POONA RAM versus MOTI RAM (D) TH. LRS. & ORS. on 29 January 2019

[2019] 1 S.C.R. 671

POONA RAM

v.

MOTI RAM (D) TH. LRS. & ORS.

(Civil Appeal No. 4527 of 2009)

JANUARY 29, 2019

[N. V. RAMANA ANDMOHAN M. SHANTANAGOUDAR, JJ.]

Suit:

Suit claiming possessory title – Based on settled possessionfor a number of years – Alleging that he was wrongfully dispossessedby defendants – No document to prove his possession – Defendantsrelied on two sale deeds (one executed by original owner to thepredecessor-in-interest of defendant No.1 and another bypredecessor-in-interest of defendant No.1 to defendant No.1) – Trialcourt decreed the suit – First appellate court dismissed the suit onthe ground that the defendants had proved their title and possessionover the suit property – High Court, in second appeal, reversingorder of first appellate court, decreed the suit – Review petitionalso dismissed – On appeal, held: In order to prove possessorytitle, settled/established possession is required to be proved – Settledpossession means possession which has existed for a sufficientlylong period of time, and has been acquiesced to by the true owner– Settled possession must be effective, undisturbed and to theknowledge of the owner or without any attempt at concealment bythe trespasser – The possession should contain an element of animuspossidendi – Occupation of the property as an agent or a servant atthe instance of owner will not amount to actual legal possession –The nature of possession of trespasser is to be decided based onthe facts and circumstances of each case – A casual act of possessionor stray act of trespass, or a possession which has not matured intosettled possession, can be obstructed or removed by true ownereven by using necessary force – In the present case, no material isfound to show that the plaintiff was in actual possession much lesscontinuous possession for a long period which could be calledsettled possession – Defendant No.1 has proved his title andpossession since the date of his purchase of the property – High

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ACourt was not justified in interfering with the finding of facts recordedby first appellate court – Suit stands dismissed – Possession.Allowing the appeal, the Court HELD: 1. The First Appellate Court being the final courtof fact, on due appreciation of the entire material on record, gaveBa definite finding that the Trial Court was not justified in decreeingthe suit, and observed that predecessor-in-interest of thedefendants was in possession of the property in question evenprior to 1966, and had sold the same through registered saledeed in June 1966 vide Ex. A-2. This sale deed shows theCmeasurement of the land, which corresponds to the plots inquestion approximately. The judgment of the First Appellate Courtreveals that the Municipality had let out only three plots to theJagirdar (original owner), and those three plots togethermeasured 32 x 66 hands (unit of measurement). Thus, each plotmeasured 32 x 22 hands. These were numbered as Plot No. 4,DPlot No. 5 and Plot No. 7. The disputed site is Plot No. 7. It isalso relevant that sanction for constructing the house was givento predecessor-in-interest of defendants in the year 1957.Obviously, such sanction would have been accorded only on thebasis of title and possession of the property. The official recordE(survey map), Ex.14, which relates to the plot in question, i.e.,Plot No.7, reveals that it was owned by Defendant No.1.[Paras 6, 7][676-G-H; 677-A-B]

2. A person who asserts possessory title over a particularproperty will have to show that he is under settled or establishedFpossession of the said property. But merely stray or intermittentacts of trespass do not give such a right against the true owner.Settled possession means such possession over the propertywhich has existed for a sufficiently long period of time, and hasbeen acquiesced to by the true owner. A casual act of possessiondoes not have the effect of interrupting the possession of theGrightful owner. A stray act of trespass, or a possession which hasnot matured into settled possession, can be obstructed orremoved by the true owner even by using necessary force.Settled possession must be (i) effective, (ii) undisturbed, and (iii)to the knowledge of the owner or without any attempt atHconcealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a propertyby a person as an agent or a servant acting at the instance of theowner will not amount to actual legal possession. The possessionshould contain an element of animus possidendi. The nature ofpossession of the trespasser is to be decided based on the factsand circumstances of each case. [Para 13][679-G-H; 680-A-B]

