Madhya Pradesh High Court
Shavaram @ Seva vs Dhapubai And Ors. on 28 March, 2006
Equivalent citations: AIR 2006 MADHYA PRADESH 142, 2006 (5) ALL LJ NOC 1147, 2006 (3) AJHAR (NOC) 1004 (MP), 2006 A I H C (NOC) 389 (MP), (2006) 2 MPLJ 450, (2006) 3 MPHT 260
JUDGMENT K.K. Lahoti, J.
1. This is plaintiff's appeal who lost in both the Courts below. This appeal was admitted on 23-9-1986, on following substantial questions of law :
(1) Whether in the facts and circumstances of the case, the leaned Lower Appellate Court Judge committed an error of law in not passing a decree for perpetual injunction restraining the respondents from dispossessing the appellant from the suit land otherwise than in due course of law ?
(2) Whether the learned Appellate Court Judge committed an error of law in rejecting the Will, Ex. P-2, when no suspicious circumstances attending its execution were pleaded or proved by the respondents ?
2. learned Counsel appearing for the appellant at the outset submitted that he is pressing his appeal so far as it relates to substantial question of law No. 1 and for substantial question of law No. 2, he is not pressing this appeal as the findings in respect of Will are findings of fact which have been recorded by both the Courts below. In view of the aforesaid contentions, both the parties are heard in respect of substantial question of law No. 1.
3. Before considering rival contentions of the parties, it will be appropriate if facts of the present case are narrated in short.
(a) Parties are closed related to each other. Genealogical tree showing the relationship between the parties are as under :
Nanda | __________________________________________________ | | | Dhapubai Deobai Savaram @ Seva (Daughter) (Daughter) (adopted son) (disputed)
(b) Dhapubai died during the pendency of the appeal and her name has been deleted as per order dated 25-1-2006. Deobai also died during pendency of the suit and her legal heirs Radheshyam and Mangilal were brought on record.
(c) The suit property has been alienated during pendency of this appeal by Mangilal and Radheshyam to Rajendra Singh by sale-deed, dated 7-2-2002 and he has been impleaded as respondent in this appeal.
(d) Appellant filed a suit for declaration and permanent injunction in respect of certain agricultural lands of which details have been given in Para 1 of the plaint and for possession of the house property of which details are also given in Para 1 of the plaint. The declaration has been sought in respect of both the properties while the injunction has been sought in respect of agricultural lands and a decree for possession has been sought in respect of house property.
(e) The pleadings in the plant are :
(i) That the appellant has claimed himself to be adopted son of late Nanda. All the agricultural lands are recorded in the name of late Nanda and house is recorded in the Gram Panchayat in the name of late Nanda. Nanda died four months back from the date of filing of the suit.
(ii) Uptil death of Nanda, in the suit house, plaintiff and Nanda were residing jointly. After death of Nanda, last rites and Shradh were performed by the plaintiff and as per rites, the Pagdi was also tied to the plaintiff in the presence of the Panchas and other people of the village.
(iii) Wife of Nanda died 30 years before filing of the suit. At the time of death of wife, there were only two daughters to Nanda, namely, Dhapubai and Deobai. After the death of wife of Nanda, plaintiff himself had performed the rites, Shradh and he was also tied Pagdi. After the death of wife of Nanda, he had not contracted second marriage or Natra and because he was having no male issue, Nanda in the Shradh of wife adopted plaintiff as per customs in front of Panchas, Natural parents of plaintiff had given the plaintiff in the lap of Nanda. Since then, plaintiff resided with Nanda as adopted son and was cultivating the lands of Nanda. Nanda also treated him as son. Before 26 years of filing of the suit on 29-6-1953, a registered adoption-deed was executed by Nanda in favour of the plaintiff in which previous customs of adoption were affirmed.
(iv) At the time of death of Nanda, he was 75 years old but because of his old age, plaintiff was cultivating the land and since last 30 years, plaintiff is in possession of the lands.
