Kerala High Court
Ishwara Bhat vs Annappa Naika on 30 January, 1997
Equivalent citations: AIR1997KER165, AIR 1997 KERALA 165, (1997) 1 CIVILCOURTC 401, (1997) 1 KER LJ 256, (1997) 3 LJR 192, (1997) 1 KER LT 420, (1997) 4 CURCC 263
JUDGMENT K.A. Mohamed Shafi, J.
1. The plaintiff in O. S. No. 284/82 on the file of the Munsiffs Court, Kasaragod whose prayer for declaration of title and permanent prohibitory injunction in respect of plaint A schedule properties is rejected by the trial court as well as the first appellate court, is the appellant herein. Though the plaint A schedule properties consisted of four items, since in the written statement the respondent-defendant stated that he has no dispute with regard to items 2 to 4 of the plaint A schedule properties and confined his contention with regard to item No. 1 of an extent of 42 cents comprises in R. S. No. 201/3 of Enmakaje Village, the parties are in issue only with regard to that item one of the plaint schedule properties. Though the appellant contended that the plaint A schedule properties form part and parcel of R. S. No. 20l/2, which was obtained by him on darkast from the Government, subsequently it is admitted by both sides that the disputed property is Government land. That item alone is the subject-matter in this appeal.
2. According to the appellant the properties in the possession of the appellant and the respondent are separated by a compound wall and the properties in the possession of the respondent are bounded by a very old compound wall adjoining the disputed property. According to him, he has been in possession of item No. 1 of plaint A schedule properties along with other properties and has effected valuable improvements in that property also.
3. The trial court found that the appellant was not in possession of item No. 1 of the plaint schedule properties and accordingly dismissed the suit by judgment and decree dated 29-8-1986. Though the trial court negatived the contention of the respondent that the suit is bad for non-joinder of the State, in appeal A. S. No. 135/86 preferred by the appellant against the judgment and decree of the trial court, the lower appellate court reversed the finding of the trial court that the suit is not bad for non-joinder of the State and held that the suit is bad for non-joinder of the State and dismissed the suit, even though it was found that the appellant was in possession of item No. 1 of plaint A schedule properties on the date of suit.
4. The counsel for the appellant vehemently argued that after finding that the appellant is in possession of item No. 1 of A schedule properties, the lower appellate court should have protected the possession of the appellant against the respondent from trespass, even if the appellant is not entitled to any .remedy against the State and that the dismissal of the suit for non-joinder of necessary parties is absolutely illegal.
5. Order I Rule 9 of C.P.C. deals with misjoinder and non-joinder of parties, which reads as follows:
"Misjoinder and non-joinder -- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party."
In this case though the disputed property belongs to the Government, absolutely no relief is claimed by the appellant against the Government. The appellant has only claimed injunction against the respondent in respect of trespass and obstruction of his peaceful enjoyment of the plaint A schedule properties.
6. The lower appellate court held that the appellant cannot claim his title on the basis of adverse possession and limitation and that plea can only be raised against the State since the property belongs to the State and therefore, the suit is liable to be dismissed for nonjoinder of the State.
7. It is pertinent to note that the entire pleadings and evidence adduced by the appellant in this case established that his -contention regarding adverse possession and limitation is against the respondent and not against the State, though the property belongs to the State. In the decision in V. M. Thaikkavupal v. Narayanan Purushan, (1991) 2 Ker LT 477 a single Judge is this Court after elaborate consideration of the decisions of the various High Courts, has held that:
"the owner of land is not a necessary party to the suit so long as none of the parties to the suit have claimed any right specifically against the owner."
I am in respectful agreement with the learned single Judge with regard to the position of law stated in that judgment Therefore, in the absence of any contention raised by the appellant against the State or claimed any relief against the State, it cannot be contended that the State is a necessary party in the above suit. Therefore, the, finding of the lower appellate court that State is a necessary party and the consequent dismissal of the suit on the ground of non-joinder of the State is not sustainable.