3. In order to prove possession of the property, the plaintiffrelied upon the rent note Ex. 1, which shows that the plot inquestion was let out by the plaintiff in the year 1967. On12.05.1967, a fire broke out and the entire fodder stored on theplot got burnt. Thereafter, the plot was kept vacant. DW-7, whohas been referred to in order to establish spreading of the fire,stated that the fire started due to sparks coming from a railwayengine. But there was no railway line adjacent to the disputedland which could have caused a fire. Even otherwise, the rentnote Ex. 1 does not refer to the plot in question, and its boundarieshave also not been mentioned. Merely on doubtful material andcursory evidence, it cannot be held that the plaintiff was ever inpossession of the property, and that too in settled possession.[Para 15][680-D-F]

4. No material is found to show that the plaintiff/RespondentNo. 1 was in actual possession, much less continuous possession,of the property for a longer period which may be called settledpossession or established possession. Mere casual possession,that too relying on a motor vehicle body lying on a part of theproperty, would not prove settled possession of the plaintiff. [Para16][680-G-H; 681-A]

5. The plaintiff has to prove his case to the satisfaction ofthe Court. He cannot succeed on the weakness of the case of thedefendant. Even otherwise, there is no confusion at all regardingthe identity of the property in question and on the basis of materialon record, the First Appellate Court has correctly ruled that theappellant/Defendant No. 1 has proved his title and possessionover the suit property since the date of his purchase of theproperty. Prior to the purchase, his predecessor-in-interest wasin possession of the same. [Para 17][681-B]

6. Generally, it is not open to the High Court to interferewith the findings of fact recorded by the First Appellate Court AB

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Awhen such findings are based on the evidence on record, and arenot perverse or against the material on record.The High Courtwas not justified in interfering with the judgment of the FirstAppellate Court, which has come down very heavily on theprocedure adopted by the trial Judge in deciding the matter, moreparticularly when no fault can be found on facts with the judgmentBof the First Appellate Court. [Para 18][681-C-E]

7. The conclusion arrived at by the High Court and thereasons assigned for the same are not correct inasmuch as thereis absolutely no material in favour of the case of the plaintiff toshow possessory title. In order to claim possessory title, theCplaintiff will have to prove his own case, and also will have toshow that he has better title than any other person. Since thereis no documentary proof that the plaintiff was in possession ofthe suit property, that too for a long period, he cannot be allowedto succeed based on minor discrepancies in the evidence of theDdefendants. [Para 19][681-E-F]

Midnapur Zamindary Co. Ltd. v. Naresh Narayan RoyAIR 1924 PC 144; NairService Society Ltd. v. K.C.Alexander AIR 1968 SC 1165; Rame Gowda (dead)by Lrs. v. M. Varadappa Naidu (dead) by Lrs. andEanother (2004) 1 SCC 769 : [2003] 6 Suppl. SCR 850– referred to.

Salmond on Jurisprudence (12 Edn. at paras 59-60) –referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4527

Gof 2009.

From the Judgment and Order dated 28.08.2006 and 19.10.2006by the High Court for Rajasthan at Jodhpur in Civil Second Appeal No.97 of 1984 and Civil Review Petition No. 18 of 2006.

Ms. Christi Jain, Puneet Jain, Ms. Ankita Gupta, Harsh Jain,Ms. Pratibha Jain, Advs. for the Appellant.

Pallav Shishodia, Sr. Adv., Ms. Madhurima Tatia, Ms. K. V.Bharathi Upadhyaya, Advs. for the Respondents.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J. 1. The judgmentdated 28.08.2006 passed by the High Court of Judicature of Rajasthanat Jodhpur in Civil Second Appeal No. 97 of 1984and the concurrentjudgment dated 10.10.2006 in Civil Review Petition No. 18 of 2006,dismissing the same, arecalled in question in this appeal by theunsuccessful defendants.

2. The brief facts leading to this appeal are as under:

A suit came to be filed for declaration of title and for possessionby Respondent No. 1 herein. Undisputedly, the plaintiff Moti Ram hadno document of title to prove his possession, but claimed possessory titlebased on prior possession for a number of years. However, accordingto the plaintiff, he had been wrongly dispossessed by defendants on30.04.1972, whichwas within the 12 years preceding the filing of thepresent suit. The Trial Court decreed the suit and the First AppellateCourt reversed the findings of the Trial Court. The First Appellate Courtdismissed the said suit on the ground that the defendants had provedtheir title and possession over the suit property.