(v) That the defendants arc daughters of late Nanda. They are having no right, title or interest in the disputed house or agricultural lands. Late Nanda during his life time on 13-4-1973 executed his last will of stamp of Rs. 2.50 and got it attested with the witnesses. By this Will late Nanda bequeathed all his agricultural land, house and other movable property in favour of the plaintiff and no right was given in movable or immovable properties to the defendants. By the same Will, Nanda had also cancelled his previous Will which was in favour of the defendants. Nanda was not educated but he was putting his signature. He was also a milk vendor and obtained milk vendor licence from Municipal Council, Mandsaur on which Nanda put his signature. Nanda was also operating a bank account under his signature. After death of Nanda when the plaintiff applied for mutation, defendants objected and denied any right or title of the plaintiff in land and house. It is alleged that they were trying to grab the house and agricultural lands and also were trying to deprive the plaintiff from the house and land while they were having no right, nor they were in possession of the house and land.
(vi) Defendants had also shown their intention to dispossess the plaintiff from the lands and to alienate it to some other person.
(vii) That, after death of Nanda, plaintiff kept the house-hold goods like fuel, utensils in the house and locked it. On 24-4-1979, defendant No. 2 Deobai broke the lock and forcibly took the possession of the house and she is in possession of the house. Plaintiff is entitled for the possession of the house from her.
(viii) One plot was got allotted by the plaintiff from Gram Panchayat and a house was got constructed by Nanda on this land. Defendants are not disputing in respect of plaintiffs right on the said house. No relief is sought by the plaintiff in respect of this house. This house is recorded in the name of the plaintiff in the Panchayat.
On the aforesaid grounds, the suit was filed, for the reliefs as stated herein above.
4. Defendant No. 1, had not filed any written statement in the case but on 22-6-1979 she filed an application admitting claim of plaintiff and prayed for decreeing the suit against her. But subsequently she rescinded from admission by giving her statement on 14-12-1984, before the Trial Court.
5. Defendant No. 2 contested the suit by filing written statement in which she has denied the allegations of the plaintiff. She has raised following pleas :
(i) That, at the time of the death of Nanda, respondent No. 2 was residing in the disputed house and she herself has cremated Nanda and all the last rites were performed by her including Shradh of Nanda.
(ii) The plaintiff had neither performed Shradh nor Pagdi was tied on him. Late Nanda had never adopted plaintiff nor he has treated plaintiff as son. All the story is set up just to grab the properly of Nanda. No giving and taking took place in respect of adoption by Nanda, nor plaintiff was lied Pagdi at the time of the death of wife of Nanda. This fact has been supported by defendant No. 2 with the example that after the death of natural father of plaintiff, plaintiff has got mutuated his name in respect of all agricultural lands situated at Village Mohamadpura, Badri and Sondhani as successor of his natural father. Nanda had executed a Will on 27-3-1973 in favour of the defendant No. 2.
(iii) That, no need of adoption was executed on 29-6-1953 in favour of the plaintiff. In fact, the aforesaid deed of adoption is forged and fabricated and it appears that plaintiff had got executed aforesaid deed by impersonation. Nanda was never putting his signature, while in the adoption deed, there are signatures which show that it is forged and fabricated document. Late Nanda was an illiterate person and was putting thumb impression on the documents. On Will dated 13-4-1973, licence, revenue receipt, Bahi, late Nanda had not put his signatures.
(iv) That, plaintiff was never in possession of lands but after the death of Nanda, he forcibly took possession of the lands.
(v) That no Will was executed by Nanda on 13-4-1973 in favour of the plaintiff. Defendant No. 2 being a daughter and legal heir of Nanda is an exclusive owner of the land and house.
(vi) That plaintiff is still residing in the house which was given to him by his natural father.
(vii) That defendant No. 2 has also filed a suit in respect of same property in the same Court which is registered as Civil Suit No. 410-A/79 and both the suit be consolidated.
