REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4527 OF 2009

POONA RAM ...APPELLANT

VERSUS

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

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. The judgment dated 28.08.2006 passed by the High Court

of Judicature of Rajasthan at Jodhpur in Civil Second Appeal No.

97 of  1984 and the concurrent  judgment dated 10.10.2006 in

Civil Review Petition No. 18 of 2006, dismissing the same, are

called in question in this appeal by the unsuccessful defendants.

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

 A suit came to be filed for declaration of title and for

possession by Respondent No. 1 herein. Undisputedly, the

plaintiff   Moti Ram had no document of title to prove his

possession, but claimed possessory title based on prior

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possession  for  a number of  years.  However,  according  to the

plaintiff,  he  had  been  wrongly  dispossessed  by  defendants  on

30.04.1972,   which was within the 12 years preceding the filing

of the present suit. The Trial Court decreed the suit and the First

Appellate Court reversed the findings of the Trial Court. The First

Appellate Court dismissed the said suit on the ground that the

defendants had proved their  title and possession over the suit

property.

3 As mentioned supra, the plaintiff did not have any title deed

with respect to the suit property. He based his claim mainly on

his alleged long possession over the property, and claimed that

there was nobody with better title over it than him. Per contra,

the defendants relied on two sale deeds, viz., Ex. A­6 dated

06.02.1956, executed by the original owner Khoom  Singh in

favour of Purkha Ram, and Ex. A­2 dated 21.06.1966, executed

by Purkha Ram in favour of the appellant/Defendant No. 1. It

was also not disputed that the plaintiff did not have possession

as on the date of filing of the suit, inasmuch as he has alleged

that he was wrongly dispossessed by the defendant on

30.04.1972, prior to filing the suit.

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4. The only questions to be decided in this appeal are whether

the plaintiff had better title over the suit property and whether he

was in settled possession of the property, which required

dispossession in accordance with law.   

5. Ms. Christi Jain, learned counsel appearing for the

appellant/Defendant No.  1, taking us  through the material  on

record, contends that there is nothing on record to show that the

plaintiff was in possession of 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 over the suit property.

Additionally, she  argues that the  sale  deeds  mentioned  supra

relied upon by the defendants would clearly reveal that the

defendants were in possession of the property as owner thereof,

from the date of purchase of the suit property.

6. Undisputedly and as  duly admitted by both  parties, the

property in question originally belonged to Jagirdar Khoom Singh

of Barmer.  The property in question is part of a larger property

under the Jagirdari system, a few parts of which were rented out

or sold. After the system of Jagirdari was abolished, these jagirs

were resumed in the year 1955­56. While a few persons

continued  in  illegal  possession,  others had purchased parts of

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the land from the Jagirdar, and the remaining land vested in the

State Government and municipalities. After the resumption of the

jagir, it seems that the Barmer Municipality established a

planned and well­managed colony named Nehru Nagar on the

said land.  Ex.12, Ex. 13 and Ex. 14 are the survey maps of the

Municipality.  A perusal of Ex. 12 (first survey) reveals that Moti

Ram was in possession of the land, the plot to the east of which

was  possessed  by  Nawala  Harijan  and in the east of  Nawala

Harijan’s plot, possession of  Purkha Ram  (to recall, predecessor­

in­interest of the  defendants) on the site has been indicated.

Further, the possession of Purkha Ram has also been indicated

on a plot to the south of the land duly possessed by Moti Ram.

Thus, it is clear that the plots of land owned by Khoom Singh, in

possession of these persons, were not uniformly situated.

However,  after the Municipality took over possession, it  seems

that orderly formation of the plots was undertaken. Though there

was some confusion raised by  the  plaintiff  with regard  to the

boundaries of the property in question, the First Appellate Court

being the final court of  fact,  on due appreciation of  the entire

material on record, gave a definite finding that the Trial Court

was not justified in decreeing the suit, and observed that Purkha

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Ram was in possession of the property in question even prior to

1966,  and had sold  the  same through registered sale  deed  in

June 1966 vide Ex. A­2. This sale deed shows the measurement

of the land, which corresponds to the plots in question

approximately. The judgment of the First Appellate Court reveals

that the Municipality had let out only three plots to the Jagirdar,

and those three plots together measured                 32 x 66

hands (unit of measurement). Thus, each plot measured

32 x 22 hands.   These were numbered as Plot No. 4, Plot No. 5

and Plot No. 7. The disputed site is Plot No. 7.  

7. The official record (survey map), Ex. 14, which relates to the

plot  in 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 to note that sanction for constructing the house

was given to Purkha Ram in  the year 1957.   Obviously,  such

sanction would have been accorded only on the basis of title and

possession of the property.  

8. Section 64 of the Limitation Act, 1963 contemplates a suit

for possession of immovable property based on previous

possession and not on title, if brought within 12 years from the

date of dispossession.   Such a suit is known in law as a suit

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based on possessory title as distinguishable from proprietary

title.   It cannot be disputed and is by  now  well settled that

‘settled possession’  or  effective  possession of  a  person without

title entitles him to protect his possession as if he were a true

owner.

9. The law in India, as it has developed, accords with

jurisprudential thought as propounded by luminaries like

Salmond.  Salmond on  Jurisprudence  (12 Edn.  at  paras  59­60)

states:­

"These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto  possessor of an object and its  de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.  

x x x x x

In English  law possession  is a good title of  right against any one 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

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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.  

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)."  

