D.N.A. - test - Divorce proceedings - after filing a child was born - no pleadings about the paternity of child raised - Divorce case was dismissed - in appeal by husband , simple the husband expressed a fresh doubt about paternity of a child - allowed the petition for D.N.A. test - Apex court held that when there is access between the spouse - when child born out of wedlock - in the absence of pleadings in lower court, a fresh doubt questioning the paternity of a child for the purpose of appeal not maintainable, the orders of high court are set aside = Ramkanya Bai ...Appellant Versus Bharatram ...Respondent = 2009 ( OCTOBER - VOL - 10) JUDIS.NIC.IN/ S.C. / FILE NAME =35605

 D.N.A. - test - Divorce proceedings -  after filing a child was born - no pleadings about the paternity of child raised - Divorce case was dismissed - in appeal by husband , simple the husband expressed a fresh doubt about paternity of a child - allowed the petition for D.N.A. test - Apex court held that when there is access between the spouse - when child born out of wedlock - in the absence of pleadings in lower court, a fresh doubt questioning the paternity of a child for the purpose of appeal not maintainable, the orders of high court are set aside =        

On a perusal of the application for grant of an order for


DNA test of the child, it would also be evident that there was no


allegation     made   by   the   husband/respondent   that   as       a


consequence of illicit relationship with some third person, the


child was born to the wife/appellant. Apart from that, it is an


admitted position that during the pendency of the divorce
                                                                 8



proceedings in trial Court, neither such prayer for performing


DNA test to find out the paternity of the child was ever made by


the husband/respondent nor any allegation in the plaint was


made by him in his pleading. Therefore, it was not open to the


High Court at the appellate stage to direct the DNA test to be


performed on the child of the wife/appellant. It is also well settled


that the presumption of legitimacy is a presumption of law. When


a child is born out of a wedlock, there is a presumption in favour


of his legitimacy and presumption of legitimacy largely depends


on the presumed fact that the parties to a marriage have


necessary access to each other when a divorce petition is filed


and specially, when the husband/respondent did not assert that


the son of the wife/appellant was a consequence of illicit
                                                               9



relationship with some third person.      The High Court, in the


impugned order, has also observed that the son of the


wife/appellant has begotten from the husband/respondent, which


cannot be disputed at this stage on the basis of mere desire of


the husband/respondent to deny such paternity of the child.


10.   For the reasons aforesaid, the impugned order is set aside


and the application of DNA test to be performed on the child of


the wife/appellant is hereby rejected.

2009 ( OCTOBER - VOL - 10) JUDIS.NIC.IN/ S.C. / FILE NAME  =35605     
TARUN CHATTERJEE, R.M. LODHA
                                         
      1



                                                     NON-
            REPORTABLE



                IN THE SUPREME COURT OF INDIA
               CIVIL APPELLATE JURISDICTION


                CIVIL APPEAL NO.7018 OF 2009
            (Arising out of SLP (C) No. 27770 of 2008)


Ramkanya Bai                                             ...Appellant


Versus


Bharatram                                                ...Respondent


                        JUDGMENT


TARUN CHATTERJEE, J.


1.   Leave granted.


2.   This appeal is directed against the Judgment and order

                th
     dated 26 of June, 2008 passed by the High Court of
                                                                2



     Madhya Pradesh at Indore Bench in IA No. 803 of 2007,


     which arose in a pending first appeal, which has been

                                                            th
     filed against the Judgment and order dated 7                of


     December, 2006 passed by the Additional District and


     Session Judge, District Mandsor, Madhya Pradesh.            In


     the impugned order in the pending first appeal, the High


     Court had directed DNA test of the child of the parties to


     be performed.


3.   The facts leading to the filing of this appeal in this Court


     are as follows :-


     The marriage of the wife/appellant was solemnized with

                                 th
the husband/respondent on 20          of April, 1999.   But after


sometime, the husband/respondent started harassing the
                                                                   3



wife/appellant on various issues and she was subjected to


cruelty and eventually, she was turned out of her matrimonial


home.   In the year 2004, the husband/respondent filed an


application being HMA No. 7(C) of 2004 under Section 13 of


the Hindu Marriage Act in the Court of Additional District and


Session Judge, District Mandsor, Madhya Pradesh.
However,


a child was born in the month of November, 2004 to the parties.


The parties entered appearance and issues were framed and

                                                               th
finally, the trial Court, by its Judgment and decree dated 7 of


December,    2006,   dismissed   the   petition   filed   by    the


husband/respondent against which, the husband/respondent


had filed an appeal before the High Court of Madhya Pradesh


at Indore Bench under Section 28 of the Hindu Marriage Act.
                                                                4



As noted hereinearlier, the said appeal is pending decision in


the High Court.


