POONA RAM versus MOTI RAM (D) TH. LRS. & ORS.
[2019] 1 S.C.R. 671, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A
B
C
D
E
F
G
H
671
POONA RAM
v.
MOTI RAM (D) TH. LRS. & ORS.
(Civil Appeal No. 4527 of 2009)
JANUARY 29, 2019
[N. V. RAMANA AND
MOHAN M. SHANTANAGOUDAR, JJ.]
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
[2019] 1 S.C.R. 671
671
A
B
C
D
E
F
G
H
672
SUPREME COURT REPORTS
[2019] 1 S.C.R.
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
A
B
C
D
E
F
G
H
673
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
POONA RAM v. MOTI RAM (D) TH. LRS.
A
B
C
D
E
F
G
H
674
SUPREME COURT REPORTS
[2019] 1 S.C.R.
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.
Case Law Reference
AIR 1924 PC 144
referred to
Para 10
AIR 1968 SC 1165
referred to
Para 10
[2003] 6 Suppl. SCR 850
referred to
Para 12
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4527
of 2009.
From the Judgment and Order dated 28.08.2006 and 19.10.2006
by the High Court for Rajasthan at Jodhpur in Civil Second Appeal No.
97 of 1984 and Civil Review Petition No. 18 of 2006.
A
B
C
D
E
F
G
H
675
Ms. Christi Jain, Puneet Jain, Ms. Ankita Gupta, Harsh Jain,
Ms. Pratibha Jain, Advs. for the Appellant.
Pallav Shishodia, Sr. Adv., Ms. Madhurima Tatia, Ms. K. V.
Bharathi Upadhyaya, Advs. for the Respondents.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J. 1. The judgment
dated 28.08.2006 passed by the High Court of Judicature of Rajasthan
at Jodhpur in Civil Second Appeal No. 97 of 1984and the concurrent
judgment dated 10.10.2006 in Civil Review Petition No. 18 of 2006,
dismissing the same, arecalled in question in this appeal by the
unsuccessful defendants.
2. The brief facts leading to this appeal are as under:
A suit came to be filed for declaration of title and for possession
by Respondent No. 1 herein. Undisputedly, the plaintiff  Moti Ram had
no document of title to prove his possession, but claimed possessory title
based on prior possession for a number of years.  However, according
to the plaintiff, he had been wrongly dispossessed by defendants on
30.04.1972, whichwas within the 12 years preceding the filing of the
present suit. The Trial Court decreed the suit and the First Appellate
Court reversed the findings of the Trial Court. The First Appellate Court
dismissed the said suit on the ground that the defendants had proved
their title and possession over the suit property.
3. As mentioned supra, the plaintiff did not have any title deedwith
respect to the suit property. He based his claim mainly on his alleged
long
possession over the property, and claimed that there was nobody
with better titleover it than him. Per contra, the defendantsrelied on two
sale deeds, viz., Ex. A-6 dated 06.02.1956,executed by the original owner
Khoom Singh in favour of Purkha Ram, and Ex. A-2 dated 21.06.1966,
executed by Purkha Ram in favour of the appellant/Defendant No. 1. It
was also not disputed that the plaintiff did not have possession as on the
date of filing of the suit, inasmuch as he has alleged that he was wrongly
dispossessed by the defendant on 30.04.1972, prior to filing the suit.
4. The only questions to be decided in this appeal are whether the
plaintiff had better title over the suit property and whether hewas insettled
possession of the property, which required dispossession in accordance
with law.
POONA RAM v. MOTI RAM (D) TH. LRS.
A
B
C
D
E
F
G
H
676
SUPREME COURT REPORTS
[2019] 1 S.C.R.
5. Ms. Christi Jain, learned counsel appearing for the appellant/
Defendant No. 1, taking us through the material on record, contends
that there is nothing on record to show that the plaintiff was in possession
of the property at any point of time, much less for a longer time lawfully.
There is no material to show that the plaintiff has possessory title over
the suit property. Additionally, she argues that the sale deeds mentioned
supra relied upon by the defendants would clearly reveal that the
defendants were in possession of the property as owner thereof, from
the date of purchase of the suit property.