10. As far back as 1924, in the case of  Midnapur Zamindary

Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned

Judge observed that in India, persons are not permitted to take

forcible possession; they must obtain such possession as they are

entitled to through a court.   Later, in the case of  Nair Service

Society Ltd.  v. K.C. Alexander, AIR 1968 SC 1165, this Court

ruled that when the facts disclose no title in either party,

possession alone decides.  It was further held that if Section 9 of

the Specific Relief Act, 1877 (corresponding to the present Section

6) is employed, the plaintiff need not prove title and the title of the

defendant does not avail him. When, however, the period of six

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months has passed, questions of title can be raised by the

defendant, and if he does so the plaintiff must establish a better

title  or  fail.   In other words,  such a right  is  only restricted to

possession  in a suit  under Section 9 of the Specific  Relief  Act

(corresponding to the present Section 6) but does not bar a suit

on prior possession within 12 years from the date of

dispossession, and title need not be proved unless the defendant

can provide one.  

11. It was also observed by this Court in Nair Service Society

Ltd  (supra) 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 the entire  world

except the rightful  owner. In such a case,  the defendant must

show in himself or his predecessor a valid legal title and probably

a possession prior to the plaintiff’s, and thus be able to raise a

presumption prior in time.  

12. In the case of  Rame Gowda (dead) by Lrs.  v.   M.

Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC

769,  a three­Judge  Bench of this  Court,  while  discussing the

Indian law on the subject, observed as under:­

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“8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake  possession  if  he  can do  so  peacefully and without  the  use of  unreasonable force. If the trespasser  is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking 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.”

13. The crux of the matter is that a person who asserts

possessory title over a particular property will have to show that

he is under settled or established possession of the said property.

But merely stray or intermittent acts of trespass do not give such

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a right against the true owner.   Settled possession means such

possession over the property which has existed for a sufficiently

long  period of time, and  has been  acquiesced to by the true

owner.   A casual act of  possession does not have the effect of

interrupting the possession of the rightful owner.   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.   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. There cannot be a

straitjacket formula to determine settled possession. Occupation

of a property by a person as an agent or a servant acting at the

instance of the owner will not amount to actual legal possession.

The possession should contain an element of animus possidendi.

The nature of possession of the trespasser is to be decided based

on the facts and circumstances of each case.  

14. As  mentioned supra, Purkha Ram had purchased three

plots from Jagirdar Khoom Singh.   In sale deed Ex. A­6, three

plots have been mentioned as plots of three houses. One of these,

being Plot No. 7, was sold by Purkha Ram to the appellant, one

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plot being Plot No.  4 was sold to Teja Ram and the third plot

being Plot No. 5 was retained by Purkha Ram.   

15. In order to  prove possession of the  property, the plaintiff

relied upon the rent note  Ex.  1,  which shows that the plot in

question was let out by the plaintiff to one Joga Ram in the year

1967.  On  12.05.1967, a fire broke out and the entire fodder

stored on the plot got burnt. Thereafter, the plot was kept vacant.

DW­7, who has been referred to in order to establish spreading of

the fire, stated that the fire started due to sparks coming from a

railway  engine.  But there  was  no railway line  adjacent to the

disputed land which could have caused a fire.   Even otherwise,

the rent note Ex. 1 does not refer to the plot in question, and its

boundaries have also not been mentioned.   Merely on doubtful

material and cursory evidence, it cannot be held that the plaintiff

was ever in possession of the property, and that too in settled

possession.

16. The plaintiff/Respondent No. 1 makes much of the old body

of a motor vehicle belonging to him lying on the property. Ex. 2

clearly reveals that one part of the motor vehicle was lying on the

disputed property and another part was lying on the plot of the

plaintiff.  The said body of the motor vehicle is about 3 to 4 feet in

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length only and the same  was lying on the boundary of the

disputed  property.  But the  plaintiff/Respondent  No.  1 claims

possession of the entire plot based on such fact. Absolutely no

material is found to show that the plaintiff/Respondent No. 1 was

in actual  possession,  much  less continuous possession,  of the

property 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 the

Court.  He cannot succeed on the weakness of the case of the

defendant.   Even otherwise, there is no confusion at all regarding

the identity of the property in question and on the basis of

material on record, the First Appellate Court has correctly ruled

that the appellant/Defendant No. 1 has proved his title and

possession over the suit property since the date of his purchase of

the property.   Prior to the purchase, his predecessor­in­interest

was in possession of the same.

18. Having regard to the position of law and facts of the case,

we are of the considered opinion that the High Court was not

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justified in interfering with the judgment of the First Appellate

Court, which has come down very heavily on the procedure

adopted by the trial Judge in deciding the matter, more

particularly when no fault can be found on facts with the

judgment of the First Appellate Court.   

Generally, it is not open to the High Court to interfere with

the findings of fact recorded by the First Appellate Court when

such findings are based on the evidence on record, and are not

perverse or against the material on record.

19. The conclusion arrived at by the High Court and the

reasons assigned for the same are not correct inasmuch as there

is absolutely no material in favour of the case of the plaintiff to

show  possessory title. In order to claim possessory title, the

plaintiff  will  have to prove his own case, and also will  have to

show that he has better title than any other person. Since there

is no documentary proof that the plaintiff was in possession of

the suit property, that too for a long period, he cannot be allowed

to succeed based on minor discrepancies in the evidence of the

defendants.  Accordingly, the appeal succeeds and is allowed.

20. The impugned judgment of the High Court dated

28.08.2006 and its review stands set aside and the judgment of

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the First Appellate Court is restored. Consequently, suit stands

dismissed.  

………………………………..J. [ N.V. Ramana]

       ………………………………..J.     [Mohan M. Shantanagoudar]    

New Delhi; January 29, 2019.

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