4.    In the said pending appeal, an application was made by


the husband/respondent for an order to perform DNA test of the


child born in the month of November, 2004 on the ground that


such child could not be taken to be a child born out of the


wedlock of the parties. It was the appellant who objected to this


application stating inter alia that the child was born from the


wedlock of the parties and it was also brought to the notice of


the High Court that the husband/respondent did not deny the


paternity of the child while the suit was pending before the trial


Court. The High Court, by the impugned order, allowed the
                                                                      5



said application of the husband/respondent by making the


following observation :


              "However, since the appellant has made a
             prestige issue and it appears to this Court that
             in case in DNA test if it is found that the son of
             the Respondent is from the appellant then the
             family can be re-united."




5.     On a plain reading of the impugned order, it is also evident


that   the    High    Court   has    allowed   the   prayer       of   the


husband/respondent for performing the DNA test of the child


without looking to the facts and circumstances of the present


case and without looking into the question of law that may be


raised in the matter.
                                                               6



6.    Feeling aggrieved by this Order, the wife/appellant has


come up to this Court by way of a Special Leave Petition, which


on grant of leave, was heard in presence of the learned counsel


for the parties.


7.    We have heard the learned counsel for the parties and


examined the impugned order of the High Court as well as the


Judgment of the trial Court, by which the application for grant of


divorce filed under Section 13 of the Hindu Marriage Act by the


husband/respondent was dismissed.


8.    We are unable to accept the impugned order of the High


Court.    The High Court was not justified in allowing the


application for grant of DNA test of the child only on the ground


that there will be a possibility of re-union of the parties if such
                                                                 7



DNA test was made and if it was found from the outcome of the


DNA test that the son was born out of the wedlock of the parties.


In the absence of any reason except on the ground that the


husband/respondent had made a prestige issue about the


paternity of the child, nothing could be found from the impugned


order of the High Court which could invite the Court to allow such


application.


9.    On a perusal of the application for grant of an order for


DNA test of the child, it would also be evident that there was no


allegation     made   by   the   husband/respondent   that   as       a


consequence of illicit relationship with some third person, the


child was born to the wife/appellant. Apart from that, it is an


admitted position that during the pendency of the divorce
                                                                 8



proceedings in trial Court, neither such prayer for performing


DNA test to find out the paternity of the child was ever made by


the husband/respondent nor any allegation in the plaint was


made by him in his pleading. Therefore, it was not open to the


High Court at the appellate stage to direct the DNA test to be


performed on the child of the wife/appellant. It is also well settled


that the presumption of legitimacy is a presumption of law. When


a child is born out of a wedlock, there is a presumption in favour


of his legitimacy and presumption of legitimacy largely depends


on the presumed fact that the parties to a marriage have


necessary access to each other when a divorce petition is filed


and specially, when the husband/respondent did not assert that


the son of the wife/appellant was a consequence of illicit
                                                               9



relationship with some third person.      The High Court, in the


impugned order, has also observed that the son of the


wife/appellant has begotten from the husband/respondent, which


cannot be disputed at this stage on the basis of mere desire of


the husband/respondent to deny such paternity of the child.


10.   For the reasons aforesaid, the impugned order is set aside


and the application of DNA test to be performed on the child of


the wife/appellant is hereby rejected. Considering the facts and


circumstances of the case, we request the High Court to dispose


of the pending appeal at an early date, preferably within six


months from the date of supply of a copy of this order to it.


11.   The appeal is thus allowed. There will be no order as to


costs.
                                                 1




                                     ...............
                         ............J.    [Tarun
                                     Chatterjee]




     New Delhi;         ...........................J.
     October 22, 2009                      [R. M.



Lodha]

Suit for declaration and possession - Plaintiff traced his traces from the date of Gift Deed - Election Tribunal also held the Plaintiff is the real congress - Properties developed by the funds of plaintiff party - Janatal dala which came in to possession after division from congress , can not hold the title and right and can not lease the same to third party and as such they are liable to be evicted - Apex court granted time to vacate on undertaking = Janatha Dal Party … Petitioner Versus The Indian National Congress & Others … Respondents = 2014 ( January - Vol - 1)judis.nic.in/supremecourt/filename=41169

  Suit for declaration and possession - Plaintiff traced his traces from the date of Gift Deed - Election Tribunal also held the Plaintiff is the real congress - Properties developed by the funds of plaintiff party - Janatal dala which came in to possession after division from congress , can not hold the title and right and can not lease the same to third party and as such they are liable to be evicted - Apex court granted time to vacate on undertaking =

7.    We have indicated that the  plaintiffs  instituted  the  present  suit
seeking a declaration  of  their  title  and  for  possession  of  the  suit
property and also sought to recover Rs.36,000/- towards past mesne  profits.=

 We have  noticed  that  the  property  in  question  was  gifted  vide
registered gift deed dated 22.4.1949 by Rangaswamy in  favour  of  Bangalore
City Congress Committee.   Plaintiffs could successfully trace  their  title
and interest over the suit property towards that gift deed executed  in  the
year 1949, coupled with the various declarations by the ECI recognizing  the
petitioner as the real Congress and the Judgment  of  this  Court  affirming
the same.