6. The Trial Court framed the issues and after recording evidence of both parties recorded following findings :
(i) That the plaintiff was not adopted by Nanda nor the natural parents of plaintiff gave him in adoption to Nanda.
(ii) That, Nanda had not executed deed of adoption, dated 29-6-1953 in favour of the plaintiff.
(iii) That, Nanda had not executed Will, dated 13-4-1973 in favour of the plaintiff in respect of the suit house and lands.
(iv) That, plaintiff is not in possession of house and agricultural land since last 30 years.
(v) That on 27-3-1973, Nanda executed a Will in respect of all his movable and immovable properties in favour of the defendant No. 2.
(vi) That, though Nanda was putting his signature but it is having no effect in the case.
(vii) The Trial Court while deciding Issue No. 7 found that the plaintiff is in possession of agricultural land while on the house, defendant Deobai is in possession.
The Trial Court after recording aforesaid findings dismissed the suit of the plaintiff/appellant.
7. An appeal was filed by the plaintiff. The Appellate Court affirmed the findings of the Trial Court, so far as it relates possession on house, agricultural land, and also in respect of adoption and Will. The appellant raised a contention before the Appellate Court that he is entitled to protect his possession by issuance of injunction against the respondents. The Appellate Court considered this aspect in Paras 32 and 33 of the judgment and on recording that there seems to be no imminent danger to plaintiff Shavram of dispossession, as and when if there is a threat, he may approach to a Court of law for redressal of the grievance and also held that plaintiff Shavram never raised this point before Lower Court, so he is not entitled to any relief and dismissed the appeal.
8. Above judgment and decrees are under challenged in this appeal. learned Counsel for the appellant submitted that in spite of the fact that the appellant has failed to prove his adoption by Nanda, adoption deed and Will in his favour, but he has successfully proved his possession over the land. The defendant No. 2 in the written statement has admitted this fact that the appellant is in possession of the land. The appellant is entitled for protection of his possession by issuance of injunction against the respondents. Appellant is in settled possession and cannot be dispossessed without taking recourse of law. There was temporary injunction order in favour of the appellant throughout the litigation and since near about 30 years, appellant is in possession of the land, before filing of the suit and after filing of the suit, appellant is in possession of the land. He is entitled to protect his possession by a decree of perpetual injunction against respondent. Reliance is place by the appellant to the Apex Court judgment in Rame Gowda v. Varadappa Naidu , Single Bench judgment of this Court in Nojibai v. Udibai 1988 RN 369, Balu v. Ummedsingh 1990 RN 172, and recent judgment in Second Appeal No. 228/90, Pratap v. Bherusingh decided on 8-12-2005 and submitted that this relief be allowed to the appellant.
9. Shri G.M. Chapekar, learned Sr. Counsel on behalf of respondent vehemently opposed the prayer and submitted that the plaintiff is not in settled possession. Merely he is in possession will not be a ground to grant a decree of permanent injunction against the respondents. In plaint in Para 7, the appellant had pleaded that his possession was with Nanda. Nanda died just four months back to the filing of the suit and thereafter the plaintiff filed a suit and obtained temporary injunction. The plaintiff has admitted that he was in possession along with the Nanda and after death of Nanda for a period of four months plaintiff remained in possession of the land. Plaintiff remained in possession of the land for a short period, his possession cannot be said to be settled possession and no decree for permanent injunction can be granted. In fact, both the Courts below found that respondent Deobai is a successor of Nanda who executed a Will in her favour. The story of adoption and Will in favour of the plaintiff has been negatived by the both the Courts below. In these circumstances, no injunction can be issued against a true owner. Now property has been alienated by the legal heirs of Deobai in favour of Rajendra Singh who is entitled to possession but because of the temporary injunction order issued in the case or in this appeal, respondent No. 3 Rajendra Singh cannot be deprived with the possession. It is prayed that this appeal be dismissed with costs.