3. As mentioned supra, the plaintiff did not have any title deedwithrespect to the suit property. He based his claim mainly on his allegedlong possession over the property, and claimed that there was nobodywith better titleover it than him. Per contra, the defendantsrelied on twosale deeds, viz., Ex. A-6 dated 06.02.1956,executed by the original ownerKhoom Singh in favour of Purkha Ram, and Ex. A-2 dated 21.06.1966,executed by Purkha Ram in favour of the appellant/Defendant No. 1. Itwas also not disputed that the plaintiff did not have possession as on thedate of filing of the suit, inasmuch as he has alleged that he was wronglydispossessed by the defendant on 30.04.1972, prior to filing the suit.

4. The only questions to be decided in this appeal are whether theplaintiff had better title over the suit property and whether hewas insettledpossession of the property, which required dispossession in accordancewith law.

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A5. Ms. Christi Jain, learned counsel appearing for the appellant/Defendant No. 1, taking us through the material on record, contendsthat there is nothing on record to show that the plaintiff was in possessionof the property at any point of time, much less for a longer time lawfully.There is no material to show that the plaintiff has possessory title overthe suit property. Additionally, she argues that the sale deeds mentionedBsupra relied upon by the defendants would clearly reveal that thedefendants were in possession of the property as owner thereof, fromthe date of purchase of the suit property.

6. Undisputedly and as duly admitted by both parties, the propertyin question originally belonged toJagirdar Khoom Singh of Barmer. TheCproperty in question is part of a larger property under the Jagirdari system,afew parts of which were rented out or sold. After the system of Jagirdariwas abolished, these jagirs were resumed in the year 1955-56. While afew persons continued in illegal possession,others had purchased partsof the land from theJagirdar, and the remaining landvested in the State DGovernment and municipalities. After the resumption of the jagir,it seemsthat the Barmer Municipality established a planned and well-managedcolony named Nehru Nagar on the said land.Ex.12, Ex. 13 and Ex. 14are the survey maps of the Municipality. A perusal of Ex. 12 (firstsurvey) reveals that Moti Ram was in possession of the land, the plot tothe east of which waspossessed by Nawala Harijanand in the east ofENawala Harijan’s plot, possession of Purkha Ram (to recall, predecessor-in-interest of the defendants) on the site has been indicated.Further, thepossession of Purkha Ramhas also been indicated on a plot to the southof the land duly possessed by Moti Ram. Thus, it is clear that the plots ofland owned by Khoom Singh, in possession of these persons, were notFuniformly situated. However, afterthe Municipality took over possession,it seems thatorderly formation of the plots was undertaken. Though therewas some confusion raised by the plaintiff with regard to the boundariesof the property in question, the First Appellate Court being the final courtof fact, on due appreciation of the entire material on record,gave a definitefinding that the Trial Court was not justified in decreeing the suit, andGobserved that Purkha Ram was in possession of the property in questioneven prior to 1966, andhad sold the same through registered sale deed inJune 1966 vide Ex. A-2. This sale deed shows the measurement of theland, which corresponds to the plots in question approximately. Thejudgment of the First Appellate Court reveals that the Municipality hadH

let out only three plots to the Jagirdar, and those three plots togethermeasured 32 x 66 hands (unit of measurement). Thus, each plot measured32 x 22 hands. These were numbered as Plot No. 4, Plot No. 5 and PlotNo. 7. The disputed site is PlotNo.7.

7. The official record (survey map), Ex. 14,which relates to theplotin question, i.e., Plot No. 7,reveals that it was owned by Poona Ram,who is Defendant No. 1 and the appellant herein. It is also relevant tonote that sanction for constructingthe house was given to Purkha Ramin the year 1957. Obviously,such sanction would have been accordedonly on the basis of title and possession of the property.

8. Section 64 of the Limitation Act, 1963 contemplates a suit forpossession of immovable property based on previous possession and noton title, if brought within 12 years from the date of dispossession. Sucha suit is known in law as a suit based on possessory title as distinguishablefrom proprietary title. It cannot be disputed and is by now well settledthat ‘settled possession’ or effective possession of a person without titleentitles him to protect his possession as if he were a true owner.

