Karnataka High Court
Raghavendra Rao vs Dodda Ramalingappa on 1 April, 1987
Equivalent citations: ILR1988KAR215, 1988(1)KARLJ181
JUDGMENT K.A. Swami, J.
1. This appeal by the plaintiff is preferred against the judgment and decree dated 31-3-1977 passed by the Civil Judge, Raichur, in R.A.No. 121 of 1975 affirming the decree dated 28-8-1975 passed by the Munsiff, Raichur, in O.S.No. 144 of 1973.
2. The appellant filed the aforesaid suit for a permanent injunction restraining the defendants - respondents from interfering with his peaceful possession of the land bearing Survey No. 322 measuring 18 acres 19 guntas assessed at Rs. 25-72 situated at Kadlur Village, Raichur Taluk, extending up to the public road towards south. The plaintiff's case was that he was the owner in possession of the land bearing S.No. 322. The further case of the plaintiff was that the defendants disputed the possession of the suit land to the extent of 1 acre 5 guntas abutting the road on the south. The defendants resisted the suit. On the basis of the pleadings the trial Court framed the following issues:
"(1) Whether the plaintiff proves that he is in lawful possession of the entire suit schedule land?
(2) Is he entitled to the injunction sought for?
(3) To what reliefs the parties are entitled?"
The trial Court answered Issues 1 and 2 in the negative and accordingly dismissed the suit. In the appeal, the lower appellate Court raised the following points for determination :
"(1) Whether the plaintiff-appellant proves his lawful possession of the disputed portion, namely, the suit land measuring 1 acre 5 guntas as alleged by the plaintiff?
(2) Whether lower Court's judgment and decree are justified to be interfered with as challenged?"
It also answered both the points in the negative. Consequently, it affirmed the decree of the trial Court.
3. Having regard to the contentions urged on both sides, the following point arises for consideration :
Having regard to the finding recorded by the lower appellate Court that the plaintiff is in possession of an extent of 1 acre 5 guntas abutting the road towards the south and the said area forms part of the land S.No. 317 belonging to the defendants, whether the courts below are justified in refusing to grant a decree for permanent injunction to protect the possession of the plaintiff.
4. The lower appellate Court has recorded a finding that 1 acre 5 guntas in question does not form part of Survey No. 322 belonging to the plaintiff, but it forms part of S.No. 317 belonging to the defendants and as such, they are the owners of the disputed area measuring 1 acre 5 guntas. It has also further held that as the possession of the plaintiff is not lawful, he is not entitled to a decree for permanent injunction as against the defendants who are the true owners of the disputed portion of the land measuring 1 acre 5 guntas abutting the road in question.
5. On the basis of the aforesaid findings recorded by the lower appellate Court, Sri Jayavittal Kolar, learned Counsel for the appellant, submits that as it is not permissible for the defendants, even if they are the owners, to take law into their hands and forcibly dispossess the plaintiff, the possession of the plaintiff requires to be protected and that the injunction sought by the plaintiff is in reality not to protect the possession of the plaintiff, but in effect to prevent the defendants from resorting to illegal means to forcibly dispossess the plaintiff. Learned Counsel places reliance on a decision of the High Court of Kerala in KARTHIYAYANI AMMA v. GOVINDAN, a Division Bench decision of this Court in PATIL EXHIBITORS (P) LTD. v. CORPORATION OF THE CITY OF BANGALORE, and also another decision of this Court in MALLAWWA v. BALAPPA, 1983(1) KLC 154.
6. On the contrary, it is contended by Sri. Raikote, learned Counsel appearing for the respondents, that when it is found that the plaintiff has no title to the suit property and his possession is held to be an illegal possession and the defendants are held to be the owners of the disputed portion of the land, the plaintiff is not entitled to a decree for permanent injunction against the true owners because he has no better title than the defendants. Hence, the decree passed by the lower appellate Court does not call for interference. Learned Counsel has also further submitted that the aforesaid three decisions relied on by the learned Counsel for the appellant, are not on the point whereas a decision of this Court in K.V. NARAYAN v.SHARANA GOWDA, is on the point wherein it is held that a trespasser is not entitled to an injunction against a true owner.
7. The correctness of the findings of fact recorded by the lower appellate Court are not challenged before me, The findings of fact recorded by the lower appellate Court are: 1 acre 5 guntas in question forms part of S.No. 317 and it belongs to the defendants. It does not belong to the plaintiff and it does not form part of S.No. 322, which belongs to the plaintiff. It is also further held by the lower appellate Court that the plaintiff has failed to prove that he was in possession of the disputed portion of the land since more than 50 years. It has also further found that there are no bunds or boundary marks in between the lands of the plaintiffs and the defendants i.e., S.No. 317 and 322. The cart track pleaded cannot be taken as the defendant's boundary between R.S.No. 317 and 322 as the cart track has been changing. In view of the aforesaid findings, the Courts below have rightly held that the possession of the plaintiff is not lav ful and the defendants have better title than that of the plaintiff because they are held to be the owners of the disputed portion of the land.