12.   We are also not impressed by  the  arguments  raised  by  the  learned
senior counsel on the plea of  limitation.    So  far  as  Janata  Party  is
concerned, it came into picture only in the year  1977.   On  facts,  it  is
clearly found that Congress (O) had no right in the suit property.   In  the
instant case, Janata Dal  (Secular)  was  impleaded  as  defendant  only  on
14.10.2003 and the disputed property was known as the Congress  Bhavan  till
the formation of Janta Dal in the year 1977.   It is relevant to  note  that
the defendants had never accepted plaintiffs as the owner of  the  property.
On the contrary, their specific case was that  the  1st  defendant  was  the
owner of the property.   On facts, it was found that the 1st  defendant  had
no title over the property in  question.   Further,  the  entire  burden  of
proving that the possession is adverse to that of the plaintiffs, is on  the
defendant.  On the other hand, the  possession  of  the  suit  property  was
throughout of Congress (O) and its successor parties and  not  that  of  the
petitioner  herein.   It  was  after  the  split  in   Janata   Party   and,
subsequently before the filing of the suit, Janata Dal continued  to  be  in
possession of the suit  property.    The  plea  of  limitation  and  adverse
possession was elaborately considered by the Courts below  and  we  find  no
error in the findings recorded by the Courts below on that ground  as  well.
 Further, no substantive question  of  law  arises  for  our  consideration.
The SLP, therefore, lacks  merits and is dismissed.

13.   Considering the facts that the petitioner  is  in  possession  of  the
property for a considerable long period, we are inclined to  grant  time  up
to 31.12.2014 to vacate the  premises,  for  which  the  petitioner  has  to
prefer an  undertaking  before  this  Court  within  one  month  from  today
stating that the petitioner would vacate the premises within the  stipulated
time and that the petitioner would pay the entire arrears of rent  within  a
period of three months and  will  continue  to  pay  the  rent  without  any
default.  If the petitioner commits two consecutive defaults in  payment  of
monthly rent or fails to file the undertaking,  the  time  granted  by  this
Court would not be available and it will be open to the respondents  to  get
the judgment/decree executed.  
2014 ( January - Vol - 1)judis.nic.in/supremecourt/filename=41169

                                                            REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
              SPECIAL LEAVE PETITION (CIVIL) NO. 38991 OF 2013
Janatha Dal Party                            … Petitioner
                                   Versus
The Indian National Congress & Others   … Respondents

                               J U D G M E N T

K. S. Radhakrishnan, J.

1.    We are, in this case, concerned with the ownership and  possession  of
Premises No.  3,  Race  Course  Road,  Bangalore,  ‘A’  scheduled  property,
wherein, at present, the political party Office of Janata Dal  (Secular)  is
situated.   The suit property originally belonged to one Sri C.  Rangaswamy,
who was the resident of Property No. 54, Hospital Road,  Baleput,  Bangalore
City,  executed  a  registered  Gift  Deed  dated  22.4.1949  in  favour  of
Bangalore City Congress Committee which was having its office  at  No.  142,
Cottonpet, Bangalore City, which measured 5330 sq. yards.     The  land  was
donated by the donor for the purpose  of  construction  of  Congress  House,
wherein the All India  Congress  Party  constructed  a  building,  by  name,
‘Congress Bhavan’, in a portion of the suit property.   In  the  year  1969,
there was split within the Indian  National  Congress  giving  rise  to  two
groups, one led by late Smt. Indira Gandhi, under the Presidentship of  late
Sri Jagajivan Ram and the other group led by late Sri S. Nijalingappa.   The
group led by Jagajivan Ram was then called  the  ‘Indian  National  Congress
(J)’, whereas the other group led by  Nijalingappa  was  called  as  ‘Indian
National Congress (O)’.  The split in the party at the centre  had  its  own
effect in the  State  of  Karnataka  as  well.    The  then  Mysore  Pradesh
Congress Party broke up into Congress (J) and Congress (O) corresponding  to
those groups in the All Indian  Congress  Committee  at  the  Centre.   Each
group claimed itself to be the real Indian National Congress.  That  dispute
came up before the Election Commission of India (ECI).