8. Even though the appellant had claimed declaration of title in respect of plaint A schedule properties, that contention was negatived by the trial court since the appellant had not adduced any evidence to establish his title in respect of the disputed property. That finding of the trial court is confirmed by the lower appellate Court. In the second appeal the counsel for the appellant confined his arguments with regard to the claim for injunction against the respondent on the basis of possession of the plaint schedule properties and he has not addressed any argument with regard to the concurrent finding of the courts before against the title in respect of plaint schedule item No. 1 set up by the appellant. Therefore, the fact that the appellant has no title to item No. I of the plaint schedule properties is established by the concurrent finding of the courts below and that fact is admitted by the appellant in this second appeal.
9. The important contention to be considered in this appeal is whether the appellant was in possession of the disputed property on the date of the suit.
10. In the book Tagore Law Lectures, 1897 -- the Law relating to Injunctions in India, 1988 Edition, the learned author Woodroffe has observed at page 226 as follows:
"Mere possession is good against all the world except the real owner, and is protected both by the Civil and Criminal Law. Possession is also prima facie proof of ownership, since men generally own the property which they possess. Where a person is in possession of land, the onus lies upon the prima facie trespasser to show that he is entitled to enter."
11. In the book 'A Treatise on the Law 'and Practice of Injunctions', by William Williamson Kerr 6th Edition, the learned author has observed at page 97 as follows :
"An action of treaspass is founded on possession, and in order to succeed, the plaintiff must show possession of the lands on which the acts complained of were committed, at the date of such acts. If possession be shown, the defendant is not at liberty to set up the title of a third party unless he justifies what he has done under a licence from such third party."
11A. In the book 'Law of Specific Relief by S. C. Banerjee, 9th Edition at page 41 it is observed as follows:
"The law has shown a constant solicitude to widen the distinction between legal and illegal possession, and to discourage the latter as much as possible. To permit a mere wrongdoer to take any advantage of his possession as a defendant, when that possession has been acquired by illegal means, would be tant amount to holding out a premium in favour of wrong and violence. Proof of prior possession in actions of ejectment raises a resumption of title, and as against a mere wrong-doer, prior possession, however short, is itself a title, possession in law is a substantive right or interest which exists, and has legal incidents and advantages apart from the true owner's title."
At pages 597 and 598 of the same book the learned author observed as follows:
"Where the allegation of the plaintiff is that he is in possession and that his possession is threatened to be interfered with by the defendant, he is entitled to sue for a mere injunction without adding a prayer for declaration of his right. Where plaintiffs possession is proved and even admitted by defendant who threatens to dispossess the plaintiff forcibly an injunction to restrain interference must issue as a matter of course. Plaintiffs possession need not be based on a matured title. On strength of his possession he can keep out all persons who have no better title. He is entitled to injunction against a defendant who has no better title than the plaintiff. But where the plaintiff is not' in possession he cannot be granted injunction or possession in a suit for injunction nor amendment can be allowed."
12. Section 6 of the Specific Relief Act provides for recovery of possession on the strength of his prior possession on dispossession by unlawful and illegal means and to such suits title to the property is not relevant. Settled possession though not founded on legal title, is recognised and protected by law as against all persons who do not have a better title than the plaintiff. In the decision in Sundar v. Parbati, (1890) ILR 12 Allahabad 51 the Privy Council observed as follows :
"Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interests opposing. !n these circumstances, it does not admit of doubt that they are entitled to maintain their possession against all comers except the heirs of Premsukh or of Baldeo Sahai one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants is in the filed, and the widows are therefore, each of them, an estate or interest in respect of her possession, which cannot be impaired by the circumstances that they may have ascribed their possession to one or more other titles which do not belong to them."
In the decision in Perry v. Clissold, (1907) AC 73 the Privy Council observed as follows ;
"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 process of law within the period prescribed by the provisions of the Statute of Limitation applicable to the case, his right is for ever extinguished, and the possessory owner acquire an absolute title."