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4. 8.1 In Nair Service Society Ltd. v. K.C. Alexander and Others, the Supreme Court was concerned with a suit which was filed on the basis of possessory title. The dispute was between the two trespassers. The owner was a third person i.e., the State. It was not made a party to the suit. In between the two trespassers, the trespasser in possession was found to have better title i.e., possessory title, than the trespasser out of possession. That was not a case in which an injunction was sought and granted against a true owner. Even in this decision, the Supreme Court approved the decision of the Privy Council in Perry v. Clissold, 1907 AC 73 and affirmed the principle that possession is good againt all but the true owner. The relevant portions of the Judgment are as follows:
"17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73 discover if the principle that possession is good against all but the true owner has in any way been departed from 1907 AC 73 reaffired the principle by stating quite clearly:
"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 even extinguished and the possessory owner acquires an absolute title."
Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. As this was a suit of latter kind, title could be examined. But whose title? Admittedly neither side could establish title. The plaintiff at least pleaded the statute of limitation and asserted that he had perfected his title by adverse possession. But as he did not joint the State in his suit to get a declaration, he may be said to have not rested his case on an acquired title. His suit was thus limited to recovering possession from one who had trespassed against him. The enquiry thus narrows to this: did the society have any title in itself or was it acting under authority express or implied of the true owner or was it just pleading a title in a third party? To the first two questions we find no difficulty in furnishing an answer. It is clearly in the negative. So the only question is whether the defendant could plead that the title was in the State? Since in every such case between trespassers, the title must be outstanding in a third party a defendant will be placed in a position of dominance. He has only to evict the prior trespassers and sit pretty pleading that the title is in someone else. As Erle J. put it in Burling V.Read (1848) 11 OB 904 parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut and occupying it before morning. This will be subversive of the fundamental doctrine which was accepted always and was reaffirmed in 1907 AC 73. The law does not therefore countenance the doctrine of findings keepings.
22. The cases of the Judicial Committee are not binding on us but we approve of the dictum in 1907 AC 73. No sub sequent 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 945 and (1865) 1 QB 1 but it must be taken to be finally resolved by 1907 AC 73. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in 1907 AC 73 and may be taken to be declaratory of the law in India. We hold that the suit was maintainable."
8.2 Again in M. Kallappa Setty v. M.V. Lakshmi Narayana Rao, the Supreme Court reversed the Judgment of the High Court on recording a finding that the plaintiff had better title than the defendant. Accordingly, injunction was granted. The relevant portion of the Judgment is as follows:
"So far as the question of possession is concerned, as mentioned earlier, both the trial Court and the first appellate Court have accepted the plaintiff's case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial Court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1974 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the High Court was not right in interfering with the judgment of the trial Court as affirmed by the first appellate court regarding relief No. 2"
These two decisions are interpreted by the High Court of Kerala in Karthiyayani Amma v. Govindan, as laying down the law that a person in possession is entitled to an order of injunction irrespective of the fact whether he is in lawful possession or in unlawful possession and whether or not the defendants resisting the suit are true owners or persons having better title than the plaintiff. The decision in Karthiyayani Amma's case, has been considered by this Court in K.V. Narayana v. Sharana Gowda, and it has been dissented to. It has been held by this Court that a trespasser is not entitled to an order of temporary injunction "as against a true owner. It is also further held that a person having a possessory title can maintain a suit for possession against another person who has no better title than himself. Such a possessory title will not be available as against a true owner of the property. This is the proposition that has been laid down by the Supreme Court in the aforesaid two decisions which in the case of Karthiyayani Amma v. Govindan, has been interpreted as laying down that even an illegal possession can also be protected against a true owner! Therefore, it is not possible to hold that the decision in Karthiyayani Amma's case, lays down the law correctly.
9. In Mallawwa v. Balappa, 1983(1) KLC 154 this Court came to the conclusion that when the plaintiff was in possession of the suit property, the Court should not hazard a guess on the question of title inter se, but should leave it to be separately fought out. This Court came to the conclusion that the possession of the plaintiff was not shown to be unlawful. The relevant portion of the Judgment is as follows:
"Having carefully considered the issues involved in the light of the facts found I am of the view that the question of title will have to be kept open but without denying the plaintiff's claim for an injunction. This is in view of the fact that she has been in possession of the property and there is nothing on record to show that she had gained possession by any unfair means just prior to the suit."
