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.