Rajasthan High Court - Jaipur
State Of Rajasthan vs Kamal Kumar S/O Rodu Ram Yadav ... on 8 May, 2023
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
[2023/RJJP/009773]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 467/2018
1. State Of Rajasthan, Through Chief Secretary, Secretariat,
Jaipur
2. Director, Estate, Mini Secretariat, Jaipur
3. Chief Engineer, Construction Division, Near Ajmer Puliya,
Public Works Department, Jaipur
4. Nagar Nigam Jaipur Through Office Of Mahapor, Nagar
Nigam , Jaipur.
----Appellants/Defendants
Versus
Kamal Kumar S/o Rodu Ram Yadav, R/o Foos Ka Bungalow,
Badodiya Basti, Near Railway Station, Jaipur
----Respondent/Plaintiff
For Appellant(s) : Mr. Rajesh Maharshi, AAG For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment 08/05/2023 This civil second appeal has been preferred by the appellants-defendants (for brevity "the defendants") against the judgment and decree dated 28.05.2018 passed by the Additional District Judge No.10, Jaipur (for brevity "the appellate court") in Civil Regular Appeal No.103/2017 whereby, while allowing the appeal preferred by the respondent-plaintiff (for brevity "the plaintiff"), the judgment and decree dated 20.04.2017 passed by the learned Civil Judge (East) Jaipur Metropolitan (for brevity- `the learned trial court') dismissing the civil suit No.92/2003 (199/2000) for permanent injunction, have been revered. (Downloaded on 11/11/2023 at 05:18:12 PM) [2023/RJJP/009773] (2 of 7) [CSA-467/2018] The relevant facts in brief are that the plaintiff filed a suit for permanent injunction against the defendants stating therein that he was in occupation of the residential house situated in Foos Ka Bangla, Badodiya Basti, Jaipur since the time of his ancestors i.e. for last about 100 years. It was averred that in the survey conducted by the defendants in the year 1971, he was assigned survey No.006287 of the subject property being in its possession. Alleging that the defendants wanted to forcibly dispossess him, the decree as aforesaid was prayed for.
Defendant No.1 in its written statement submitted that the possession of the plaintiff over the suit property was as encroacher.
Defendants No.2 to 4 in their joint written statement claiming ownership over the suit property have stated that his possession was as trespasser.
On the basis of pleadings of the parties, learned trial court framed three issues including the relief. After recording evidence of the respective parties, the learned trial court dismissed the suit vide its judgment and decree dated 20.04.2017. The civil first appeal preferred thereagainst by the plaintiff has been allowed by the learned appellate court vide its judgment and decree dated 28.05.2018 and the suit has been decreed.
Learned counsel for the defendants would contend that indisputably the defendants are owners of the suit property and the plaintiff is occupying the same as trespasser. He submits that in view thereof, the suit simplicitor for injunction in absence of the relief of declaration was not maintainable.
(Downloaded on 11/11/2023 at 05:18:12 PM)[2023/RJJP/009773] (3 of 7) [CSA-467/2018] Shri Rajesh Maharshi, learned AAG submits that in view of issuance of notice dated 18.11.1976 under Section 91 of the Land Revenue Act, 1975, possession of the plaintiff over the subject land could not have been recognised as peaceful and settled possession. He, therefore, prays that the civil second appeal be allowed, the judgment and decree dated 28.05.2018 be quashed and set aside and the judgment and decree dated 20.04.2017 passed by the learned trial court be restored.
Heard. Considered.
While deciding the civil first appeal, learned Appellate Court has, on re-appreciation of the evidence, recorded a categorical finding that the plaintiff is in peaceful and settled possession of the suit property since the year 1965 to the knowledge of the defendants and he has not been dispossessed since then. From the Exhibit-1, the certified copy of the Survey No.006287 conducted on 18.09.1971 by the defendants, it is revealed that the plaintiff was found in possession of the suit property since last seven years. Although, it is borne out from the record that the plaintiff was served upon with a notice dated 18.11.1976 under Section 91 of the Rajasthan Land Revenue Act, 1956; but, admittedly, neither any action in pursuance thereof was taken by the defendants nor, any reason has been assigned for such inaction. Rather, from the other documents on record including the electricity bills and note-sheet of the Estate Officer, it was found that the possession of the petitioner is long, settled and peaceful.
The Hon'ble Apex Court as in case of Rame Gowda (D) By LRs vs M. Varadappa Naidu (D) By LRs. & Anr AIR 2004 SC 4069 held as under:-
(Downloaded on 11/11/2023 at 05:18:12 PM)[2023/RJJP/009773] (4 of 7) [CSA-467/2018] "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 he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
9. It is the 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 come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab (1975) 4 SCC (Downloaded on 11/11/2023 at 05:18:12 PM) [2023/RJJP/009773] (5 of 7) [CSA-467/2018] 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh (1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case (supra), it was 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 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. 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 and Ors.'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 at concealment by the trespasser. The phrase 'settled possession' does not carry any special charm or 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' :
(Downloaded on 11/11/2023 at 05:18:12 PM)[2023/RJJP/009773] (6 of 7) [CSA-467/2018]
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 or 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 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 forcible possession.
10. In the cases of Munshi Ram and Ors.(supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in Horam Vs. Rex AIR 1949 Allahabad 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property."
(Downloaded on 11/11/2023 at 05:18:12 PM)[2023/RJJP/009773] (7 of 7) [CSA-467/2018] Thus, from the aforesaid precedential law which is being followed consistently, it is established that a person in long, peaceful and settled possession cannot be dispossessed even by the true owner without recourse to due process of law. In the instant case, the learned appellate court has restrained the defendants from dispossessing the plaintiff, who is found in long, peaceful and settled possession since the year 1964, without following the due process of law. The learned counsel for the defendants could not satisfy this Court as to how this direction suffers from any illegality or infirmity inasmuch as way back in the year 1976, they themselves have issued a notice under Section 91 of the Act of 1956 seeking dispossession of the plaintiff from the subject property i.e. by due process of law.
Contention of Shri Rajesh Maharshi, AAG as to non-
maintainability of suit for permanent injunction in absence of the relief for declaration does not merit acceptance in the facts & circumstances of the cases noted hereinabove. It is a well settled legal principle that suit for injunction is also maintainable on the basis of possessory title.
Therefore, this Court does not find the judgement and decree dated 28.5.2018 to be suffering from any illegality, infirmity or perversity.
Since the civil second appeal is devoid of any substantial question of law, the same is dismissed.
(MAHENDAR KUMAR GOYAL),J TN/55 (Downloaded on 11/11/2023 at 05:18:12 PM) Powered by TCPDF (www.tcpdf.org)