Suit:
Suit claiming possessory title – Based on settled possession for a number of years – Alleging that he was wrongfully dispossessed by defendants – No document to prove his possession – Defendants relied on two sale deeds (one executed by original owner to the predecessor-in-interest of defendant No.1 and another by predecessor-in-interest of defendant No.1 to defendant No.1) – Trial court decreed the suit – First appellate court dismissed the suit on the ground that the defendants had proved their title and possession over the suit property – High Court, in second appeal, reversing order of first appellate court, decreed the suit – Review petition also dismissed – On appeal, held: In order to prove possessory title, settled/established possession is required to be proved – Settled possession means possession which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner – Settled possession must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment by the trespasser – The possession should contain an element of animus possidendi – Occupation of the property as an agent or a servant at the instance of owner will not amount to actual legal possession – The nature of possession of trespasser is to be decided based on the facts and circumstances of each case – A casual act of possession or stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by true owner even by using necessary force – In the present case, no material is found to show that the plaintiff was in actual possession much less continuous possession for a long period which could be called settled possession – Defendant No.1 has proved his title and possession since the date of his purchase of the property – High Court was not justified in interfering with the finding of facts recorded by first appellate court – Suit stands dismissed – Possession. Allowing the appeal, the Court
HELD: 1. The First Appellate Court being the final court of fact, on due appreciation of the entire material on record, gave a definite finding that the Trial Court was not justified in decreeing the suit, and observed that predecessor-in-interest of the defendants was in possession of the property in question even prior to 1966, and had sold the same through registered sale deed in June 1966 vide Ex. A-2. This sale deed shows the measurement of the land, which corresponds to the plots in question approximately. The judgment of the First Appellate Court reveals that the Municipality had let out only three plots to the Jagirdar (original owner), and those three plots together measured 32 x 66 hands (unit of measurement). Thus, each plot measured 32 x 22 hands. These were numbered as Plot No. 4, Plot No. 5 and Plot No. 7. The disputed site is Plot No. 7. It is also relevant that sanction for constructing the house was given to predecessor-in-interest of defendants in the year 1957. Obviously, such sanction would have been accorded only on the basis of title and possession of the property. The official record (survey map), Ex.14, which relates to the plot in question, i.e., Plot No.7, reveals that it was owned by Defendant No.1. [Paras 6, 7][676-G-H; 677-A-B]
2. A person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. 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. 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. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case. [Para 13][679-G-H; 680-A-B]
3. In order to prove possession of the property, the plaintiff relied upon the rent note Ex. 1, which shows that the plot in question was let out by the plaintiff in the year 1967. On 12.05.1967, a fire broke out and the entire fodder stored on the plot got burnt. Thereafter, the plot was kept vacant. DW-7, who has been referred to in order to establish spreading of the fire, stated that the fire started due to sparks coming from a railway engine. But there was no railway line adjacent to the disputed land which could have caused a fire. Even otherwise, the rent note Ex. 1 does not refer to the plot in question, and its boundaries have also not been mentioned. Merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession. [Para 15][680-D-F]
4. No material is found to show that the plaintiff/Respondent No. 1 was in actual possession, much less continuous possession, of the property for a longer period which may be called settled possession or established possession. Mere casual possession, that too relying on a motor vehicle body lying on a part of the property, would not prove settled possession of the plaintiff. [Para 16][680-G-H; 681-A]
5. The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant. Even otherwise, there is no confusion at all regarding the identity of the property in question and on the basis of material on record, the First Appellate Court has correctly ruled that the appellant/Defendant No. 1 has proved his title and possession over the suit property since the date of his purchase of the property. Prior to the purchase, his predecessor-in-interest was in possession of the same. [Para 17][681-B]
6. Generally, it is not open to the High Court to interfere with the findings of fact recorded by the First Appellate Court when such findings are based on the evidence on record, and are not perverse or against the material on record.The High Court was not justified in interfering with the judgment of the First Appellate Court, which has come down very heavily on the procedure adopted by the trial Judge in deciding the matter, more particularly when no fault can be found on facts with the judgment of the First Appellate Court. [Para 18][681-C-E]
7. The conclusion arrived at by the High Court and the reasons assigned for the same are not correct inasmuch as there is absolutely no material in favour of the case of the plaintiff to show possessory title. In order to claim possessory title, the plaintiff will have to prove his own case, and also will have to show that he has better title than any other person. Since there is no documentary proof that the plaintiff was in possession of the suit property, that too for a long period, he cannot be allowed to succeed based on minor discrepancies in the evidence of the defendants. [Para 19][681-E-F]
Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy AIR 1924 PC 144; NairService Society Ltd. v. K.C. Alexander AIR 1968 SC 1165; Rame Gowda (dead)
by Lrs. v. M. Varadappa Naidu (dead) by Lrs. and another (2004) 1 SCC 769 : [2003] 6 Suppl. SCR 850 – referred to.
Salmond on Jurisprudence (12 Edn. at paras 59-60) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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