POONA RAMversusMOTI RAM (D) TH. LRS. & ORS.

                         [2019] 1 S.C.R. 671                               671


                            POONA RAM                                      A
                                   v.
                 MOTI RAM (D) TH. LRS. & ORS.
                   (Civil Appeal No. 4527 of 2009)
                      JANUARY 29, 2019                                     B
                    [N. V. RAMANA AND
              MOHAN M. SHANTANAGOUDAR, JJ.]
      Suit:
        Suit claiming possessory title – Based on settled possession
                                                                           C
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       D
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
                                                                           E
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        F
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
                                                                           G
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
                                                                           H
                                  671
672            SUPREME COURT REPORTS                          [2019] 1 S.C.R.


A     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
B     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
C     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,
D     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
E     (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
F     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
G     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
H     concealment by the trespasser. There cannot be a straitjacket
           POONA RAM v. MOTI RAM (D) TH. LRS.                           673


formula to determine settled possession. Occupation of a property       A
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]
                                                                        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,       C
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           D
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,        E
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]
                                                                        F
      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           G
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         H
674            SUPREME COURT REPORTS                       [2019] 1 S.C.R.


A     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
B
      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
C     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
D     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
E           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
F
            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
G     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.

H
             POONA RAM v. MOTI RAM (D) TH. LRS.                                 675


      Ms. Christi Jain, Puneet Jain, Ms. Ankita Gupta, Harsh Jain,              A
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
                                                                                B
      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.                                                        C

      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      D
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            E
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      F
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
                                                                                G
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.
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676             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A            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
B
      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
C     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
D     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
E     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
F     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
G     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
H
             POONA RAM v. MOTI RAM (D) TH. LRS.                                 677
              [MOHAN M. SHANTANAGOUDAR, J.]

let out only three plots to the Jagirdar, and those three plots together        A
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,           B
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       C
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.              D

      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           E
      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.
                                                                                F
                          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,
                                                                                G
      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
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678             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A            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
B
             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
C            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
D     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
E     (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
F     (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
G     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.
H
            POONA RAM v. MOTI RAM (D) TH. LRS.                                   679
             [MOHAN M. SHANTANAGOUDAR, J.]

      12. In the case of Rame Gowda (dead) by Lrs. v. M. Varadappa               A
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         B
      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          C
      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      D
      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            E
      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           F
      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          G
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
                                                                                 H
680             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A     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
B
      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
C     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.
D            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
E     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
F     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
G     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
H     property for a longer period which may be called settled possession or
             POONA RAM v. MOTI RAM (D) TH. LRS.                                 681
              [MOHAN M. SHANTANAGOUDAR, J.]

established possession. As mentioned supra, mere casual possession,             A
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      B
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.
                                                                                C
       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.                                 D

      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.
                                                                                E
       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           F
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         G
Court is restored. Consequently, suit stands dismissed.


Kalpana K. Tripathy                                           Appeal allowed.

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