TMI Blog2003 (12) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal feeling aggrieved by the judgment and decree of the Trial Court, upheld by the High Court, restraining him from interfering with the possession and enjoyment of the suit schedule property by the respondent. The plaintiff and the defendant both have expired. Their LRs are on record. For the sake of convenience we are making reference to the original parties i.e. the plaintiff and the defendant. The suit property, a piece of land, is situated in Arekempanahally, 36th Division. It appears that the plaintiff and the defendant both claim to be owning two adjoining pieces of land. There is a dispute as to the exact dimensions and shapes (triangular or rectangular) of the pieces of land claimed to be owned and possessed respectively by the two parties. The real dispute, it seems, is about the demarcation of the boundaries of the two pieces of land. However, the fact remains, and that is relevant for our purpose, that the piece of land which forms the subject-matter of the suit is in the possession of the plaintiff-respondent. The plaintiff-respondent was raising construction over the piece of land in his possession, and that was obstructed by the defendant-appellant claiming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the ground of his possession. Even the true owner, who takes his own, may be 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. (Salmond, ibid, pp. 294-295) 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). (Salmond, ibid, p.295) The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. Vs. Kumar Naresh Narayan Roy and Ors. 1924 PC 144, Sir John Edge summed up the Indian law by stating that in India persons are not permitted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind Vs. Jagat Singh, Advocate (1995) 3 SCC 426, this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate 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 and Ors. s case (supra), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the former establishing his better right to possess the property. The learned counsel for the appellant relied on the Division Bench decision in Sri Dasnam Naga Sanyasi and Anr. Vs. Allahabad Development Authority, Allahabad and Anr. AIR 1995 Allahabad 418 and a Single Judge decision in Kallappa Rama Londa Vs. Shivappa Nagappa Aparaj and Ors. AIR 1995 Karnataka 238 to submit that in the absence of declaration of title having been sought for, the suit filed by the plaintiff-respondent was not maintainable, and should have been dismissed solely on this ground. We cannot agree. Sri Dasnam Naga Sanyasi and Anr. s case relates to the stage of grant of temporary injunction wherein, in the facts and circumstances of that case, the Division Bench of the High Court upheld the decision of the court below declining the discretionary relief of ad-interim injunction to the plaintiff on the ground that failure to claim declaration of title in the facts of that case spoke against the conduct of the plaintiff and was considered to be unusual . In Kallappa Rama Londa s case, the learned Single Judge has upheld the maintainability of a suit merely seeking injunction, without declaration of ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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