Orissa High Court
Panchabati Ramachandra vs Satyabhama Devi And Ors. on 21 April, 1970
Equivalent citations: AIR 1971 ORISSA 135
JUDGMENT B.K. Patra, J.
1-5. Several witnesses were examined and a large number of documents were brought on record by the parties in support of their respective cases. On an exhaustive consideration of the same, the learned Munsif recorded the following findings:--
(1) Plaintiff No. 1 is the legally married wife of Laxminarayan and plaintiffs Nos. 2 and 3 are Laxminarayan's issues through plaintiff No. 1.
(2) Satyanarayan is civilly dead and consequently the plaintiffs are successors-in-interest of late Sia Sukumari.
(3) Sia Sukumari never contracted to sell the disputed lands to defendant No. 2. The deeds of agreement Exhibits M and M-l said to have been executed by him in favour of defendant No. 2 are spurious documents.
(4) Defendant No. 2 might have possessed the suit lands as a lessee from Sia Sukumari for three years, but she did not possess the lands thereafter. So far as defendant No. 1 is concerned, he never possessed the 'Ga' schedule land situated in mouza Bharatipur, but got possession of the 'Kha' schedule land situated in mouza Alikia and remained in possession for about 4 to 5 years before the institution of the suit. Before that, it is the plaintiffs who were in possession of the 'Kha' schedule land. So far as 'Ga' schedule land is concerned, the plaintiffs alone have been in possession thereof since after the death of Sia Sukumari. None of the defendants therefore acquired any title to the suit lands by adverse possession and the suit is therefore not barred by time. The rent receipts, the Pattas and Kabuliyats produced by defendants to prove possession are spurious ones.
(5) Ext. C the deed of agreement to sell and Ext. G the sale deed said to have been executed by defendant No. 2 in favour of defendant No. 1 in respect of the suit lands are not genuine nor are they for consideration, and assuming that they are genuine, defendant No. 1 has not acquired any title to the suit properties as his vendor defendant No. 2 had no title.
(6) Service of summons on the defendants in O. S. No. 17 of 1956 was fraudulently suppressed. The plaintiffs who are the successors-in-interest of Sia Sukumari having not been impleaded in that suit, they are not bound by the decree obtained by defendant No. I there. Plaintiff's claim in the present suit therefore is not barred by res judicata.
(7) Although in the present litigation, plaintiffs Nos. 1 to 3 are interested only in 'Ga' schedule land and their vendees plaintiffs Nos. 4 to 6 in 'Kha' schedule land, the suit is not bad for multifariousness of causes of action as plaintiffs Nos. 4 to 6 claim the properties through plaintiffs Nos. 1 to 3 as transferees from them.
(8) Satyanarayan having attained civil death is not a necessary party to the suit.
(9) The transfer of 'Kha' schedule land by plaintiffs Nos. 1 to 3 in favour of plaintiffs Nos. 4 to 6 is valid.
6. In view of these findings, the learned Munsif decreed the suit in favour of the plaintiffs. Defendant No. 1 filed an appeal and the learned Subordinate Judge practically upheld the findings given by the learned Munsif and dismissed the appeal. Regarding possession of the disputed lands, he gave a clear finding to the effect that plaintiffs Nos. 1 to 3 are in possession of Bharatpur lands (Schedule 'Ga') ever since the death of Sia Sukumari and that defendant No. 1 is possessing the Alikia lands (Sch. 'Kha' only) after the termination of Misc. Case No. 42 of 1958 in his favour and prior to that the plaintiffs were possessing the same. Against that decision, defendant No. 1 has filed the present second appeal,
7. In view of the findings of the Courts below on the questions of fact referred to above, Mr. L. K. Dasgupta learned Advocate appearing for the appellant did not make any attempt to assail them. He concentrated his attack on a point which is not to be found in the pleadings of the parties but which has been raised for the first time in this appeal. It was elicited from P.W. 11 that late Sia Sukumari had dedicated all his properties including the suit lands in favour of the deity Sri Nrusinghanath Deb and that P.W. 11 and some others including late Sia Sukumari were appointed as trustees to manage the said properties. This was evidenced by a registered deed dated 6-1-3943, the certified copy of which is filed and marked Ext. 8. It further transpires from the evidence of P.W. 11 that the trustees managed the properties for 6 to 7 years and then relinquished the same in favour of Sia Sukumari by a registered deed, the certified copy of which is Ext. 9. Ext. 9 shows that the properties were returned to Sia Sukumari not in his individual capacity but as one of the trustees of the deity. It is therefore contended by Mr. Dasgupta that the disputed properties are trust properties belonging to the deity Sri Nrusinghanath Deb and that consequently the deity is a necessary party to the suit, and this not having been done, the suit is bad for non-joinder of parties. It is remarkable that this contention is not to be found in the pleadings and naturally there was no issue on this point. On the other hand, each of the contesting parties claimed the lands as belonging to him personally. It is therefore not permissible for the appellant to raise an issue based purely on facts for the first time in second appeal. Assuming for a moment that the properties in the suit do belong to the deity, it appears to me that the plaintiffs can succeed on the basis of their possessory title. The finding regarding Bharatpur lands is that plaintiffs Nos. 1 to 3 have been in possession thereof throughout since after the death of Sia Sukumari and the finding regarding Alikia land is that the plaintiffs were in possession thereof till the institution of the 145, Cr. P. C. proceeding (Misc. Case No. 42/58) and that since the disposal of the same, defendant No. 1 is possessing the lands. Thus, so far as Bharatpur lands are concerned, there is no dispossession at all and the suit is brought by one who is in possession against a person who merely threatens to disturb his possession and who has no manner of title to the property. So far as Alikia lands are concerned, the suit is by one who was in "possession before he was dispossessed more than six months prior to the institution of the suit by a person who has no title thereto. The question for decision therefore is whether in a suit for declaration of title and recovery of possession filed beyond six months from the date of dispossession, the plaintiffs can merely on the strength of their prior possession which has not extended for the full statutory period and ripened into an absolute title, recover possession from the defendant who is a mere trespasser and who has no title.