9. The law in India, as it has developed, accords with jurisprudentialthought as propounded by luminaries like Salmond. SalmondonJurisprudence (12 Edn. at paras 59-60) states:- “These two concepts of ownership and possession, therefore, maybe used to distinguish between the de facto possessor of an objectand its de jure owner, between the man who actually has it andthe man who ought to have it. They serve also to contract theposition of one whose rights are ultimate, permanent and residualwith that of one whose rights are only of a temporary nature.

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In English law possession is a good title of right against anyonewho cannot show a better. A wrongful possessor has the rights ofan owner with respect to all persons except earlier possessorsand except the true owner himself. Many other legal systems,however, go much further than this, and treat possession as aprovisional or temporary title even against the true owner himself.Even a wrongdoer, who is deprived of his possession, can recoverit from any person whatever, simply on the ground of hispossession. Even the true owner, who takes his own, may be A

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Aforced in this way to restore it to the wrongdoer, and will not bepermitted to set up his own superior title to it. He must first giveup possession, and then proceed in due course of law for therecovery of the thing on the ground of his ownership. The intentionof the law is that every possessor shall be entitled to retain andrecover his possession, until deprived of it by a judgment accordingBto law.

Legal remedies thus appointed for the protection of possessioneven against ownership are called possessory, while thoseavailable for the protection of ownership itself may be distinguishedas proprietary. In the modern and medieval civil law the distinctionCis expressed by the contrasted terms petitorium (a proprietarysuit) and possessorium (a possessory suit).”

10. As far back as 1924, in the case of Midnapur ZamindaryCo. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judgeobserved that in India, persons are not permitted to take forcibleDpossession; they must obtain such possession as they are entitled tothrough a court. Later, in the case of Nair Service Society Ltd. v.K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when thefacts disclose no title in either party, possession alone decides. It wasfurther held that if Section 9 of the Specific Relief Act, 1877E(corresponding to the present Section 6) is employed, the plaintiff neednot prove title and the title of the defendant does not avail him. When,however, the period of six months has passed, questions of title can beraised by the defendant, and if he does so the plaintiff must establish abetter title or fail. In other words, such a right is only restricted topossession in a suit under Section 9 of the Specific Relief ActF(corresponding to the present Section 6)but does not bar a suit on priorpossession within 12 years from the date of dispossession, and title neednot be proved unless the defendant can provide one.

11. It was also observed by this Court in Nair Service SocietyLtd (supra) that a person in possession of land in assumed character ofGowner and exercising peaceably the ordinary rights of ownership has aperfectly good title against the entire world except the rightful owner. Insuch a case, the defendant must show in himself or his predecessor avalid legal title and probably a possession prior to the plaintiff’s, and thusbe able to raise a presumption prior in time.

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12. In the case of Rame Gowda (dead) by Lrs. v. M. VaradappaNaidu (dead) by Lrs. and another, (2004) 1 SCC 769, a three-JudgeBench of this Court, while discussing the Indian law on the subject,observed as under:- “8. It is thus clear that so far as the Indian law is concerned theperson in peaceful possession is entitled to retain his possessionand in order to protect such possession he may even use reasonableforce to keep out a trespasser. A rightful owner who has beenwrongfully dispossessed of land may retake possession if he cando so peacefully and without the use of unreasonable force. If thetrespasser is in settled possession of the property belonging to therightful owner, the rightful owner shall have to take recourse tolaw; he cannot take the law in his own hands and evict thetrespasser or interfere with his possession. The law will come tothe aid of a person in peaceful and settled possession by injunctingeven a rightful owner from using force or taking law in his ownhands, and also by restoring him in possession even from the rightfulowner (of course subject to the law of limitation), if the latter hasdispossessed the prior possessor by use of force. In the absenceof proof of better title, possession or prior peaceful settledpossession is itself evidence of title. Law presumes the possessionto go with the title unless rebutted. The owner of any propertymay prevent even by using reasonable force a trespasser from anattempted trespass, when it is in the process of being committed,or is of a flimsy character, or recurring, intermittent, stray or casualin nature, or has just been committed, while the rightful owner didnot have enough time to have recourse to law. In the last of thecases, the possession of the trespasser, just entered into wouldnot be called as one acquiesced to by the true owner.”

