Possession – Working Rule for determining the

attributes of ’Settled Possession’

Possession – Settled Possession – the Court has found the plaintiff as having failed in proving
his title. Nevertheless, he has been found to be in settled possession of the property. Even the
defendant failed in proving his title over the disputed land so as to substantiate his entitlement
to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to
determine the suit on the basis of possession, protecting the established possession and
restraining the attempted interference therewith. The Trial Court and the High Court have
rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his
title against the plaintiff-respondent and evict the latter on the former establishing his better
right to possess the property.
Citations : AIR 2004 SC 4609 : AIR 2004 SCW 4205 : 2004 (2) ALD 31 : 2004 (3) Bom.C.R. 788 :
2003 (10) Scale 950 : (2004) 1 SCC 769 : 2003 (6) Suppl. SCR 850 : 2003 (8) Supreme 928
ICL 2003 (12) SC 152
IN THE SUPREME COURT OF INDIA
R.C. Lahoti, J; B.N. Srikrishna, J. & G.P. Mathur, J.
Appeal (Civil) 7662 of 1997; 15/12/2003
Rame Gowda (D) by Lrs. v. M. Varadappa Naidu (D) by Lrs. & Anr.
JUDGMENT
R.C. Lahoti, J.
The defendant is in 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 that the
land formed part of his property and was owned by him. The plaintiff filed a suit alleging his title as
also his possession over the disputed piece of land. The Trial Court found that although the plaintiff
had failed in proving his title, he had succeeded in proving his possession over the suit property
which he was entitled to protect unless dispossessed therefrom by due process of law. On this
finding the Trial Court issued an injunction restraining the defendant-appellant from interfering with
the peaceful possession and enjoyment of the plaintiff-respondent over the suit property.
It is contended by the learned counsel for the defendant-appellant that the suit filed by the plaintiff
was based on his title. The suit itself was defective inasmuch as declaration of title was not sought
for though it was in dispute. Next, it is submitted that if the suit is based on title and if the plaintiff
failed in proving his title, the suit ought to have been dismissed without regard to the fact that the
plaintiff was in possession and whether the defendant had succeeded in proving his title or not. We
find no merit in both these submissions so made and with force.

Salmond states in Jurisprudence (Twelfth Edition), “few relationships are as vital to man as that of
possession, and we may expect any system of law, however primitive, to provide rules for its
protection. . . . . . . Law must provide for the safeguarding of possession. Human nature being what
it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term
interests of society in general. But since an attack on a man’s possession is an attack on something
which may be essential to him, it becomes almost tantamount to an assault on the man himself; and
the possessor may well be stirred to defend himself with force. The result is violence, chaos and
disorder.” (at pp. 265, 266).

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 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 take forcible possession; they must obtain such possession as they are entitled to through a Court.

The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being
Ramesh Chand Ardawatiya Vs. Anil Panjwani, (2003) 7 SCC 350. In-between, to quote a few out of
severals, in Lallu Yeshwant Singh (dead) by his legal representative Vs. Rao Jagdish Singh and
others , (1968) 2 SCR 203, this Court has held that a landlord did commit trespass when he forcibly
entered his own land in the possession of a tenant whose tenancy has expired. The Court turned
down the submission that under the general law applicable to a lessor and a lessee there was no rule
or principle which made it obligatory for the lessor to resort to Court and obtain an order for
possession before he could eject the lessee. The court quoted with approval the law as stated by a
Full Bench of Allahabad High Court in Yar Mohammad Vs. Lakshmi Das (AIR 1959 All. 1,4),
“Law respects possession even if there is no title to support it. It will not permit any person to take
the law in his own hands and to dispossess a person in actual possession without having recourse to
a court. No person can be allowed to become a judge in his own cause.” In the oftquoted case of
Nair Service Society Ltd. Vs. K.C. Alexander and Ors. , (1968) 3 SCR 163, this Court held 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 all the world but the rightful owner. When the
facts disclose no title in either party, possession alone decides. The court quoted Loft’s maxim ,
’Possessio contra omnes valet praeter eur cui ius sit possessionis (He that hath possession hath right
against all but him that hath the very right)’ and said, “A defendant in such a case must show in
himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff’s and
thus be able to raise a presumption prior in time”. In M.C. Chockalingam and Ors. Vs. V.
Manickavasagam and Ors. , (1974) 1 SCC 48, this Court held that the law forbids forcible
dispossession, even with the best of title. In Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs.
Shobha Venkat Rao , (1989) 4 SCC 131, it was held that where a person is in settled possession of
property, even on the assumption that he had no right to remain 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 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 he cases, the possession of the trespasser, just entered into would not be called as one
acquiesced to by the true owner.
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 and Ors. Vs. Delhi Administration,
(1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab , (1975) 4 SCC 518 and Ram
Rattan and Ors. Vs. State of Uttar Pradesh , (1977) 1 SCC 188. The authorities need not be
multiplied. In Munshi Ram & Ors.’s case (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 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 a working rule for determining the
attributes of ’settled possession’ :