If a person is dispossessed of immoveable property otherwise than in due course of law he has a summary remedy under Section 9 of the Specific Relief Act for recovery of possession notwithstanding any title. If a suit is brought under this section within six months from the date of dispossession, all that the plaintiff has to prove to entitle him to a decree is previous possession. He has neither to allege nor to prove his title. If the suit is not brought until after six months from the date of dispossession, the question is whether the plaintiff can recover the property on the strength merely of his previous possession or it is necessary that in order to succeed he should also prove his title. On this point, there is a conflict of decision between the High Courts of Bombay, Allahabad, Madras and Patna on the one hand and the High Court of Calcutta on the other. According to the Bombay, Allahabad, Madras and Patna High Courts, the plaintiff is entitled to succeed if he proves his previous possession. It is not necessary for him either to allege or to prove his title. According to the Calcutta view, a plaintiff is not entitled to succeed if he merely proves his previous possession because for the plaintiff to succeed he has to allege and prove his title at least the possessory title, that is possession for 12 years. Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership. Even before the acquisition of statutory title by adverse possession for the requisite period under the Limitation Act, the possessory owner has well defined rights in property. It is now settled beyond all dispute that this interest is heritable, devisable and transferable. This interest is referred to as possessory title as distinct from proprietary title. A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself. This is also the position in English law. Salmond on Jurisprudence, 11th Edition observes at page 345:
"In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself."
and at pages 473 and 474 it is observed:
"If a possessory owner is wrongfully 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 he set up as a defence the title of the true owner the jus tertii as it is called; the plaintiff has a better, because 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."
This principle is recognised in Ismail Ariff v. Mohemad Ghouse, (1893) 20 Ind. App. 99 (PC). Following this decision a learned Single Judge of this Court in Gadadhar Sahu v. Karsanbasta Patel, ILR (1963) Cut 482, a case where the plaintiff brought the suit for permanent injunction not on the basis of title but on that of long possession and the defendants relied upon their title and possession, held-
"The position of law is now well-settled that a person in possession of land without title has an interest in the property which is heritable and good against all the world excepting the true owner. This interest, unless the true owner interferes, is transferable. This is based on the principle enacted in Section 110 of the Evidence Act which lays down that when the question is whether he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
XX XX XX . .... even independently of Section 9 of the Specific Relief Act, plaintiff can on the strength of his possessory title recover possession from a rank trespasser."
It is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and his possession was invaded or threatened to be invaded by a person who had no title whatever. Lawful possession does not mean that there must be a semblance of title to make the possession lawful though the title is not proved conclusively. A person in possession of land without title has an interest in property which is heritable and good against all the world excepting the true owner. The prior possession of a plaintiff vis-a-vis the trespasser would be lawful.
8. Applying these principles to the facts of the present case and assuming that the plaintiff have no title to the disputed properties, plaintiffs Nos. 1 to 3 who are in possession of the 'Ga' schedule lands in mouza Bharatpur are entitled to an order confirming their possession and permanently restraining defendant No. 1 who has no manner of title to the properties from interfering with such possession. Likewise, plaintiffs Nos. 4 to 6 who are shown to have prior possession of the Alikia lands mentioned in 'Kha' schedule are entitled to recover possession of these lands from defendant No. 1 who himself has no title to the lands but has obtained possession of the same only since 1958. These are the reliefs which were granted to the plaintiff-respondents in this case and, in my opinion, rightly.
9. In the result, the appeal fails and is dismissed with costs.