13. The crux of the matter is that a person who asserts possessorytitle over a particular property will have to show that he is under settledor established possession of the said property. But merely stray orintermittent acts of trespass do not give such a right against the trueowner. Settled possession means such possession over the propertywhich has existed for a sufficiently long period of time, and has beenacquiesced to by the true owner. A casual act of possession does nothave the effect of interrupting the possession of the rightful owner. Astray act of trespass, or a possession which has not matured into settled A

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Apossession, can be obstructed or removed by the true owner even byusing necessary force. Settled possession must be (i) effective, (ii)undisturbed, and (iii) to the knowledge of the owner or without anyattempt at concealment by the trespasser. There cannot be a straitjacketformula to determine settled possession.Occupation of a property by aperson as an agent or a servant acting at the instance of the owner willBnot amount to actual legal possession. The possession should contain anelement of animus possidendi. The nature of possession of thetrespasser is to be decided based on the facts and circumstances ofeach case.

14. As mentioned supra, Purkha Ram had purchased three plotsCfrom JagirdarKhoom Singh. In sale deed Ex. A-6, three plots have beenmentioned as plots of three houses. One of these,being Plot No. 7,wassold by Purkha Ram to the appellant, one plot being Plot No. 4 was soldto Teja Ram and the third plot being Plot No. 5 was retained by PurkhaRam.D

15. In order to prove possession of the property, the plaintiff reliedupon the rent note Ex. 1, which shows that the plot in question was letout by the plaintiff to one Joga Ram in the year 1967. On 12.05.1967, afire broke out and the entire fodder stored on the plot got burnt. Thereafter,the plot was kept vacant. DW-7, whohas been referred to in order toEestablish spreading of the fire,stated that the fire started due to sparkscoming from a railway engine. But there was no railway line adjacent tothe disputed land which could have caused a fire. Even otherwise, therent note Ex. 1 does not refer to the plot in question, and its boundarieshave also not been mentioned. Merely on doubtful material and cursoryevidence, it cannot be held that the plaintiff was ever in possession ofFthe property, and that too in settled possession.

16. The plaintiff/Respondent No. 1 makes much of the old bodyof a motor vehicle belonging to him lying on the property. Ex. 2 clearlyreveals that one part of the motor vehicle was lying on the disputedproperty and another part was lying on the plot of the plaintiff. The saidGbody of the motor vehicle is about 3 to 4 feet in length only and the samewas lying on the boundary of the disputed property. But the plaintiff/Respondent No. 1 claims possession of the entire plot based on suchfact. Absolutely no material is found to show that the plaintiff/RespondentNo. 1 was in actual possession, much less continuous possession, of theHproperty for a longer period which may be called settled possession or established possession. As mentioned supra, mere casual possession,that too relying on a motor vehicle body lying on a part of the property,would not prove settled possession of the plaintiff.

17. The plaintiff has to prove his case to the satisfaction of theCourt. He cannot succeed on the weakness of the case of the defendant.Even otherwise, there is no confusion at all regarding the identity of theproperty in question and on the basis of material on record, the FirstAppellate Court has correctly ruled that the appellant/Defendant No. 1has proved his title and possession over the suit property since the dateof his purchase of the property. Prior to the purchase, his predecessor-in-interest was in possession of the same.

18. Having regard to the position of law and facts of the case, weare of the considered opinion that the High Court was not justified ininterfering with the judgment of the First Appellate Court, which hascome down very heavily on the procedure adopted by the trial Judge indeciding the matter, more particularly when no fault can be found onfactswith the judgment of the First Appellate Court.

Generally, it is not open to the High Court to interfere with thefindings of fact recorded by the First Appellate Court when such findingsare based on the evidence on record, and arenot perverse or against thematerial on record.

19. The conclusion arrived at by the High Court and the reasonsassigned for the same are not correct inasmuch as there is absolutely nomaterial in favour of the case of the plaintiff to show possessory title. Inorder to claim possessory title, the plaintiff will have to prove his owncase, and also will have to show that he has better title than any otherperson. Since there is no documentary proof that the plaintiff was inpossession of the suit property, that too for a long period, he cannot beallowed to succeed based on minor discrepancies in the evidence of thedefendants. Accordingly, the appeal succeeds and is allowed.

20. The impugned judgment of the High Court dated 28.08.2006and its review stands set aside and the judgment of the First AppellateCourt is restored. Consequently, suit stands dismissed.