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 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 cases of Munshi Ram and Ors. (supra) and Puran Singh and Ors. (supra), the Court has
approved the statement of law made in Horam Vs. Rex , AIR 1949 Allahabad 564, wherein a
distinction was drawn between the trespasser in the process of acquiring possession and the
trespasser who had already accomplished or completed his possession wherein the true owner may
be treated to have acquiesced in; while the former can be obstructed and turned out by the true
owner even by using reasonable force, the latter, may be dispossessed by the true owner only by
having recourse to the due process of law for re-acquiring possession over his property.
In the present case the Court has found the plaintiff as having failed in proving his title.
Nevertheless, he has been found to be in settled possession of the property. Even the defendant
failed in proving his title over the disputed land so as to substantiate his entitlement to evict the
plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit
on the basis of possession, protecting the established possession and restraining the attempted
interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still
open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and
evict the latter 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 title, and on dealing with several decided
cases the learned Judge has agreed with the proposition that where the suit for declaration of title
and injunction is filed and the title is not clear, the question of title will have to be kept open
without denying the plaintiff’s claim for injunction in view of the fact that the plaintiff has been in
possession and there is nothing to show that the plaintiff has gained possession by any unfair means
just prior to the suit. That is the correct position of law. In Fakirbhai Bhagwandas and Anr. Vs.
Maganlal Haribhai and Anr. , AIR 1951 Bombay 380 a Division Bench spoke through Bhagwati, J.
(as his Lordship then was), and held that it is not necessary for the person claiming injunction to
prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the
same and that his possession was invaded or threatened to be invaded by a person who has no title
thereof. We respectfully agree with the view so taken. The High Court has kept the question of title
open. Each of the two contending parties would be at liberty to plead all relevant facts directed
towards establishing their titles, as respectively claimed, and proving the same in duly constituted
legal proceedings. By way of abundant caution, we clarify that the impugned judgment shall not be
taken to have decided the question of title to the suit property for or against any of the contending
parties.
No fault can be found with the judgment and decree appealed against. The appeal is devoid of any
merit and is dismissed.
Suit for declaration of title & possession;
Burden of proof
The Supreme Court of India in Union of India Vs. Vasavi Co-op. Housing Society Ltd.; AIR 2014
SC 937: (2014) 2 SCC 269 : 2014 (1) SCR 180 : JT 2014 (1) SC 385 : 2014 (1) SCALE 126 held
that in a suit for declaration of title and for possession, burden always lies on the plaintiff to make
out and establish his case by adducing sufficient evidence and the weakness, if any, of the case set
up by the defendants would not be a ground to grant relief to plaintiff.
In the instant case, trial court as well as High Court rather than examining in depth, the question, as
to whether the plaintiffs have succeeded in establishing their title to the suit land, went on to
examine in depth the weakness of defendants’ title. Plaintiffs have not succeeded in establishing
their title and possession of the suit land. Judgment of trial court, affirmed by High Court, is set
aside.

Evidence as to title
A bench comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri also observed that the
revenue records do not confer title. In a given case, the conferment of Patta as such does not confer
title.
Respondent no. 1 Co-op. Housing Society filed a suit against defendants- appellants for declaration
of title ovDefendant No. 3 filed a written statement stating that the suit land belonged to defendant
no. 1 and it was locally managed and possessed by defendant No.3. The trial court decreed the suit.
The High Court, in appeal, affirmed the judgment and decree, but noticing that the defendants had
made large scale construction of quarters for the Defence Accounts Department, afforded an
opportunity to them to provide alternative suitable extent of land in lieu of the suit scheduled [Link]
the suit land comprising 6 acres 30 guntas in Survey No.60/1 and 61 and for possession thereof
from the appellants-defendant Nos.1 to 3 and 7.
The respondent-plaintiff’s case was that it had purchased the suit land from the Pattedar during the
year 1981-82. The plaintiff relied on sale deeds, Setwar of 1353 Fasli (Ext. A-3) and the family
partition and settlement deed dated 11.12.1939 (Ext. A-2) pertaining to the family of the Pattedar.

Defendant No. 3 filed a written statement stating that the suit land belonged to defendant no. 1 and
it was locally managed and possessed by defendant No.3. The trial court decreed the suit. The High
Court, in appeal, affirmed the judgment and decree, but noticing that the defendants had made large
scale construction of quarters for the Defence Accounts Department, afforded an opportunity to
them to provide alternative suitable extent of land in lieu of the suit scheduled land.