6. Undisputedly and as duly admitted by both parties, the property
in question originally belonged toJagirdar Khoom Singh of Barmer.  The
property in question is part of a larger property under the Jagirdari system,a
few parts of which were rented out or sold. After the system of Jagirdari
was abolished, these jagirs were resumed in the year 1955-56. While a
few persons continued in illegal possession,others had purchased parts
of the land from theJagirdar, and the remaining landvested in the State
Government and municipalities. After the resumption of the jagir,it seems
that the Barmer Municipality established a planned and well-managed
colony named Nehru Nagar on the said land.Ex.12, Ex. 13 and Ex. 14
are the survey maps of the Municipality.  A perusal of Ex. 12 (first
survey) reveals that Moti Ram was in
possession of the land, the plot to
the east of which waspossessed by Nawala Harijanand in the east of
Nawala Harijan’s plot, possession of Purkha Ram  (to recall, predecessor-
in-interest of the defendants) on the site has been indicated.Further, the
possession of Purkha Ramhas also been indicated on a plot to the south
of the land duly possessed by Moti Ram. Thus, it is clear that the plots of
land owned by Khoom Singh, in possession of these persons, were not
uniformly situated. However, afterthe Municipality took over possession,
it seems thatorderly formation of the plots was undertaken. Though there
was some confusion raised by the plaintiff with regard to the boundaries
of the property in question, 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 Purkha Ram was in possession of the property in question
even prior to 1966, andhad 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
A
B
C
D
E
F
G
H
677
let out only three plots to the Jagirdar, 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 PlotNo.7.
7. The official record (survey map), Ex. 14,which relates to theplot
in question, i.e., Plot No. 7,reveals that it was owned by Poona Ram,
who is Defendant No. 1 and the appellant herein. It is also relevant to
note that sanction for constructingthe house was given to Purkha Ram
in the year 1957.  Obviously,such sanction would have been accorded
only on the basis of title and possession of the property.
8. Section 64 of the Limitation Act, 1963 contemplates a suit for
possession of immovable property based on previous possession and not
on title, if brought within 12 years from the date of dispossession.   Such
a suit is known in law as a suit based on possessory title as distinguishable
from proprietary title.  It cannot be disputed and is by now well settled
that ‘settled possession’ or effective possession of a person without title
entitles him to protect his possession as if he were a true owner.
9. The law in India, as it has developed, accords with jurisprudential
thought as propounded by luminaries like Salmond. Salmond
onJurisprudence (12 Edn. at paras 59-60) states:-
“These two concepts of ownership and possession, therefore, may
be used to distinguish between the de facto possessor of an object
and its de jure owner, between the man who actually has it and
the man who ought to have it. They serve also to contract the
position of one whose rights are ultimate, permanent and residual
with that of one whose rights are only of a temporary nature.
x
x
x
x
x
In English law possession is a good title of right against anyone
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. Many other legal systems,
however, go much further than this, and treat possession as a
provisional or temporary title even against the true owner himself.
Even a wrongdoer, who is deprived of his possession, can recover
it from any person whatever, simply on the ground of his
possession. Even the true owner, who takes his own, may be
POONA RAM v. MOTI RAM (D) TH. LRS.
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
678
SUPREME COURT REPORTS
[2019] 1 S.C.R.
forced in this way to restore it to the wrongdoer, and will not be
permitted to set up his own superior title to it. He must first give
up possession, and then proceed in due course of law for the
recovery of the thing on the ground of his ownership. The intention
of the law is that every possessor shall be entitled to retain and
recover his possession, until deprived of it by a judgment according
to law.
Legal remedies thus appointed for the protection of possession
even against ownership are called possessory, while those
available for the protection of ownership itself may be distinguished
as proprietary. In the modern and medieval civil law the distinction
is expressed by the contrasted terms petitorium (a proprietary
suit) and possessorium (a possessory suit).”
10. As far back as 1924, in the case of Midnapur Zamindary
Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge
observed that in India, persons are not permitted to take forcible
possession; they must obtain such possession as they are entitled to
through a court.   Later, in the case of Nair Service Society Ltd. v.