2.    The ECI, applying the test of majority  at  the  organizational  level
and the legislative wings, by its order 11.1.1971  held  that  the  Congress
(J) was the Indian National Congress.        The decision  of  the  ECI  was
upheld by this  Court  in  Shri  Sadiq  Ali  and  another  v.  The  Election
Commission of India, New Delhi and others (1972) 4 SCC  664.   Consequently,
Congress (J) group, formed as the  Indian  National  Congress,  came  to  be
recognized as the Indian National Congress for all purposes.

3.    The General Elections to the Lok Sabha were held  in  the  year  1977.
The  opposition  parties  consisting  of  Congress  (O)  Group  -   led   by
Nijalingappa, Lok Dal headed by late Sri Charan Singh, Jana Sangha – led  by
Sri A.B. Vajapayee and Congress for Democracy - led  by  Sri  Jagjivan  Ram,
fought elections together as one front  under  the  name  of  Janata  Party.
Congress was defeated in that election.  Janata Party formed the  Government
at the Centre, but did not last  long.   In  the  year  1978,  there  was  a
further split within the Congress. National Convention of the  Congress  was
held at New Delhi on 1.1.1978 and 2.1.1978, in  which  members  of  the  All
India Congress Committee,  Members  of  Parliament,  members  of  the  State
Legislatures and  Congress  candidates  participated  and  they  unanimously
elected Smt. Indira Gandhi as  the  President,  though  Sri  K.  Brahmananda
Reddy was also in the fray.  ECI was called upon to examine that dispute  as
well.  Later, Sri D. Devaraj Urs succeeded  Sri  Brahmananda  Reddy  as  the
President  of  that  group,  which  came  to  be  known  as  Congress   (U).
However, Indira Gandhi continued to be the leader of  the  main  body  which
was identified as  the  Congress  (I).   The  Election  Commission  allotted
separate symbols to the Congress (U) and (I) groups.   The election  to  the
Lok Sabha took place in December 1979 and Congress (I)  was  voted  back  to
the Lok Sabha.

4.    The  Election  Commission,  in  the  meantime,  resolved  the  dispute
pending before it and recognized Indira  Gandhi  as  the  President  of  the
Party, known by the name of Congress (I). It was also held  that  the  group
led by D. Devaraj Urs, known by the  name  of  Congress  (U),  was  not  the
Congress, leaving liberty to that group to approach the Commission  for  its
recognition as a party, taking a different name for itself. D. Devaraj  Urs,
purporting to be the  President  of  Congress  (U),  filed  a  petition  for
special leave to appeal to this Court against the order  of  the  ECI  dated
23.7.1981.  This Court,  after  issuing  notices  to  all  the  parties  and
hearing counsel on either side, dismissed  the  Special  Leave  Petition  on
14.8.1981.

5.    We have narrated the above facts to indicate that the  suit  property,
all other properties and funds belonging to or referred to as  belonging  to
the Congress are thus the properties and funds of the 1st Plaintiff  herein.
  Similarly, all properties  and  funds  belonging  to  or  referred  to  as
belonging to the erstwhile Mysore Pradesh Congress  Committee  or  the  KPCC
thus belong to the 2nd Plaintiff  herein.   The  ‘A’  Schedule  property  is
owned by 2nd and 1st plaintiffs herein.   The  land  comprised  therein  was
acquired by the erstwhile Mysore Pradesh Congress Committee, as it was  then
called, and it constructed the buildings  standing  in  the  suit  property,
which was earlier known as Congress Bhavan.

6.    We have already indicated that Janata Party came  into  possession  of
the schedule property in question in the year 1977.  During the period,  the
above mentioned property was under the control of Congress (O)  group.   Two
lease deeds were executed in respect of two portions  of  the  vacant  land,
vide  lease  deeds  dated  22.1.1971  and  10.4.1971,  in  favour   of   3rd
respondent.  After the Janata Party came in possession  in  the  year  1977,
the previous Janata Party, a unit of  1st  defendant,  granted  lease  of  a
portion of the plaint ‘A’, schedule property in favour of 4th  defendant  on
04.08.1981,  of which defendants 5 to 8 are partners, the portion leased  is
described in the plaint ‘C’ schedule.   The Janata  Party  or  the  previous
Janata Party had no right, title or  interest  for  granting  lease  of  the
plaint ‘C’.   Defendants 9-12 are stated to be the tenants  in  portions  of
the building constructed in ‘A’ schedule property, having taken the same  on
lease from the 1st defendant.

