Shri Avtar Singh vs Smt. Sarla Gupta And Ors.
2004 Latest Caselaw 112 Del

JUDGMENT

Vikramajit Sen, J.

1. The question that arises in this Revision is whether the Trial Court was in error in dismissing the Plaintiffs Suit filed under Section 6 of the Specific Relief Act, having arrived at the conclusion that the Plaintiff/Revisionist had "bitterly failed to prove his possession conclusively by any reliable evidence on record." This Section reads thus-

"Suit by person dispossessed of immovable property:-

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that maybe set up in such suit.

(2) No suit under this section shall be brought-

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof".

2. The Restatement of the law is conveniently available in the perspicuous judgment of the Apex Court authored by Justice Lahoti delivered in Rama Gowda Lrs. Versus M.Varadappa Naidu, 2003 (8) Supreme 934. Although the judgment should be read in its entirety, the following extract calls for reproduction for facility of reference.

"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 user 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 a peaceful and settled possession by injunction 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 possession 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 the case, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

It is the settled 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 - , Puran Singh and Ors. Vs. The State of Punjab - and Ram Rattan and Ors. Vs. State of Uttar Pradesh - . 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 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 causal act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and re-instate 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 of concealment by the trespasser. The phrase `settled possession' does not carry any special charm or magic in it; not is it a ritualistic formula which can be confirmed 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 rests 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 of 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 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.

3. Salmond has taken pains to emphasize that in the absence of provisions such as Section 6 of the Specific Relief Act, 1963, violence, chaos and disorder would become inevitable. It seems to me that generally these comments are made from the viewpoint of the person in possession of the subject immovable property. What cries out to be also underscored is that Section 6 also protects the rightful owner against trespass onto his property, inasmuch as the trespasser is not authorised to take forcible possession and to be entitled to relief, he must be able to disclose that he is in settled possession. This can be established by the trespasser by showing acquiescence on the part of the title holder, as also that the Plaintiff in an action under Section 6 of the Act is not in occupation of the land for a short duration. The duration is incapable of definition and will invariably have to be determined in the facts of each case. For example, if an owner is residing on the land and a trespasser occupies a portion thereof, even after one week the prohibition of Section 6 may come into play against the owner. When the title holder resides at a distance from the land, and he has no reason to visit it for a year or so, such period or duration of trespass would not be indicative of `settled' possession. Assuming, however, that such person has been informed of the trespass and he declines to take immediate action, the rigour of Section 6 would take effect. The preeminent factor is the maintenance of public tranquility. Resting on the documents allegedly executed in his favor, the Plaintiff could have claimed possession through Court. Instead he has taken law into his own hands by attempting to take possession by entering upon the land and constructing boundary walls etc. Close to a century ago the Privy Council had clarified in Midnapur Zamindary Co. Ltd. v. Kumar Naresh Roy and Others, AIR 1924 PC 144 that "in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court". Akin to Section 53A of the Transfer of Property Act, this provision can be employed only as a shield and not a sword. It does not empower the trespasser or rival owner to take forcible possession and thereafter plead insulation from immediate ouster by the real owner who can reasonably prove his previous possession, actual or legal. The other parallel that comes to mind is of ownership rights predicated on adverse possession; these are recognised in law only if the possession is open and hostile. In all situations mayhem will ensue if Courts decline to give protection to the existing title holder illegally and unauthorisidely ousted from possession of immovable property, who acts with immediate dispatch.