10. To the aforesaid contention, Shri B.L. Pavecha, learned Senior Advocate submitted that in this appeal there is a temporary injunction order in favour of the appellant. Respondent No. 3 Rajendra Singh in the reply has contested the prayer. Even in the sale deed executed by the respondents Radheshyam and Mangilal in favour of Rajendra Singh, there is a recital of delivery of possession which is apparently false, and in the garb of that, respondent Rajendra Singh may dispossess the appellant. In this regard he has relied on certain averments made in the application for temporary injunction, its reply and submitted that purchaser Rajendra Singh may dispossess the appellant and to protect his possession, the appellant is entitled for decree of injunction against Rajendra Singh. It is also submitted by him that even after dismissal of case on merits, respondent cannot dispossess the appellant by taking law in their hand and the respondent No. 3 has to adopt a due procedure of law for taking possession from the appellant.
11. To appreciate rival contention of the parties, firstly some facts of the present case may be seen. Defendant No. 2 Deobai in the written statement in Para 7 has stated that on the lands of deceased Nanda, plaintiff was not in possession but after his death, plaintiff by taking law in his hand forcibly took the possession of the lands. Though Deobai denied this fact in her statement and has been confronted with the aforesaid averments in the written statement but the fact remains that there is an admission on behalf of Deobai in respect of the possession over the land in the written statement. In the Trial Court, on 9-5-1979, a conditional exparte temporary injunction order was issued in favour of the plaintiff that in case any loss is caused to the defendants by issuance of temporary injunction in favour of the plaintiff, plaintiff shall furnish surety of Rs. 3000/- that he will compensate the defendants. This order was confirmed on 25-10-1979 by the Trial Court, recording a finding that prima facie plaintiff is in possession of the land, but not such condition which was imposed while issuing ex parte temporary injunction on 9-5-1979 was imposed by the Trial Court, while affirming the exparte order. Thereafter, the suit was dismissed on 3-1-1985. An appeal was preferred. The Appellate Court granted ex parte injunction order on the first date of hearing (which appears to be 8-1-1985). This order was confirmed by the Appellate Court on 28-6-1986. After dismissal of the first appeal on 1-8-1987, in the Second Appeal, on 13-8-1986, this Court directed to maintain status quo. This order has been affirmed on 23-9-1986 while admitting the appeal, For ready reference order dated 23-9-1986 passed by this Court in this appeal deserves to be referred :
I. A. No. 2704/86 for grant of stay.
learned Counsel heard on this application.
Respondent Nos. 2 and 3 have submitted their reply to this application. It is stated therein that ever since the dismissal of the suit Mangilal is cultivating the suit land.
Shri Pavecha; learned Counsel for the appellant pointed out from Para 58 of the Trial Court's judgment that the appellant has been found to be in possession of the suit land and the Lower Appellate Court in Para 32 of the judgment while conceding the fact that the appellant was in possession, refused the relief of injunction mainly on the ground that certain citations referred to him being Short Notes and the full text of the judgments being not available, refused ' to act on them,. Nonetheless from the judgment of the two Courts below it is amply established that the appellant is in possession of the agricultural land. In such circumstances, his possession deserves to be protected.
The respondents are, therefore, restrained from interfering with the possession of the appellant upon the agricultural land until further orders.
Shri Sharma, for the respondent Nos. 2 and 3 stated that as a result of this injunction, the respondents will be put to pecuniary loss as they will be deprived of the agricultural produce. On a proper application being made in this behalf, this question of putting conditions will be considered.
C.C. on payment of usual charges today.
Thereafter, on 26-6-2002, appellant made a prayer for issuance of a temporary injunction against purchaser-respondent Rajendra Singh. On the aforesaid, this Court passed following order :
Heard on I.A. No. 958 of 2002. It is an application made by the appellant under Order 22 Rule 10 of CP Code. Notice was issued to the proposed successor in interest of the suit property. He is' served and duly represented.