Therefore, it is also not possible to hold that in Mallawwa's case this Court granted injunction in favour of the plaintiff whose possession was found to be unlawful.
10. Lastly, the decision in Patil Exhibitors (P) Ltd. v. Corporation of the City of Bangalore, was relied upon by the learned Counsel for the appellant. The relevant portions of the Judgment are found in paragraphs 9 to 11 which are as follows:
"9. There are three aspects to the matter. First is that though the possession of a quondam-lessee, who continues in possession without there being a bi-lateral, consensual act of holding-over is not "lawful possession" but is merely "juridical possession", however, the landlord with the best of title cannot resort to forcible dispossession. Law in India does not recognise in the landlord a right of extra judicial reentry.
Sri Vasantha Kumar urged that it was the statutory duty of the tenant to surrender possession after the termination of the lease and that where public properties are concerned, the occupants take unfair advantage of the proverbia slowness of the Governmental-machinery, and resort to legal manoeuvres in pursuit of unjust gains and that as a result public-interest suffers. This might be true; but that is no justification on the part of any person, more so a Governmental-authority, to resort to forcible dispossession. The remedy lies in the Respondent taking vigilant and appropriate steps at law to protect its interest.
The tenant, on the expiry of the lease, as urged by Sri Vasantha Kumar, may not be in "lawful possession"; but the tenant's possession in such a situation is "juridical possession" and such a possession is protected by law against wrongful dispossession though 'juridical' possession cannot always be equated with 'lawful possession'.
In M.C. Chockalingam & Others v. V. Manickavasagam & others the Supreme Court while holding that a tenant on the expiry of the lease cannot be said to continue in "lawful possession" of the property if such a possession is not otherwise statutorily protected, however, observed :
"......Section 6 of the Specific Relief Act does not offer such protection, but only, as stated earlier, forbids forcible dispossession, even with the best of title."
"Lawful possession is not litigious possession and must have some foundation in a legal right to possession of the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed from it.
We are clearly of opinion that juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.
There can, thus, be no forcible dispossession of a person who had such juridical possession and the landlord can be restrained from resorting to high-handed acts aimed at forcible dispossession, otherwise than in accordance with law.
10. The second aspect is this. It is part of the concept of "Rule of Law" that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognised or countenanced by Courts. Such a right in the Respondent cannot be recognised regardless of the question whether or not the appellant itself has any subsisting right to remain in possession. The protection that the Court affords is not of the possession - which in the circumstances is litigious possession and cannot be equated with lawful possession - but a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title there can be no forcible dispossession.
11. This, in itself, is sufficient to support appellant's present prayer. However, there is yet a third ground on which the prayer becomes supportable. That ground is particular to the circumstances that respondent in this case is a governmental authority. The third aspect is an incident of public law and stems from the secondary meaning of "Rule of Law" which requires that Government should be conducted within the framework of recognised rules and principles which restrict discretionary power. Indeed the expression "Rule of Law" has a number of different meanings and connotations. The primary concept is that every thing must be done according to law. Applied to the powers of governmental authorities, this requires that every governmental authority which does some act affecting any person must be able to justify its actions as strictly authorised by law. The intensive, pluralist, Welfare State is, in the last analysis, a "service corporation". Its manifold functions cannot be carried on without a great deal of discretion. But all exertions of Governmental power must be shown to have a strictly "legal pedegree". The affected person can resort to Courts of law if the legal foundation of the action is not perfectly in order Courts restrain the offending party Quia-Timet. ln Mohanlal v. The State of Punjab (CA No. 1024 of 1967 dated 25-11-1969) Supreme Court observed :-
"Mr. Keswani, learned counsel for the Gram Panchayat contended that as the High Court has come to the conclusion that the appellants are in unauthorised occupation of the suit properties, they are not entitled to invoke the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This contention has no merit. Under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. This is the essence of the rule of law."
From the aforesaid decision it is clear that the Division Bench considered only the lawful possession and juridical possession. It was not called upon to decide as to protection of illegal possession against true owner. There is undoubtedly a difference between a lawful possession, juridical possession and illegal possession. The aforesaid decision deals with the first two categories. Therefore, the said decision cannot be read as laying down the law that even an illegal possession can also be protected against the true owner. This position of law has been clearly stated by the Supreme Court in Nair Service Society case, to which a detailed reference has already been made. It has been held by the Supreme Court that the principle is that possession is good against all but the true owner. Therefore, I am of the view that as the plaintiff has been found to be in unlawful possession of the disputed portion of the land which is of the ownership of defendants, the lower appellate Court has rightly refused to grant the decree and dismissed the appeal. Accordingly the point raised for determination's answered in the affirmative and in favour of the respondents-defendants.
11. For the reasons stated above, the appeal fails and the same is dismissed.