W.P. No.8720.11 Writ Petition No. 8720 of 2011 (Dr. S. C. Jethi v. Shailendra Kumar Sharma) 02/11/2011 Shri M. S. Bhatti, learned counsel for the petitioner. Shri Anand Patel, learned counsel for the respondent. Heard. Order dated 29-03-2011 passed by 15 th Additional District Judge (Fast Track Court) Jabalpur, is being challenged in this petition under Article 227 of the Constitution of India. By impugned order a appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure, 1908, preferred by respondent-defendant against the order of injunction passed by Civil Judge Class-I, Jabalpur, has been allowed. Petitioner, a child specialist, has a clinic at Shop N. 1, Ghamapur Chowk, Jabalpur, in capacity of tenant since 1988. The respondent-defendant is the owner of said shop. On 7 th May, 2010, when the plaintiff had gone to Pune to visit his daughter, a fire broke out in the shop in the intervening night of 7 th and 8 th May, 2010. Petitioner came back on 12-05-2010 when he found that the respondent- defendant had put a lock over it. The petitioner was thus denied the access to shop. On 14-05-2010 he W.P. No.8720.11 wrote a letter to the respondent-defendant, the text whereof is in following terms : “Jheku 'kekZth] tSlk vkils esjh dy ckr gqbZ gS eSaus vkidks fdjk;k ebZ 2010 rd ns fn;k gSA tSlk vkidks fofnr gS esjs lkFk dkQh cMk gknlk gqvk gSA eSa pkgrk gwW fd bl tys lkeku ls eq>s esjs dke dk lkeku fudkyus gsrq vki pkch ns nsaA tc gekjk vkids lkFk settlement gks tk;sxk ge vkidks possession ns nsaxsA /kU;oknA”” The petitioner since was declined the access, he filed a suit for declaration and permanent injunction, that he is a lawful tenant and to restrain the defendant from dispossessing and allow him to continue the clinic. An application under Order 39 Rule 1 and 2, C.P.C. was also filed for interim injunction. Application for interim injunction was opposed by respondent-defendant. Trial Court on the basis of the material on record and treating the petitioner to be in a settled possession, as no material were brought on record by the respondent- defendant that the possession of shop was tendered to him, injuncted the respondent-respondent from causing any hindrance in running the clinic, by order dated 08-07-2010. Aggrieved, respondent-defendant preferred an appeal under Order 43 Rule 1 (r), C.P.C. The Appellate Court drawing an inference from the letter dated 14-05-2010, that the petitioner/plaintiff was not in possession of the shop in question, reversed the order passed by trial Court. Aggrieved, the plaintiff is before this Court. Petitioner contends that the Appellate Court failed to W.P. No.8720.11 appreciate the fact that the respondent-defendant taking advantage of the fire which broke out in the shop in his absence had put his own lock. This act of he respondent- defendant, learned counsel for the petitioner submits, has been misconstrued as if the respondent-defendant was placed in possession of the disputed shop It is urged that material irregularity has crept in the decision by the Appellate Court, therefore, the order impugned is liable to be set aside. The respondent-defendant on its turn defends the appellate order. Though it is urged that, he is in lawful possession of the shop in question; however, the respondent-defendant failed to bring any material on record to substantiate that the shop in question came to his possession in lawful manner. On the contrary the facts as brought on record suggests the different theory that taking advantage of fire, a lock seems to have been put by the respondent-defendant to assert his possession. The concept of settled possession has come to take a rest in India. In Rame Gowda (D) by Lrs. v. M. Varadappa Naidu (D) by Lrs. & another : (2004) 1 SCC 769, relying on catena of decisions it has been held by the Supreme Court : “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 Vs. Delhi Admn. Puran Singh Vs. The State of Punjab and Ram Rattan Vs. State of U. P. The authorities need not be multiplied. In Munshi Ram's case W.P. No.8720.11 (supra), 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 re-instate himself provided he does 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's 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 true W.P. No.8720.11 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.” In the case at hand the Appellate Court failed to appreciate true facts in right perspective. That though there is no material on record suggesting a peaceful handing over of the possession of the shop to the owner or that the possession has been taken in due course of law, Appellate Court misconstrued the letter dated 14-05-2010 and erred in holding that the defendant was in settled possession. In view of above and given facts of present case, the impugned order dated 29-03-2011 passed in Appeal is not tenable and, therefore, quashed. The order passed by trial Court on 08-07-2010 is revived. The petition is allowed to the extent above. No costs. (SANJAY YADAV) JUDGE SC