Sewa Singh Etc. vs Kirpal Singh

V.K. Jhanji, J.—This is defendants'' second appeal directed against the judgment and decree of the Courts below whereby suit of the plaintiff for possession of the land in dispute has been decreed.

In brief, the facts are that Dharamshala Killawali (Gurudwara) is entered in the revenue record as owner of the property in dispute. Gurdial Singh, i.e. father of the plaintiff was the Manager (Mohtmim) of the Dharamshala. Gurdial Singh died on 8.10.1970. As per case set out by the plaintiff, Gurdial Singh during his life time appointed plaintiff as his Chela. Plaintiff averred that according to the custom of Udasi Faqirs, Chela is to succeed to the office of Mohtmim. Plaintiff averred that he being Chela and son of Gurdial Singh succeeded to the office as Manager in place of Gurdial Singh. Plaintiff further entered into possession of the land, but defendants interfered in his possession. Plaintiff- firstly filed suit for permanent injunction against defendants 1 to 4 which was partly decreed in respect of the portion found to be in possession of plaintiff, but was dismissed qua the property in dispute as it had been found that the plaintiff had been dispossessed from the said portion by the defendants. Plaintiff however, was given liberty to file suit against the defendants to seek possession. Plaintiff thus, averred that defendants have no right to remain in possession and plaintiff is entitled to a decree for possession. On notice of the suit, defendants in their written statement denied that the property is an Udasi institution. According to the defendants, it is a Sikh Gurudwara and is being used as such since the time immemorial. Defendants alleged that Gurdial Singh was its Granthi and was looking after the affairs of the Gurudwara only in that capacity. Defendants also stated that plaintiff being an illiterate, could not be appointed as Granthi and so, on the death of Gurdial Singh, villagers appointed a Committee under the name of "Sudhar Committee Gurudwara" Dharamshala Killawali. Locus-standi of the plaintiff to file suit was contested and it was stated that he was never appointed as Mahant of the Dera Udasian at any point of time. Trial Court framed the following issues :-

Whether the plaintiff is Chela of Gurdial Singh ? OPP.

Whether there is any custom whereby the succession goes from Guru to Chela in respect of the office of Mohtamim (Manager) ? OPP.

Whether the land in dispute belonged to the Gurudwara ? OPD.

Whether the institution property in dispute belongs to sect of Udasi faqirs and its effect ? OPP.

Whether the property marked A is in fact a Gurudwara and the suit against defendant No. 1 to 4 as such is competent ? OPP.

Relief.

The learned Sub Judge on the basis of evidence brought on record decided all issues in favour of plaintiff and decreed the suit. Feeling aggrieved, defendants filed first appeal but the learned District Judge by a detailed judgment dated 14.9.1979 dismissed the appeal. Hence, the second appeal by defendants.

Finding on issues 3, 4 and 5, i.e. whether the land in dispute belongs to Gurdwara or belongs to sect of Udasi Faqirs, has not been seriously contested by learned counsel appearing on behalf of defendants. Otherwise too, finding recorded on these issues on appreciation of evidence, being a finding of fact, calls for no interference in second appeal.

Learned counsel appearing on behalf of defendants however, is seriously contesting the finding in regard to locus-standi of the plaintiff to file suit for possession. Counsel has contended that the first appellate Court has recorded a clear finding that there is no evidence of the existence of custom regarding succession of the Mahant of the institution or installation or appointment of the plaintiff as Mahant of the institution. Counsel further contended that the first appellate Court having held that only some one from the paternity of Udasi sect could alone maintain a suit for possession of the property in dispute, the first appellate Court was not legally justified in holding the locus-standi of the plaintiff to maintain suit. Counsel has cited judgment of Supreme Court in Bhavnagar Municipality Vs. Union of India (UOI) and Another, , to contend that suit of the plaintiff was for possession based on title and he having failed to prove his title to the property could not be granted a decree for possession. Against this, it is contended by learned counsel appearing on behalf of plaintiff that the present suit was filed not only on the basis of title, but plaintiff was in possession of the property before he was dispossessed by the defendants who have not proved any right to the property. Counsel contended that the Courts below have rightly decreed the suit of the plaintiff for possession.

