IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 78 of 2001 Reserved on: 28.2.2011 Date of decision: 3.3.2011 Ajay Kumar & ors. …. Appellants Versus Chanchala Devi & ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? Yes For the appellants: Sh.T.S.Chauhan, Advocate. For the respondents: Sh.R.K.Gautam, Sr.Advocate with Sh.Mehar Chand, Advocate. _________________________________________________ Deepak Gupta, J. This Regular Second Appeal by the defendant is directed against the judgment and decree dated 11.1.2001 passed by the learned Additional District Judge, Kangra at Dharamshala, Camp at Una in Civil Appeal No.81 of 1994 whereby he dismissed the appeal filed by the appellants (hereinafter referred to as the ‘defendants) and confirmed the judgment and decree dated 2 29.4.1994 passed by the learned Sub Judge, 1st Class (I), Amb, District Una in Civil Suit No.72 of 1986 decreeing the suit of the plaintiffs. Briefly stated the facts of the case are that the plaintiffs filed a suit claiming that the suit land was earlier in possession of Chanan Devi who was a tenant at Will and after her death, the plaintiffs had succeeded to her right of tenancy. It is alleged that the defendants were threatening to interfere and take away the possession and, therefore, the suit for injunction and in the alternative for possession was filed by the plaintiffs. The defendants contested the suit and according to the defendants, neither the plaintiffs nor Chanan Devi had ever been in possession of the suit land. According to the defendants, the suit land was owned and possessed by Harnam Singh and after his death, it was succeeded to by his son Nathu Ram who vide agreement dated 16.10.1985 agreed to sell 6 marlas of land out of the suit land to Smt.Ram Dulari, wife of defendant No.2 and the possession of the same was handed over to her. 3 The learned Trial Court held that the suit land belongs to the State Government. It also held that Chanan Devi, predecessor-in-interest of the plaintiffs had been in possession of the suit land but came to the conclusion that her possession was that of a trespasser and not as a tenant. It was held that part of the suit land was in possession of the plaintiffs and part in possession of the defendants No.1, 3 and 4. Since the defendants No.1, 3 and 4 had no right over the suit land which had earlier been in possession of Chanan Devi and thereafter, in possession of the plaintiffs, it was held that the plaintiffs had a better title than defendants No.1, 3 and 4 and decree for possession of the suit land to the extent of 9½ marlas was passed in favour of the plaintiffs and the defendants were restrained from interfering in the remaining suit land. This judgment has been confirmed by the learned Additional District Judge, Kangra at Dharamshala, Camp at Una. Though the Regular Second Appeal was admitted on another substantial question of law, I feel that the only substantial question of law which 4 arises in this case is; “whether a person who is not the owner of the land but proves that he was in possession of the land and has been dispossessed by a person who is not the true owner can pray for a decree of possession against such person?”. As stated above, both the courts below have given a finding of fact that earlier Smt.Chanan Devi and thereafter, the plaintiffs were coming in possession of the suit land. It has also been found that the suit land was not owned by them and the land belongs to the State Government. It also stands proved that the plaintiffs have been dispossessed by the defendants No.1, 3 and 4 from 7½ marlas. Sh.T.S.Chauhan, learned counsel for the appellants-defendants has strenuously argued that the plaintiffs are not the owner of the suit land and no decree of possession can be granted in their favour. In support of his contention, Sh.Chauhan has placed reliance on Nagar Palika, Jind Vs. Jagat Singh, AIR 1995 (82), SC 1377, L.N.Aswathama & anr. Vs. P.Prakash, 2009 (13), SCC 229, T.K.Mohammed Abubucker (dead) through LRs. & ors. Vs. P.S.M.Ahamed Abdul Khader & ors. 2009 (14) SCC 5 224. In my view, none of these judgments is applicable to the facts and circumstances of the present case. On the other hand, Sh.R.K.Gautam, learned senior counsel for the plaintiffs-respondents placed reliance on the judgment of the Apex Court in Nair Service Society Ltd. Vs. K.C.Alexander & ors. AIR 1968, SC 1165 wherein the Apex Court, speaking through Hidayatullah, J., dealt with an identical question and held as follows:- “We agree as to a part of the reasoning but with respect we cannot subscribe to the view that after the period of 6 months is over a suit based on prior possession alone, is not possible. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the procedure laid down by the Code of Civil Procedure must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of 6 months. The uniform view of the courts is that if section 9 of the Specific Relief Act is utilized the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on 6 prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law. In our judgment the suit was competent.” In that case also, the plaintiffs who were in possession of the land owned by the State were evicted from the said land not by the State but by a society. In Somnath Berman Vs. Dr.S.P.Raju & anr. AIR 1970 SC 846, the Apex Court dealt with the same contention and held as follows:- “It was next contended on behalf of the appellant that in a suit for possession brought on the basis of title, the plaintiff cannot succeed unless he proves his title to the suit property as well as its possession within 12 years:” The Apex Court rejected the contention in the following words:- “We are unable to accept this contention as correct. In our opinion the possession of the plaintiff 7 prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff’s lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner.” In view of the aforesaid law laid down by the Apex Court, it has to be held that a person who is a trespasser on the land and is evicted from the said land by any person other than the true owner the trespasser has a right to file a suit and claim a decree for possession on the basis of his possession and possessory title alone and he need not prove his ownership. His possessory rights holds good against all but the true owner. In view of the above discussion, the question is decided against the appellants- defendants and in favour of the respondents- plaintiffs. The appeal is accordingly dismissed. No order as to costs. March 3, 2011 ( Deepak Gupta ) (m) Judge