It is not in dispute that during pendency of this appeal, the devolution of interest has taken place in favour of he proposed purchaser of the suit property and hence, he is allowed to become a respondent. Necessary amendment be carried out within a week and he be arrayed as one of the respondent.
In order to grant injunction against the newly added respondent, parties are directed to file an affidavit indicating their yearly yield/ usufruct out of the land in suit to enable the Court to impose condition while confirming the interim injunction which in the event of the appeal being dismissed can be put to implementation against the appellant.
Parties may file an affidavit within a week to enable this Court to pass appropriate orders.
In the meantime, the newly added respondent Rajendra Gautam is restrained from interfering in appellant's possession over the suit land. It is made clear that this order being temporary in nature shall be confirmed only after necessary documents as directed are filed.
Aforesaid order is continuing till date, without any modification.
12. The Trial Court while deciding the suit in Para 54 of the judgment has recorded a finding that defendant Deobai has admitted that on the disputed land, plaintiff is in possession and in Para 58 has also recorded a finding that on the basis of appreciation of evidence, plaintiff is found in possession of the land. Though the Appellate Court has not disturbed the aforesaid finding, but the Appellate Court has not passed any decree of injunction in favour of the appellant.
13. In this appeal, only short question is whether in respect of the failure on the part of the appellant to prove his title in respect of agricultural land whether he is entitled to protect his possession by a decree of injunction by this Court or whether he is in settled possession of the land so that a decree of injunction may be granted in his favour.
14. In this regard, in the written statement of Para 7, defendant No. 2 has very specifically stated that after the death of Nanda, plaintiff forcibly took possession of the land. It is not in dispute that Nanda died four months back before filing of the suit. The suit was filed on 8-5-1979 meaning thereby somewhere in the month of January, 1979, Nanda died. At that time there must be crop of wheat or gram on the land. Plaintiff filed an application for temporary injunction before the Trial Court in which the plaintiff stated that he is in possession since last 30 years and in that year he has also made preparation for sowing the crop on the land. The land was duly ploughed by the plaintiff for the crops of rains. In Para 7 of the affidavit dated 8-5-1979, he has stated this year he also sown the crop and also reaped the crop and he is in possession of the land. On the land of Village Bajkhedi, he sown Jwar and Gram and on the land of Village Mohamadpura, he had sown sugarcane. Though these facts were controverted by the other side but the Trial Court vide order dated 9-5-1979 initially issued exparte temporary injunction recording a finding that prima facie the plaintiff is in possession of the land. Thereafter, this order was affirmed by the Trial Court vide Order 25-10- 1979. In the said order, the Trial Court has considered this aspect that defendant No. 1 Smt. Dhapubai has admitted the entire claim of the plaintiff and on the basis of reply filed by the defendant No. 2 Deobai, the Trial Court found that the defendant No. 2 has also admitted the possession of the plaintiff over the land. Aforesaid injunction order continued till the decision of the suit and thereafter in first appeal and also in this second appeal, temporary injunction order is in favour of the plaintiff. The Trial Court while considering issue of possession in Paras 54 and 58 also recorded a finding that the plaintiff is in possession of the land.
15. Now question remains whether plaintiff is in settled possession of the land. The meaning of expression 'settled possession' is to be seen. The Apex Court defining settled possession in Rame Gowda (supra), held thus:
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 v. Delhi Admn. Puran Singh v. State of Punjab and Ram Rattan v. State of Uttar Pradesh, the authorities need not be multiplied. In Munshi Ram case, 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 reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an instruction 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 case, 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 straitjacket. 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" (SCC P. 527, Para 12):
(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 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.