7.    We have indicated that the  plaintiffs  instituted  the  present  suit
seeking a declaration  of  their  title  and  for  possession  of  the  suit
property and also sought to recover Rs.36,000/- towards past mesne  profits.
      Defendant 1  and  2  filed  their  written  statements  on  10.11.1983
contesting the suit, but the factual details  were  not  disputed  as  such.
But, it was pleaded that the decision taken by the ECI or  the  judgment  of
this Court in Sadiq Ali (supra) would not confer  any  title,  ownership  or
possession of the  suit  property  on  the  plaintiffs.   According  to  the
defendants, throughout, the above mentioned property was in  the  possession
of Congress (O), and after its merger, it was in the  possession  of  Janata
Party and,  at  no  point  of  time,  the  plaintiffs  were  in  possession.
Further, it was also pleaded that the suit itself was barred by the  law  of
limitation.  Defendants 4 to  6  filed  a  written  statement  on  31.7.1984
disputing the plaintiffs’ right to  bring  the  suit  on  behalf  of  Indian
National Congress.    They pleaded that the Congress (O) continued to be  in
possession as the absolute owner of the suit property.  Further, it is  also
stated that Congress (O) and some other political  parties  joined  together
and constituted Janata Party and Congress (O) was one  of  the  constituents
of Janata Party, and the property in question became the property of  Janata
Party and, since 1977, Janata Party has been enjoying the suit property  and
they were having their rights to lease out the property to other  contesting
defendants.

8.    On the basis of the pleadings of the parties, the trial  Court  framed
24 issues.  On behalf of the plaintiffs, 5 witnesses were  examined  and  17
documents were exhibited.    On  behalf  of  defendants,  2  witnesses  were
examined and 18 documents were exhibited.  The trial Court, after  examining
the rival contentions, and, on facts, came to the conclusion  that  Congress
(O), which was led by Nijalingappa, lost its  identity  as  Indian  National
Congress by virtue of  the  decision  of  the  Election  Commission  and  as
pointed out by this Court in Sadiq Ali case.    The trial  Court  also  held
that this Court recognized the group led by Jagjivan Ram and  Indira  Gandhi
as the Indian National Congress.  Consequently, the properties and funds  of
Indian National Congress, before its split in 1969,  would  be  of  Congress
(J) lead by Jagjivan Ram and Indira Gandhi and it would not be the  property
of the dissident group which was identified as Congress (O).   On facts,  it
was noticed that Congress (O) was  subsequently  merged  with  Janata  Party
and, on account of said merger, Janata Party would not acquire ownership  of
the suit schedule property.  It was held that since  Janata  Party  was  not
the owner of the suit property, it had no right to grant lease in favour  of
4th defendant and grant of such lease by Janata Party  would  not  bind  the
plaintiffs.  Similarly, it was also held that the  grant  of  lease  in  ‘C’
schedule property in favour of 3rd defendant  by  the  President  of  Mysore
Pradesh Congress Committee, a unit of Congress (O) party,  was  illegal  and
was not preceded by approval or  permission  of  Indian  National  Congress.
The trial Court also rejected the plea of adverse possession and  limitation
and held that the plaintiffs have  succeeded  in  establishing  their  title
over the properties in question and, consequently, held that  the  plaintiff
is entitled to recovery of possession and also mesne profits.  Aggrieved  by
the same, Janata Party filed RFA No. 2011 of  2005  which  was  heard  by  a
Division Bench of the  High  Court.   The  High  Court  concurred  with  the
findings recorded by the  trial  Court  and  dismissed  the  appeal  by  its
judgment dated 11.10.2013, against which this SLP has been preferred.

9.    Shri Gopal Subramanium,  learned  senior  counsel  appearing  for  the
petitioner, reiterated all the factual contentions raised before  the  trial
Court as well  as  the  High  Court  based  on  the  basis  of  the  written
statements filed by the contesting respondents and  submitted  that  neither
the decision of the ECI  nor  the  judgment  of  this  Court  in  Sadiq  Ali
(supra), would confer any title or possession on  the  plaintiffs  over  the
suit property.  Learned senior counsel submitted that  the  plaintiff  could
succeed in establishing their title and possession  only  on  the  basis  of
independent documents and not on the basis of the decision  of  the  ECI  or
the judgment of this Court in  Sadiq  Ali.    Learned  senior  counsel  also
submitted that the High Court has erred in noticing that Article 65  of  the
Limitation Act, 1963,  specifies  that  the  limitation  for  possession  of
immovable property or any interest therein based on title is  12  years  and
the time from which the period begins to run is when the possession  of  the
defendant became adverse to the plaintiff.  Learned senior  counsel  pointed
out that, in the  instant  case,  possession  of  the  defendant  and  their
predecessor in title became adverse to that of the plaintiff  more  than  12
years prior to the filing of the suit and, therefore, the  suit  was  liable
to be dismissed solely on the ground of limitation.

