Vishan Singh vs Kailash Narayan and Others

A.P. Shrivastava, J.—This appeal is directed by the Appellant/Plaintiff u/s 100 of C. P.C. against the judgment and decree dated 12.11.1998 passed by the 3rd Additional District Judge, Vidisha Camp Basoda (M.P.) in Civil Appeal No. 15-A/98 by which the judgment and decree dated 29.04.1980 passed by the Civil Judge, Class-II Ganj-Basoda in Civil Suit No. 240-A/76 was affirmed. The Appellant filed a Civil Suit before the lower Court for declaration and permanent injunction which was dismissed by both the Courts below. Being aggrieved by the decision of dismissal of Civil Suit and Civil Appeal, the present Appellant has preferred this appeal.

The fact of the case are that in village Mohaniya Khedi, Tehsil Basoda, Land bearing Khasra No. 19 Rakwa, 4 Beegha and 11 Biswa [Old No. 37 Rakwa, 4 Beegha and 11 Biswa] was belonged to Mulli, Raghunath, Bhamra, Hari Singh and Udham Singh who were Bhumiswami of the land. The Respondents have purchased the said land by the Respondents in the year 1967 and also mutated in their names. The case of the Appellant is that he is in possession over the suit land for more than 20 years with the knowledge of the original title-in-predecessor and acquired adverse possession and also title over the suit land. The Respondents were trying to dispossess the Appellant, hence, the suit was filed. In the written statement, Respondents No. 1, 3 and 4 denied the contention of the Appellant. It is also denied that Appellant acquired title over the suit land in adverse possession. It is also pleaded that as there was no dispossession of the Appellant from the suit land, therefore, question of dispossession does not arise.

The learned trial Court framed the issues on the basis of the pleadings of the parties. The suit of the Plaintiff on the basis of adverse possession is not proved by the Appellant, but Issue No. 3, however, that the Respondents were trying to dispossess the Appellant was decided in favour of the Appellant. As the Plaintiff has not been able to establish his title over the suit property on the basis of adverse possession, the suit was dismissed by the Court below. First Appellate Court also affirmed the judgment and decree of the lower Court and dismissed the appeal, hence, this Second Appeal has been filed by the Appellant before this Court.

In this appeal, a short question is involved:

Whether in a suit for declaration and injunction when Plaintiffs possession to the suit property has been proved the Courts below erred in not granting the relief of permanent injunction?

Heard learned Counsel for the parties and perused the record.

Learned Counsel for the Appellant submits that it is settled position of law that even if title is not proved and possession of a party is proved on a property then he is entitled to protect his possession until dispossession has taken place in accordance with law. He submits that the learned trial court has not accepted the plea regarding the adverse possession but still held that the Appellant is in possession over the disputed land and the Respondents were trying to dispossess him.

Learned Counsel for the Respondents admits this position that if the party in possession on the suit property then permanent injunction can be granted but the possession must be settled possession.

Learned Counsel for the Appellant relied on S.R. Ejaz v. Tamil Nadu Handloom Weavers Cooperative Society reported in 2002 (2) MPWN 15 (SC) in which it is held that tenant''s possession after expiry of lease period is judicial possession. He cannot be forcibly dispossessed. Learned Counsel for the Appellant also relied on Rame Gowda (D) by L. Rs. v. M. Varadappa Naidu (D) by L. Rs. reported in 2004 (I) MPJR 366 in which the Hon''ble Apex Court held that person in possession can protect his possession and may even use reasonable force to keep out a trespasser. Rightful owner can take possession if he can do so peacefully and without use of unreasonable force. The Hon''ble Apex Court also observed that regarding protection of settled possession, settled possession must be effective, undisturbed and within the knowledge of the owner. If possession fulfills these requirements then such possession should be protected. In this case, the Hon''ble Apex Court also held that:

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 as element of animus possidendi. The nature of possession of the trespasser would, however, 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 forcibly possession.

Similar view has expressed by this Court in the case of Smt. Urmila and Ors. v. Bhogiram reported in 2004 (II) MPJR 82.

Apart from the above legal position, learned Counsel for the Appellant also submits that the possession is also duly proved by Khasra Ex.P.1, Ex.P.2 & Ex.P.3. In this regard, he relied on Khemchand v. Deochand and Ors. reported in 1992 (1) MPVB 156 in which it is held that u/s 117 of the Land Revenue Code, 1959, person recorded in revenue papers, his ouster not proved at any point of time, will be presumed to be in possession of the field.

It is submitted by learned Counsel for the Respondents that the possession of the Plaintiff is found to be proved by the lower Court but to protect his possession, it is necessary that possession must be a settle possession. He also submits that in view of Ex.D/1 (objection) filed before the Revenue Authorities and due to Khasra, it cannot be said that the Appellant was in settled possession of land. In this regard, he also placed reliance on Rame Gowda (supra) reported in Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, in which it is held that whether the suit for declaration of title and injunction is filed and title is not clear, the question of title will have to be kept open without denying the Plaintiffs 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. 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 had no title thereof. In para-9 of the judgment, the Hon''ble Apex Court held that it is in 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 to be settled by a catena of decisions Illustratively, we may refer to Munish Ram v. Delhi Admn. reported in AIR 1968 SC 702 , Puran Singh and Others Vs. The State of Punjab, and Ram Rattan and Others Vs. State of Uttar Pradesh, . In the case of Munish Ram (supra), it is 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 the 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.

Looking to the above submissions made by the parties and the facts of the case, it is true that the Appellant is in possession over the suit land. Although, the adverse possession is not proved but it appears that he is having in possession over the suit land and his possession appears to be settled possession. Therefore, possession should be protected unless evicted in due process of law. The learned Courts below have committed error by not granting the prayer of permanent injunction when Appellant''s possession is found to be proved over the suit property. Therefore, the judgment and decree as awarded by learned Courts below is here by set aside. The Appellant is in possession over the suit property and he should not be dispossessed and the Respondents are restrained to dispossess the Appellant without taking recourse of law. Parties shall bear their own costs. Decree be drawn up accordingly.