16. In this case, this fact has been proved by the plaintiff and is not disputed by the other side that after the death of Nanda, plaintiff is in possession of the land. Though the case of the plaintiff is that during life time of Nanda he was cultivating the land but his possession may be presumed with the permission of Nanda and the plaintiff cannot be said to be in exclusive possession of the land. As plaintiff has failed to prove his title or any right over the land, matter may be considered in the light of possession of plaintiff on the land after the death of Nanda. Nanda died somewhere in the month of January, 1979. At that time crop must be standing on the land. Plaintiff must have reaped all the crops on the land. In this regard, evidence of witnesses may been seen. P.W. 3 Mangniram in Para 1 of his statement has stated that the plaintiff is cultivating the land of Nanda and on the date of statement, Le., 7-1-1983, plaintiff was in possession. In Par 2, he has stated that his lands are adjoining to the disputed land. In cross-examination in Para 4, he has been given a suggestion whether the plaintiff was cultivating the land in the Batai, which has been denied by the witness as he was not aware with the fact. P.W. 9 Bherulal in Para 3 of his statement has stated that on the disputed land, plaintiff is in possession. In Para 10 of cross-examination, a suggestion has been given to him that the lands are lying fallow which has been denied and he has stated that on the lands there is crop. P.W. 10 plaintiff Shavram has stated in Para 12 that he is in possession of the land though it is stated by him that since the date of adoption, he is in possession of the land. In the cross-examination, in Para 25 he has been cross-examined in this regard but his statement remained trustworthy. D.W. 2 Bhanwarlal in Para 1 has stated that Shavram was cultivating the land but as of Bataidar. In Para 7 he has admitted this fact that plaintiff Shavram is cultivating the land since last 25-30 years but as of Bataidar. In Para 13, he has again admitted that the plaintiff is cultivating the land of Nanda. D.W. 8 Deobai in Para 6 of her statement has specifically stated that after the death of her father, plaintiff Shavram has forcibly took possession of the land. In view of the aforesaid specific statement and the admission of the defendants, it is not in dispute that after the death of Nanda, plaintiff is in possession of the land. Since January, 1979 he is in possession over the land. lie must have reaped the crop of that year and at the time when he was preparing the land for the next crop by ploughing it, the suit was filed. Thereafter, all the Courts issued a temporary injunction order in his favour. Finding about possession has also been recorded in his favour. In these circumstance, it can very well be said that he is in settled possession of the land. Once a person is in settled possession, he is entitled to protect his possession by issuance of an injunction order in his favour. The Apex Court in Rame Gowda (supra), considering legal position held thus :
7. The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya v. Anil Panjwani, In between, to quote a few out of several, in Lallu Yeshwant Singh v. Rao Jagdish Singh, this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. The Court quoted with approval the law as stated by a Pull Bench of the Allahabad High Court in Yar Mohd. v. Lakshmi Das (AIR at P-4).
Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a Court. No person can be allowed to become a judge in his own cause." (AIR P. 5, Para 13).
In the oft-quoted case of Nair Service Society Ltd. v. K.C. Alexander, this Court held 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 all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The Court quoted Loft's maxim "Possession contra omnes valet praeter eur cui ius sit possessions (he that hath possession right against all but him that hath the very right)" and said : (AIR P. 1175, Para 20) A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to plaintiff's and thus be able to raise a presumption prior in time.
In MC. Chockalingam v. V. Manickavasagam, this Court held that the law forbids forcible dispossession, even with the best of the title. In Krishna Ram Mahale v. Shobha Venkat Rao, it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind v. Jagat Singh, this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averments of previous possession of the plaintiff and dispossession by the defendant.
8. It is thus clear that so far as the India 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 the 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.
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 v. Delhi Admn., Puran Singh v. State of Punjab and Ram Rattan v. State of Uttar Pradesh the authorities need not be multiplied. In Munshi Ram case, 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 reinstate himself provided he docs 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 case, 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" (SCC P. 527, Para 12):
(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 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.