K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the
facts disclose no title in either party, possession alone decides.  It was
further held that if Section 9 of the Specific Relief Act, 1877
(corresponding to the present Section 6) is employed, the plaintiff need
not prove title and the title of the defendant does not
avail him. When,
however, the period of six 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, such a right is only restricted to
possession in a suit under Section 9 of the Specific Relief Act
(corresponding to the present Section 6)but does not bar a suit on prior
possession within 12 years from the date of dispossession, and title need
not be proved unless the defendant can provide one.
11. It was also observed by this Court in Nair Service Society
Ltd (supra) that a person in possession of land in assumed character of
owner and exercising peaceably the ordinary rights of ownership has a
perfectly good title against the entire world except the rightful owner. In
such a case, the defendant must show in himself or his predecessor a
valid legal title and probably a possession prior to the plaintiff’s, and thus
be able to raise a presumption prior in time.
A
B
C
D
E
F
G
H
679
12. In the case of Rame Gowda (dead) by Lrs. v.  M. Varadappa
Naidu (dead) by Lrs. and another, (2004) 1 SCC 769, a three-Judge
Bench of this Court, while discussing the Indian law on the subject,
observed as under:-
“8. It is thus clear that so far as the Indian law is concerned the
person in peaceful possession is entitled to retain his possession
and in order to protect such possession he may even use reasonable
force to keep out a trespasser. A rightful owner who has been
wrongfully dispossessed of land may retake possession if he can
do so peacefully and without the use of unreasonable force. If the
trespasser is in settled possession of the property belonging to the
rightful owner, the rightful owner shall have to take recourse to
law; he cannot take the law in his own hands and evict the
trespasser or interfere with his possession. The law will come to
the aid of a person in peaceful and settled possession by injuncting
even a rightful owner from using force or taking law in his own
hands, and also by restoring him in possession even from the rightful
owner (of course subject to the law of limitation), if the latter has
dispossessed the prior possessor by use of force. In the absence
of proof of better title, possession or prior peaceful settled
possession is itself evidence of title. Law presumes the possession
to go with the title unless rebutted. The owner of any property
may prevent even by using reasonable force a trespasser from an
attempted
trespass, when it is in the process of being committed,
or is of a flimsy character, or recurring, intermittent, stray or casual
in nature, or has just been committed, while the rightful owner did
not have enough time to have recourse to law. In the last of the
cases, the possession of the trespasser, just entered into would
not be called as one acquiesced to by the true owner.”
13. The crux of the matter is that 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
POONA RAM v. MOTI RAM (D) TH. LRS.
[MOHAN M. SHANTANAGOUDAR, J.]
A
B
C
D
E
F
G
H
680
SUPREME COURT REPORTS
[2019] 1 S.C.R.
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.
14. As mentioned supra, Purkha Ram had purchased three plots
from JagirdarKhoom Singh.  In sale deed Ex. A-6, three plots have been
mentioned as plots of three houses. One of these,being Plot No. 7,was
sold by Purkha Ram to the appellant, one plot being Plot No. 4 was sold
to Teja Ram and the third plot being Plot No. 5 was retained by Purkha
Ram.
15. 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 to one Joga Ram 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, whohas 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.
16. The plaintiff/Respondent No. 1 makes much of the old body
of a motor vehicle belonging to him lying on the property. Ex. 2 clearly
reveals that one part of the motor vehicle was lying on the disputed
property and another part was lying on the plot of the plaintiff.  The said
body of the motor vehicle is about 3 to 4 feet in length only and the same
was lying on the boundary of the disputed property.  But the plaintiff/
Respondent No. 1 claims possession of the entire plot based on such
fact. Absolutely 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
A
B
C
D
E
F
G
H
681
established possession. As mentioned supra, 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.
17. 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.
18. Having regard to the position of law and facts of the case, we
are of the considered opinion that 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 onfacts
with the judgment of the First Appellate Court.
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 arenot perverse or against the
material on record.
19. 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.  Accordingly, the appeal succeeds and is allowed.
20. The impugned judgment of the High Court dated 28.08.2006
and its review stands set aside and the judgment of the First Appellate
Court is restored. Consequently, suit stands dismissed.
Kalpana K. Tripathy
  Appeal allowed.
POONA RAM v. MOTI RAM (D) TH. LRS.
[MOHAN M. SHANTANAGOUDAR, J.]