Whether 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. ?

2019 ACJ- APEX COURT JUDGMENTS VOL.NO.1/2019 APEX COURT DIGEST VOL.NO.1

15. 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 are not perverse or against the material on record. – 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. Per contra, the   defendants   relied   on   two   sale   deeds,   viz.,   Ex.   A­6   dated 06.02.1956,   executed   by   the   original   owner   Khoom   Singh   in favour of Purkha Ram, and Ex. A­2 dated 21.06.1966, executed by Purkha Ram in favour of the appellant/Defendant No. 1. 

 However, according to the plaintiff, he had been wrongly dispossessed by defendants on 30.04.1972,  which was 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. – High court reversed the same and restore the trial court judgment – Apex court held that 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. –

whether the plaintiff had better title over the suit property and whether he was   in   settled possession   of   the   property,   which   required dispossession in accordance with law.

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 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. 

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. DW­7, 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.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 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.  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 predecessor­in­interest was in possession of the same. 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   on   facts   with   the judgment of the First Appellate Court.