17. In Second Appeal No. 228/90, Partap v. Bherusingh, (supra), the learned Judge of this Court also relied on Rame Gowda (supra), in similar circumstances and issued an injunction that the plaintiff be not dispossessed without following due process of law. In Nojibai (supra), learned Judge of this Court held thus :
4. The submission of the learned Counsel for the appellants, however, is that even if the plaintiffs are not entitled to declaration of their title, the concurrent finding that they were in actual possession of the land on the date of the suit should be sufficient to entitle them to a decree for permanent injunction. He has placed reliance on N.K. Allappa Setty v. M.V. Lakshminarayan Rao and 1978 MPWN Vol. 1 Note No. 169 Mathuralal v. Gulabbai and and Ors. to support the aforesaid claim. Law on this point is rather clear and does not need any serious or long discussion. A person in settled possession, even without a title is entitled to the protection of this Court so that rule of law continuous to govern the society even a lawful owner is not entitled to use force and thus evict a person in settled possession, cases relied upon by the learned Counsel for the appellants only advance the aforesaid legal philosophy. Under the circumstances, if the appellants are found to be in settled possession of the suit lands, the respondents would be restrained from using force against them and thus evict them forcibly. This is, however, not to say that the respondents cannot obtain the help of this Court, in appropriate proceedings and get a decree for eviction of the appellants from the suit land. The respondents would also be entitled to adopt any other available legal procedure for obtaining possession of the land.
18. The Balu (supra), learned Judge of this Court held thus :
5. Coming next to the question whether appellants are entitled to a decree of perpetual injunction against the respondents from forcibly interfering with or disturbing their possession over the suit lands, the respondents have been in settled possession of the suit land for a number of years. In Krishna Ram Mahale v. Shobha Venkat Rao while referring to earlier decisions on the point and the law on the subject, the Court observed as under:
It is well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh . this Court in that judgment cited with approval the well known passage from the leading Privy Council case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy 51 Ind App 293 at P. 299 : AIR 1924 PC 144, where it has been observed (P. 208) (of SCR) (at P. 622 of AIR):
In India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.
Nojibai wd/o Bala v. Udibai wd/o Onkarji (S.A. No. 151/76), the judgment and decree dated 16-8-1988, in similar circumstances, the Court granted permanent injunction directing the respondent not to obtain or disturb possession of the appellants of the suit lands by force. Shri M.S. Sahagal, learned Counsel conceded that appellants possession over the lands had to be protected and they could be evicted from the same only accordance with law.
6. Following the decisions, claim of the plaintiff/appellants for permanent injunction against the defendant/respondents is granted. The defendant/respondents are restrained from forcibly disturbing or interfering possession of the plaintiff/appellant over the suit lands, otherwise, the due course of law. This would not preclude the defendant/respondents from pursuing such legal remedies as may be available to them for obtaining possession of the suit-lands from the appellants and as they may be advised.
19. this Court has found that plaintiff is in settled possession since January, 1979, whose possession has been protected continuously by the Trial Court, First Appellate Court and in this appeal. It is not a case of the other side that plaintiff in the garb of temporary injunction order issued by the Court, has dispossessed the defendants or the defendants have been dispossessed during pendency of the suit and their possession may be restored under Section 144 of the Code of Civil Procedure. In India, the successful party cannot take forcible possession from the other side even he remains successful before the Court of law. Successful party has to take recourse of law for taking possession of the land. Plaintiff who is in possession of the land since near about 27 years cannot be dispossessed by the other side by the force or taking law in the hands. Plaintiff is entitled for a limited relief which he has prayed, that his possession may be protected by issuance of an injunction against the respondents. In this case, finding in respect of title has been recorded against the plaintiff, even in this appeal plaintiff has not pressed his relief in respect of declaration of title. The plaintiff's case in respect of title has been denied by all the Courts and substantial question of law No. 2 is not pressed in this appeal. Even then plaintiff is entitled to protect his possession over the lands by issuance of an injunction. However, respondents shall be free to take recourse of law for taking possession from the plaintiff.
20. In the result, this appeal is allowed in part. The suit of the plaintiff is decreed in part and a decree in following terms is passed in favour of the plaintiff:
Defendants shall not dispossess the plaintiff from the disputed lands without following due process of law.
In the peculiar facts of the case, there shall be not order as to costs.