4. The present proceedings are not appellate in character; in revisory jurisdiction the factual matrix spelt out by the immediately lower court should be deviated from only in compelling causes. The facts have not been narrated in detail since the legal question is of importance. The first salvo of litigation is a Suit for Permanent Injunction filed by the Revisionist against S/Shri Jarnail Singh Kalra, Rohini Kumar Anand, Ramesh Tyagi and Abhey Ram. In this action, it has been averred that on 31st March, 1987, the Revisionist/Plaintiff, namely, Shri Avtar Singh had purchased land measuring 230 sq.yards. in Khasra No.31/16/1 situated in village Jharoda Majra Burari, Delhi from Abhey Ram. It is also pleaded that - "after taking possession of the land under the suit property, the Plaintiff constructed a room measuring 13' x 9' as well as the boundary walls in the first week of April, 1987". The exact date of coming into possession is, therefore, left to conjecture and presumably took place on 31.3.1987. Failure to specifically plead, this event should be fatal since possession is the fulcrum of the claim. It is thereafter averred that Ramesh Tyagi is inimical and hostile towards Abhey Ram and is a land grabber. These persons allegedly threatened to dispossess Avtar Singh. There is no reference to the Respondents. In the Written Statement, Rohani Kumar has pleaded that Abhey Ram was not the owner after 30th August, 1971 on which date the Sale Deed had been executed by the latter in favor of the former. A copy of the Khasra Girdawari had been relied on by Rohani Kumar to establish his ownership as well as his possession. It is further pleaded by Rohani Kumar that Avtar Singh "has trespassed about which a report was lodged in the police station". This Suit has been withdrawn. Thereafter Avtar Singh has filed a Suit under Section 6 of the Specific Relief Act against the present Respondents. In the second Suit it has been averred that a plot of land ad measuring 230 sq.yards in Khasra No.31/16/1 situated in village Jharoda Majra Burari, Delhi was purchased from Abhey Ram for Rs.32,000/- vide receipt which was duly executed and registered before the Sub-Registrar, Delhi. It is further averred that Shri Abhey Ram also executed a Receipt, Agreement to Sell, General Power of Attorney and Affidavit and handed over vacant possession to the Plaintiff on the same dated i.e. 31.3.1987. I have perused the Receipt and find that it is bereft of all necessary details and on the contrary mentions receipt of Rs.32,000/- as an advance. In their Written Statement the Respondents/Defendants have asserted that Abhey Ram had no right in any portion of the land, i.e. Plot No.3 in Khasra No.31/16/1 on 31.3.1987 and that since the said person had no physical possession of any land, the question of handing over possession to the Plaintiff could not have arisen. The Respondents have stated that Abhey Ram had sold the Respondents' plot to Shri Kundan Lal Gupta vide a registered Sale Deed dated 30.8.1971. Kundan Lal in turn sold the property to the Respondents on 24.12.1974 and delivered vacant possession on the same date. Emphasis has been laid on behalf of the Respondents to the fact that the plot of land has been mis-described and wrong measurements thereof have been stated. It is further asserted that Avtar Singh has never been in possession of any portion of the land, and that it admeasures 200 sq.yards and not 230 sq.yards. The Respondents have further pleaded that Rohani Kumar is the owner of the adjoining Plot No.2. The Respondents have averred that consequent upon Court Orders passed in their favor by the Vacation Judge, the plaintiff Along with several persons came to the Suit Property armed with sword, lathis and hockey-sticks and attacked the son of the Defendants and his two colleagues who was present in the said premises and tried to criminally trespass the suit property. In cross-examination one of the Respondents has stated that he came to know about the pendency of Avtar Singh's Suit for the first time on 30th June, 1987. This witness has also accepted the suggestion of the learned counsel of Avtar Singh that in 1971 there was no construction or habitation in the area and this position continued till 1974. The witness has also stated in cross-examination that at the time when an ex parte Order was obtained from the Court of Shri P.K.Dham, there was no construction on the plot. It is further stated that on 9th June, 1987, there was nobody to look after the plot and the possession was only by virtue of ownership.

5. This narration will disclose that there is considerable controversy centering on the possession of the land. The position that emerges is that Abhey Ram is the villain of the peace having sold the land twice over. Firstly to the predecessor-in-title of the Respondents in 1971 by registered Sale Deed and thereafter on 31.3.1987 to Avtar Singh. By virtue of Section 3 of the Transfer of Property Act, the possession of the land along with its title stood transferred to the predecessor-in-title of the Respondents. By operation of the law Abhey Ram could not have handed over possession to Avtar Singh either on 31.3.1987 or in the first week of April, 1987. Since litigation has followed within days of the alleged handing over of possession by Abhey Ram to Avtar Singh, by no stretch of imagination could the latter be considered to be in settled possession. In my opinion, this is the watershed of the case. It cannot be overemphasised that acquiescence on the part of the Respondents is neither alleged nor is even faintly evident from the facts of the case. The prohibition of Section 6 works against the Revisionist Avtar Singh since, instead of initiating an action for Possession on the basis of his having acquired title to the property, he must be seen as having attempted to dispossess the Respondents contrary to the prescription of Section 6. In these circumstances, the judgment of the Trial Court cannot be faulted, and certainly no jurisdictional error is evident. It has been stressed by the learned counsel for the Revisionist that the identity of the suit property is not in dispute, but this begs the question inasmuch as Avtar Singh has failed to specifically plead the necessary details and conclusively prove the statements in his plaint. There is no plot ad-measuring 230 sq.yards and the withdrawal of the previous suit against other persons strongly suggests that he was not clear in his own mind of the essential details. It is because of the nebulous nature of the Avtar Singh's claim for possession that his reliance on the decision of the Hon'ble Supreme Court in S.R.Ejaz Versus T.N. Handloom Weavers' Cooperative Society Ltd., (2002) 3 Supreme Court Cases 137 is misplaced. That case dealt with forceable dispossession of a tenant by the Respondent landlord with the help of its workers and the local police during the pendency of the Suit for Injunction. The facts of the two cases are not similar.

6. One aspect of the dispute needs to be specifically dealt with in view of the various interlocutory Orders passed in the Suits filed by the parties. I had inquired from the learned counsel for the Revisionist as to whether any proceedings under the Contempt of Courts Act are pending to which Mr.Dhingra has replied that they have been adjourned sine die at his instance. This question has been broached by me since no party to a litigation is allowed to alter the status quo or defy an injunction. A party aggrieved by an Order passed by the Court has only one option available to him and that is to approach the Court for a recall of the said Order. The right of the owner of land on immovable property to defend his possession against a trespasser by the use of reasonable force does not exist in the face of the specific Orders passed by Court of Law. However, since no Contempt of Court proceedings are pending, this consideration is not relevant.

7. In this analysis, the impugned Order does not suffer from any error. Avtar Singh has prima facie dubious title, and indubitably doubtful possession. The Revision Petition is dismissed. Parties to bear their respective costs.