10.   We have heard the arguments at length and have also gone  through  the
pleadings of the parties as well as the judgments of the Courts  below.   We
find it difficult to accept the contention  raised  by  the  learned  senior
counsel that the decision of the ECI dated  11.1.1971  or  the  judgment  of
this  Court in Sadiq Ali (supra) would have no bearing, so far as the  facts
of this case are concerned.    The question as to which of the  two  groups,
Congress (J) or Congress (O) (the then Congress Party) should be  recognized
as the Congress, as already indicated, came  before  the  ECI.   ECI,  after
applying  the  test  of  majority  at  the  organizational  level  and   the
legislative wings, took the view that Congress (J) group  of  Congress  came
to be recognized as the Congress for all purposes.  The  order  of  ECI  and
this Court clearly indicate   that the Congress then led  by  Indira  Gandhi
had established rights on the properties  in  question.   The  Courts  below
have narrated in detail how the suit property came into  the  hands  of  the
plaintiffs and how the Congress (O) followed by Janata Party ceased to  have
any right over the suit property in question.    Since,  on  facts,  it  was
found that the defendants have no right over the property in  question,  the
various lease deeds executed by them also cannot stand in the eye of law.

11.   We have  noticed  that  the  property  in  question  was  gifted  vide
registered gift deed dated 22.4.1949 by Rangaswamy in  favour  of  Bangalore
City Congress Committee.   Plaintiffs could successfully trace  their  title
and interest over the suit property towards that gift deed executed  in  the
year 1949, coupled with the various declarations by the ECI recognizing  the
petitioner as the real Congress and the Judgment  of  this  Court  affirming
the same.

12.   We are also not impressed by  the  arguments  raised  by  the  learned
senior counsel on the plea of  limitation.    So  far  as  Janata  Party  is
concerned, it came into picture only in the year  1977.   On  facts,  it  is
clearly found that Congress (O) had no right in the suit property.   In  the
instant case, Janata Dal  (Secular)  was  impleaded  as  defendant  only  on
14.10.2003 and the disputed property was known as the Congress  Bhavan  till
the formation of Janta Dal in the year 1977.   It is relevant to  note  that
the defendants had never accepted plaintiffs as the owner of  the  property.
On the contrary, their specific case was that  the  1st  defendant  was  the
owner of the property.   On facts, it was found that the 1st  defendant  had
no title over the property in  question.   Further,  the  entire  burden  of
proving that the possession is adverse to that of the plaintiffs, is on  the
defendant.  On the other hand, the  possession  of  the  suit  property  was
throughout of Congress (O) and its successor parties and  not  that  of  the
petitioner  herein.   It  was  after  the  split  in   Janata   Party   and,
subsequently before the filing of the suit, Janata Dal continued  to  be  in
possession of the suit  property.    The  plea  of  limitation  and  adverse
possession was elaborately considered by the Courts below  and  we  find  no
error in the findings recorded by the Courts below on that ground  as  well.
 Further, no substantive question  of  law  arises  for  our  consideration.
The SLP, therefore, lacks  merits and is dismissed.

13.   Considering the facts that the petitioner  is  in  possession  of  the
property for a considerable long period, we are inclined to  grant  time  up
to 31.12.2014 to vacate the  premises,  for  which  the  petitioner  has  to
prefer an  undertaking  before  this  Court  within  one  month  from  today
stating that the petitioner would vacate the premises within the  stipulated
time and that the petitioner would pay the entire arrears of rent  within  a
period of three months and  will  continue  to  pay  the  rent  without  any
default.  If the petitioner commits two consecutive defaults in  payment  of
monthly rent or fails to file the undertaking,  the  time  granted  by  this
Court would not be available and it will be open to the respondents  to  get
the judgment/decree executed.


                                        ………………………….J.
                                        (K. S. Radhakrishnan)






                                        ………………………….J.
                                        (Vikramajit Sen)
New Delhi,
January 21, 2014.

Accident claim - 100% disability - for reducing the claim, high court has to assign the reasons - in the absence of reasons, order not maintainable - Tribunal fixed income at Rs.5000 per month as a senior electrician - claimed Rs.26 lakhs, tribunal awarded Rs. 14 lakhs and odd , High court with out assigning reason reduced it for Rs. 9 lakhs and odd - Apex court set aside the order of high court and confirmed the award of Tribunal = M.D. JACOB ... APPELLANT VS. UNITED INDIA INSURANCE LTD. & ANR. ... RESPONDENTS = 2014 ( January - Vol - 1)judis.nic.in/supremecourt/filename=41165