After giving my thoughtful consideration to the entire matter, I find that there is no merit in this appeal.

Section 5 of the Specific Relief Act entitles a person to recover possession of the specific immovable property in the manner provided by the Code of Civil Procedure, Section 6 provides a summary remedy to the person dispossessed of immovable property otherwise in due course of law. A suit u/s 6 can be maintained against true owner on the basis of possession with a condition that the possession of the plaintiff was disturbed within a period of six months. The order u/s 6 is not appealable and is not to operate as a bar for another suit on the basis of title. There is no provision in the CPC providing that possession can be recovered only by a person who has a title to the property. Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership.

Salmond on jurisprudence, Eleventh edition, observed:

"If a possessory owner is deprived of the thing by a person other than the true owner he can recover it. For the defendant cannot set up as a defence his own possessory title since it is later than and consequently inferior to, the possessory title of the plaintiff. Nor can be set up as a defence the title of the true owner - the justerti as it is called, the plaintiff has a better right because of an earlier title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. The expediency of this doctrine of possessory ownership is clear. Were it not for such a rule, force and fraud would be left to determine all disputes as to possession, between persons of whom neither could show an unimpeachable title to the thing as the true owner of it."

Sections 8 and 9 of the Specific Relief Act, 1877 corresponding to Sections 5 and 6 of the Specific Relief Act, 1963, came up for consideration before the Supreme Court in Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, . Their Lordships held that a regular suit based on prior possession without proof of title was maintainable against a person having no title to the property. The Court quoted with approval the following observation of Subramaniam Ayyar, J., in Mustapha Sahib v. Santha Pillai :

"..... That a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title."

The Supreme Court pointed out that this principle is now indirectly embodied in Article 64 of the Limitation Act of 1963, which provides a period of 12 years for a suit "for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossed." The Court referred to the leading cases (1849)13 QB 945 and (1865)1 QB 1 and the decision of the Privy Council in 1907 AC 73 and said :

"The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold. No subsequent case has been brought to our notice departing from that view. No doubt a great controversy exists over the two cases of (1849)13 QB 845 and (1865)1 OB but it must be taken to be finally resolved by 1907 AC 73."

The Supreme Court quoted the following paragraph from 1907 AC 73 :

"It cannot be disputed that a person in possession of land in the 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. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title."

It thus, stands settled by the Hon''ble Supreme Court that suit for recovery of possession on prior possession within 12 years in maintainable and title need not be proved unless the defendant can prove one. Article 64 of the Limitation of immovable property based on prior possession and not on title within 12 years from his dispossession.

In the present case, it has been proved on record that Gurdial Singh was the last Mahant of the Dera Udasian and on his death, his son, Kirpal Singh came in possession of the property. A decree for possession has been sought by the plaintiff by pleading; (1) that on the death of Gurdial Singh, according to custom of Udasi Faqirs, plaintiff being Chela and son of Gurdial Singh succeeded to the office of Mahant in place of Gurdial Singh, and (2) that on death of Gurdial Singh, plaintiff came in possession, but defendants forcibly took possession of the property in dispute. Suit of the plaintiff thus, is not only on the basis of title but also on the basis of his prior possession. In order to defeat the claim of the plaintiff on the basis of his prior possession, defendants were bound to prove their right and title to the property. Defendants in their written statement had alleged that property belongs to Gurduwara, but it has been found by both the Courts below that property in dispute is not a Sikh Gurudwara but belongs to sect of Udasi Faqirs and is an Udasi institution. On the death of Gurdial Singh, plaintiff being his son came, in possession of the property but was dispossessed by the defendants. Defendants have failed to prove any right or title to the property and thus, could not legally interfere with the possession of the plaintiff. Plaintiff has rightly been held entitled to a decree for possession on the basis of his prior possession. The judgment in Bhavnagar Municipality''s case (supra) cited by counsel for defendants has no application to the facts of the present case as in that case, suit had been brought by the plaintiff only on the basis of title and not on the basis of prior possession.

Resultantly, the appeal fails. It is accordingly dismissed. No costs.