While allowing the appeal, the Apex Court held that it is trite law that in a suit for declaration of
title, burden always lies on the plaintiff to make out and establish a clear case for granting such a
declaration and the weakness, if any, of the case set up by the defendants would not be a ground to
grant relief to the plaintiff.
The plaintiff in a suit for declaration of title and possession can succeed only on the strength of his
own title and that can be done only by adducing sufficient evidence to discharge the onus on him,
irrespective of the question whether the defendant has proved his case or not. Even if the title set up
by the defendants is found against, in the absence of establishment of plaintiff’s own title, plaintiff
must be non-suited.
In the instant case, the trial court as well as the High Court rather than examining in depth, the
question, as to whether the plaintiffs have succeeded in establishing their title on the scheduled suit
land, went on to examine in depth the weakness of the defendants; title. The defendants relied on
the entries in the GLR and their possession or re- possession over the suit land to non-suit the
plaintiffs.
The court went on to examine the correctness and evidentiary value of the entries in the GLR in the
context of the history and scope of Cantonment Act, 1924 and the Cantonment Land Administration
Rules, 1925 and tried to establish that no reliance could be placed on the GLR.
The question is not whether the GLR could be accepted or not, the question is, whether the plaintiff
could prove its title over the suit property in question. The entries in the GLR by themselves may
not constitute title, but the question is whether entries made in Ext.A-3 (Setwar of 1353 Fasli) relied
upon by the plaintiff would confer title or not on the plaintiff.
This Court in several Judgments has held that the revenue records do not confer title. Even if the
entries in the Record of Rights carry evidentiary value, that itself would not confer any title on the
plaintiff over the suit land.
Ext.X-1 is Classer Register of 1347 Fasli which according to the trial court, speaks of the ownership
of the plaintiff’s vendor’s property. These entries, as such, would not confer any title.
Plaintiffs have to show, independent of those entries that the plaintiff’s predecessors had title over
the property in question and it is that property which they have purchased. The only document that
has been produced before the court was the registered family settlement and partition deed dated
11.12.1939 wherein, admittedly, the suit land in question has not been mentioned.
The plaintiff has also maintained the stand that their predecessor- in-interest was the Pattedar of the
suit land. In a given case, the conferment of Patta as such does not confer title.
As regards the plea of the respondents-plaintiffs that the land in question is pot kharab, the A.P.
Survey and Settlement Mannual, Chapter XIII deals with pot kharab land, which is generally a non-
cultivable land and if the plaintiff’s predecessor in interest had ownership over this pot kharab land,
it should have reference in the family settlement and partition deed dated 11.12.1939.
Admittedly, the predecessor in interest of the plaintiff got the property through the family settlement
and partition deed. Conspicuous absence of the suit land in the deed would cast doubt about the
ownership and title of the plaintiffs over it.
A family settlement is based generally on the assumption that there was an antecedent title of some
kind in the purchase and the arrangement acknowledges and defines what that title was. In a family
settlement-cum- partition, the parties may define the shares in the joint property and may either
choose to divide the property by metes and bounds or may continue to live together and enjoy the
property as common. Ext.A-2 is totally silent as to whose share the suit land will fall and who will
enjoy it. The burden is on the plaintiff to explain away those factors, but it has not succeeded.
The plaintiff has not succeeded in establishing its title and possession of the suit land. The judgment
of the trial court, affirmed by the High Court, is set aside.

Case Law Reference

1. Maran Mar Basselios Catholicos v. Thukalan Paulo Avira AIR1959 SC 31
2. Nagar Palika, Jind v. Jagat Singh, Advocate 1995 (3) SCR 9 : (1995) 3 SCC 426
3. Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612
4. Guru Amarjit Singh v. Rattan Chand and others 1993 (1) Suppl. SCR 523 : (1993) 4 SCC
349
5. State of Himachal Pradesh v. Keshav Ram and others 1996 (7) Suppl. SCR 263 : (1996) 11
SCC 257
6. Syndicate Bank v. Estate Officer & Manager, APIIC Ltd. & Ors. 2007 (9) SCR 619 : (2007)
8 SCC 361
7. Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu & Ors. 1991 (2) SCR
531 : (1991) Supp. (2) SCC 228
8. Union of India v. Ibrahim Uddin & Anr. (2012) 8 SCC 148
9. Union of India & Ors. v. Kamla Verma (2010) 13 SCC 511
10. Chief Executive Officer v. Surendra Kumar Vakil & Ors. 2003 (6) Suppl. SCR
395 : (1999) 3 SCC 555
11. Secunderabad Cantonment Board, Andhra Circle, Secundrabad v. Mohd. Mohiuddin
& Ors. (2003) 12 SCC 315