13. In the decision in Ismail Ariff v. Mahomed Ghous (1893) ILR 20 Calcutta 834 the Privy Council observed as follows :
'The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Section 9 of the Specific Relief Act (Act I of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who was no title and is a mere wrong-doer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession."
14. In the decision in N. S. S. Ltd. v. Rev. Fr. Alexander, 1968 Ker LT 182 : (AIR 1968 SC 1165) the Supreme Court observed as follows Para 24 of AIR):
"In a case in which a plaintiff must rely upon his own illegality the Court may refuse him assistance. But there is the other proposition that if a plaintiff does not have to rely upon any such illegality, then althought the possession had begun in trespass a suit can be maintained for restitution of possession. Otherwise the opposit party can make unjust enrichment althought its own possession is wrongful against the claimant. It is to be noticed that the law regards possession with such favour that even against the rightful owner a suit by a trespasser is well-founded if he brings the suit within 6 months of dispossession. We have also shown that there is ample authority for the proposition that even after the expiry of these 6 months a suit can be maintained within 12 years to recover possession of which a person is deprived by one who is not an owner or has no authority from him."
15. In the decision in M. K. Setty v. M. V. L. Rao, AIR 1972 SC 2299 the Supreme Court observed as follows (Para 5):
"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 1947 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."
The above rulings of the apex Court establish that a person who is in possession even without titled is entitled to protect his possession of the property as against all persons who do not have a better titled than himself. After noticing the position of law as above, the next question to be considered is whether the appellant had been in settled possession of item No. 1 of the plaint schedule properties.
16. The trial Court after evaluation of the evidence on record found that the appellant was not in possession of the plaint schedule item No. I of the properties. The appellate Court though that the appellant was in possession of item No. 1 of the plaint schedule properties on the date of suit and the finding of the trial Court that he was not in possession of the property on the date of suit is erroneous, negatived the prayer for permanent prohibitory injunction made by the appellant on the ground that the injunction sought for by the appellant is a consequential relief on the main relief of declaration of title and in view of the finding of the appellate Court that the appellant is not entitled to get the declaration prayed for, he is not entitled to the injunction as prayed for in the plaint.
17. As already noted, though the appellant had set up title to item No. I of the plaint schedule properties in the plaint, during the trial he conceded that the property belongs to Government and he is only in possession and enjoyment of the same. It is true that the appellant has not adduced any documentary evidence to show that he is in actual possession of the disputed property as contended and it is admitted by P.W. 1 that the revenue receipts produced by him do not take in the disputed property. It is also admitted by P.W. 1 that the disputed property does not form part of the property obtained by him on darkhast in R.S. No. 201/3A and it is adjoining the darkhast property on the cast.
18. The appellant had taken out a commission to prepare a plan of the plaint schedule properties and report about the nature of enjoyment of the property. The Commissioner's report and plan are marked as Exts. C1 and C2 by the trial Court. In the report the Commissioner has stated that plaint schedule item No. 1 contains various valuable trees, one cashewnut tree aged about 40 to 50 years, one coconut tree aged about 7 years and about 75 pepper vines aged about two years, which were seen by him at time of inspection of the property on 1-5-1984. He has also reported that plaint schedule item No. 1 is mainly a forest growth reared and maintained and the plaintiff claimed that he has effected all the improvements and he has reared the forest growth. He has further stated that the growth of the forest looks different from the forest growth existing in R. S. No. 201/3A, which is the property admittedly in the possession of the respondent, bounded by compound walls on all sides aged about 20 years. He has further stated that practically there is no forest growth in R.S. No.201/3A. He has also stated that it seems all the trees in R.S. No. 201/3A have been cut and removed and some cashewnut trees and areca trees are existing in R.S. No. 201 / 3A. It is also stated by the Commissioner that R.S. No.201/3A is separated from plaint schedule item No. 1 by a mud compound wall. He has opined that R.S. No. 201/3B is part and parcel of R. S. No. 201/2. According to him, R.S. No. 201/2 is about 10 feet in lower level than R.S. No. 201 /3B and R.S. No. 201/ 3B is a sloping land containing the forest growth as stated by him. The Commissioner has also stated that on the northern side of R.S. No. 201/3B (plaint item No. 1) of Enmakaje village there is a water tank situated in R.S. No. 201/2 of Enmakaje Village. The channel starting from the tank T is marked as C in the plan prepared by him and a portion of the channel passed through R.S. No, 201/3B.
