Kaushlendra Singh vs Uma Prakash Brahmin

Sanjay Yadav, J.—Heard on admission. This second appeal at the instance of defendant No. 1 is directed against the judgment and decree dated 29.6.2011 passed by the Additional District Judge, Amarpatan District Satna in Regular Civil Appeal No. 51-A/2009; whereby, the judgment and Decree dated 13.11.2009 passed by Civil Judge Class I, Amarpatan in Civil Suit No. 38-A/2008 has been partly reversed.

That on the basis of long possession over a piece of land ad-measuring 0.64 acre being part of 0.74 of Khasra No. 600 situated at village Mahudar, respondent/plaintiff No. 1 filed a civil suit for the relief that the sale deed executed by respondent/defendant No. 2 in favour of appellant/defendant No. 1 be declared void ab initio and for permanent injunction on the ground that the property was in possession of his ancestors, the respondent/defendant No. 2 is not the owner of suit property and as such the sale effected by him is null and void.

The trial Court though found the plaintiff in possession of the suit property non suited him on the finding that the plaintiff failed to prove being the owner of suit property and that his possession being not adequate, in continuity, publicity and in extent and being not open and hostile ("nec vi, nec clam, nec precario", i.e. peaceful, open and continuous), as he was in possession as an owner. The Appellate Court though affirmed the findings recorded by the trial Court in respect of plaintiffs'' title and possession over suit property, however, found the plaintiff to be in settled possession, accordingly decreed the suit to the extent that plaintiff shall not be dispossessed without taking recourse to law.

It has been held in Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, :-

9.... The possession which a trespasser is entitled to defend against the right 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''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 and concealment by the trespasser. The phrase settled possession does not carry any special charm of 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 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 cultivable 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.

The impugned judgment and decree by the Appellate Court thus when adjudged on the anvil of the evidence on record that the plaintiff is in long possession over the suit property and on the principle of law laid down in Rame Gowda (Supra), no substantial question of law arises for consideration as would warrant any interference. Consequently, the appeal is dismissed at admission stage. Appellant to bear his own costs.