Accident claim - 100% disability - for reducing the claim, high court has to assign the reasons - in the absence of reasons, order not maintainable - Tribunal fixed income at Rs.5000 per month as a senior electrician - claimed Rs.26 lakhs, tribunal awarded Rs. 14 lakhs and odd , High court with out assigning reason reduced it for  Rs. 9 lakhs and odd - Apex court set aside the order of high court and confirmed the award of Tribunal =
The appellant was a victim of road accident on 27th  July,  1997.   On
account of several serious injuries including amputation  of  complete  left
hand, severe injuries in head, dislocation of bones in hip  and  both  knees
and severe injuries in foot, the Doctor assessed his disability at 100%.
3.    The appellant preferred a claim petition before  the  Motor  Accidents
Claims  Tribunal  at  Chennai  and  sought  compensation  of  Rs.26,00,000/-
(rupees  twenty  six  lacs).  The  Claims  Tribunal  allowed  a  claim   for
Rs.14,20,000/-  (rupees  fourteen  lacs  and  twenty  thousand  only)   vide
judgment dated 9.8.2000 rendered in M.C.O.P. No. 3365 of  1997.   The  claim
allowed on different heads includes:
        i) Loss of income for one year as Rs.60,000/-;
       ii) Special diet and transportation-Rs.50,000/-
      iii) Medical expenses –Rs.50,000/-
       iv) Pain and suffering – Rs.2,00,000/-
        v) Permanent disability – Rs.4,00,000/-
       vi) Loss of future earning – Rs.6,60,000/-


4.    The Insurance Company  preferred  appeal  before  the  High  Court  at
Madras and by the order under appeal dated 13.11.2006 passed in C.M.A.  Nos.
1963 of 2000 and 12 of 2001 the High  Court,  while  maintaining  the  Award
under the first three heads, reduced the amount of  Rs.2,00,000/-  for  pain
and suffering to Rs.1,00,000/-, Rs.4,00,000/- for  permanent  disability  to
Rs.3,00,000/- and Rs.6,60,000/- as loss of future earning to  Rs.3,96,000/-.
 As a result of aforesaid reduction, the appellant has  been  held  entitled
only to Rs.9,56,000/- (rupees nine lacs and  fifty  six  thousand  only)  in
place of Rs.14,20,000/- (rupees fourteen lacs and  twenty  thousands  only).
Assailing the order under appeal on account  of  reduction  of  compensation
under the three heads noted above, learned counsel  for  the  appellant  has
taken us through the materials on  record  including  the  judgment  of  the
Tribunal and the judgment of the High Court under appeal.
5.    It has been shown that the Tribunal has discussed  all  the  available
materials in detail for coming to a cogent and  well  reasoned  finding  for
calculating the loss of future earning on the basis  of  monthly  income  of
Rs.5,000/- whereas the High Court reduced the monthly income  to  Rs.3,000/-
without specifying any reasons for reversing the finding  of  the  Tribunal.
The Tribunal considered oral evidence of the claimant as well  as  documents
such as Ext. P.4 and Ext. P.5 showing that the applicant had  experience  of
working as Electrician and was employed as such.  In the light  of  all  the
relevant materials  the  Tribunal  assessed  the  earning  capacity  of  the
appellant as Rs.5,000/- p.m. and accordingly allowed a  sum  of  Rs.60,000/-
as loss of earning capacity for a period of one year  and  by  adopting  the
multiplier of 11 allowed Rs.6,60,000/- as loss of future earning.
6.    The High Court did not interfere with the multiplier and as  indicated
above, without good reasons treated the monthly income of the  appellant  to
be Rs.3,000/- in place  of  Rs.5,000/-.  Inexplicably  the  High  court  has
retained loss of income for one year to be  Rs.60,000/-  which  is  possible
only if the monthly income is  accepted  to  be  Rs.5,000/-.   There  is  no
reason assigned even for reducing  the  compensation  of  Rs.2,00,000/-  for
pain and suffering to  Rs.1,00,000/-  and  of  Rs.4,00,000/-  for  permanent
disability to Rs.3,00,000/-.
7.    Considering that the appellant had suffered 100%  disability,  in  our
view, the learned Tribunal was quite justified  in  allowing  Rs.14,20,000/-
as total compensation on the basis of monthly  income  of  Rs.5,000/-.   The
judgment of the High Court under appeal  is  therefore  set  aside  and  the
judgment and order of the Tribunal is restored.  The  dues  payable  to  the
appellant on account of this order should be deposited  by  the  respondent-
Insurance Company with the Tribunal within eight weeks along  with  interest
on such amount at the rate of 9% to be paid from the date of  petition  i.e.
27.08.1997. The appellant shall be entitled  to  withdraw  the  said  amount
without any condition.
8.    The appeals are allowed to the aforesaid extent.  No costs.
                                               
2014 ( January - Vol - 1)judis.nic.in/supremecourt/filename=41165

   NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 5601-5602 OF 2007


M.D. JACOB                           ... APPELLANT

VS.