19. It is clear from the report and plan prepared by the Commissioner marked as Ext. C1 and Ext. C2 and the admission made by D.W. 1 that the property belonging to the respondent is enclosed by an old compound wall and the plaint schedule item No. 1 is outside the western compound wall of the property of the respondent. It is also clear from the report filed by the Commissioner that the nature and enjoyment of the adjoining property in the possession of the appellant on the western side of the disputed property and the property admittedly in the possession of the respondent on the eastern side of the disputed property enclosed within the compound wall, is different. Though the disputed property is about 10 feet higher in level than the property admittedly in the possession of the appellant comprised in R.S. No. 201/2, the Commissioner has noted that the channel leading from the tank T situated in the property on the north comprised in R.S. No. 202/2 in the possesisson of the appellant passes through a portion of the disputed property leading to south. The nature and He of the channel leading water from north to south though the disputed property is an important factor in favour of the appellant regarding enjoyment of the disputed property. Though the Commissioner has stated that there are 75 pepper vines aged about 2 years in plaint schedule item No. 1 similar to the pepper wines found in the property admittedly in the possession of the appellant, that fact is not of much importance since the Commissioner inspected the property only on 1-5-1984, about two years after the institution of the above suit and obtaining an order of interim injunction against the respondent. It is also pertinent to note that the Commissioner has stated in Ext. C1 report that piaint schedule item No. 1 is part and parcel of the appellant's property, without giving any further details with regard to that statement. That opinion made by the Commissioner after inspecting the property also should be considered along with the other pieces of evidence available on record. From a careful perusal of the observations made by the Commissioner in Ext. C1 with regard to the enjoyment of the disputed property and the evidence given by P.W. 1 and D.W. 1 in this case, it is clear that the appellant has been in possession and enjoyment of plaint schedule item No. I of the properties on the date of the suit. The appellate Court rightly found that the appellant was in possession of item No. 1 of the plaint schedule properties on the date of the suit, in reversal of the finding of the trial Court that the appellant was not in possession of plaint schedule item No. 1 of the properties.
20. In view of the fact that the appellant is found to be in possession of item No. 1 of the plaint schedule properties, on the basis of the correct position of law discussed by me in the preceding paragraphs of this judgment, the appellant is entitled to a decree for permanent prohibitory injunction against the respondent from trespassing upon that property and interfering with his peaceful possession and enjoyment of the same, even though he is not entitled to declaration of title as prayed for in the suit since he has failed to establish his title to the property. The appellate Court was in error in rejecting the prayer for injunction after finding that the appellant was in possession of the disputed property on the date of the suit, on the ground that since the appellant is not entitled to declaration of title sought for, he is not entitled to the consequential relief of injunction prayed for In this case. As it is settled law that even if the plaintiff is not entitled to declaration of title prayed for by him, he is entitled to protect his possession against trespass as against any person who does not have a better title. Hence the appellant is entitled to the injunction prayed for against the respondent who has not claimed any title to the disputed property.
21. Therefore, the appeal is allowed. In reversal of the judgment and decree passed by the Courts below the suit is decreed for permanent prohibitory injunction against the respondent in respect of item No. 1 of the plaint schedule properties. The judgment and decree passed by the Courts below rejecting the prayer for declaration of title made by the appellant is confirmed. The parties are directed to bear their respective costs in this Second Appeal.