owner
only by having recourse to the due process of law for re-acquiring possession over his
property.
13. 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 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. 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.
14. The learned counsel for the appellant relied on the Division Bench decision in Sri
Dasnam Naga Sanyasi and Anr. v. Allahabad Development Authority,
Allahabad and Anr. - MANU/UP/0095/1995 : AIR1995All418 and a Single Judge
decision in Kallappa Rama Londa v. Shivappa Nagappa Aparaj and Ors. -
MANU/KA/0042/1995 : AIR1995Kant238 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 suit. That is the correct position of law. In Fakirbhai
Bhagwandas and Anr. v. Maganlal Haribhai and Anr. - MANU/MH/0115/1951 :
AIR1951Bom380 a Division 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 of against any of the
contending parties.
15. No fault can be found with the judgment and decree appealed against. The appeal
is devoid of any merit and is dismissed.

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(2. The 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. 3. The suit property, a piece of land, is situated in Arckempanahally,
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 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 enjoyment of the plaintiff-respondent
over the suit property.)
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