UNITED INDIA INSURANCE
LTD. & ANR.                           ... RESPONDENTS



                               J U D G M E N T



SHIVA KIRTI SINGH, J.


      Heard learned counsel for the appellant and learned  counsel  for  the
respondent-Insurance Company.

2.    The appellant was a victim of road accident on 27th  July,  1997.   On
account of several serious injuries including amputation  of  complete  left
hand, severe injuries in head, dislocation of bones in hip  and  both  knees
and severe injuries in foot, the Doctor assessed his disability at 100%.
3.    The appellant preferred a claim petition before  the  Motor  Accidents
Claims  Tribunal  at  Chennai  and  sought  compensation  of  Rs.26,00,000/-
(rupees  twenty  six  lacs).  The  Claims  Tribunal  allowed  a  claim   for
Rs.14,20,000/-  (rupees  fourteen  lacs  and  twenty  thousand  only)   vide
judgment dated 9.8.2000 rendered in M.C.O.P. No. 3365 of  1997.   The  claim
allowed on different heads includes:
        i) Loss of income for one year as Rs.60,000/-;
       ii) Special diet and transportation-Rs.50,000/-
      iii) Medical expenses –Rs.50,000/-
       iv) Pain and suffering – Rs.2,00,000/-
        v) Permanent disability – Rs.4,00,000/-
       vi) Loss of future earning – Rs.6,60,000/-


4.    The Insurance Company  preferred  appeal  before  the  High  Court  at
Madras and by the order under appeal dated 13.11.2006 passed in C.M.A.  Nos.
1963 of 2000 and 12 of 2001 the High  Court,  while  maintaining  the  Award
under the first three heads, reduced the amount of  Rs.2,00,000/-  for  pain
and suffering to Rs.1,00,000/-, Rs.4,00,000/- for  permanent  disability  to
Rs.3,00,000/- and Rs.6,60,000/- as loss of future earning to  Rs.3,96,000/-.
 As a result of aforesaid reduction, the appellant has  been  held  entitled
only to Rs.9,56,000/- (rupees nine lacs and  fifty  six  thousand  only)  in
place of Rs.14,20,000/- (rupees fourteen lacs and  twenty  thousands  only).
Assailing the order under appeal on account  of  reduction  of  compensation
under the three heads noted above, learned counsel  for  the  appellant  has
taken us through the materials on  record  including  the  judgment  of  the
Tribunal and the judgment of the High Court under appeal.
5.    It has been shown that the Tribunal has discussed  all  the  available
materials in detail for coming to a cogent and  well  reasoned  finding  for
calculating the loss of future earning on the basis  of  monthly  income  of
Rs.5,000/- whereas the High Court reduced the monthly income  to  Rs.3,000/-
without specifying any reasons for reversing the finding  of  the  Tribunal.
The Tribunal considered oral evidence of the claimant as well  as  documents
such as Ext. P.4 and Ext. P.5 showing that the applicant had  experience  of
working as Electrician and was employed as such.  In the light  of  all  the
relevant materials  the  Tribunal  assessed  the  earning  capacity  of  the
appellant as Rs.5,000/- p.m. and accordingly allowed a  sum  of  Rs.60,000/-
as loss of earning capacity for a period of one year  and  by  adopting  the
multiplier of 11 allowed Rs.6,60,000/- as loss of future earning.
6.    The High Court did not interfere with the multiplier and as  indicated
above, without good reasons treated the monthly income of the  appellant  to
be Rs.3,000/- in place  of  Rs.5,000/-.  Inexplicably  the  High  court  has
retained loss of income for one year to be  Rs.60,000/-  which  is  possible
only if the monthly income is  accepted  to  be  Rs.5,000/-.   There  is  no
reason assigned even for reducing  the  compensation  of  Rs.2,00,000/-  for
pain and suffering to  Rs.1,00,000/-  and  of  Rs.4,00,000/-  for  permanent
disability to Rs.3,00,000/-.
7.    Considering that the appellant had suffered 100%  disability,  in  our
view, the learned Tribunal was quite justified  in  allowing  Rs.14,20,000/-
as total compensation on the basis of monthly  income  of  Rs.5,000/-.   The
judgment of the High Court under appeal  is  therefore  set  aside  and  the
judgment and order of the Tribunal is restored.  The  dues  payable  to  the
appellant on account of this order should be deposited  by  the  respondent-
Insurance Company with the Tribunal within eight weeks along  with  interest
on such amount at the rate of 9% to be paid from the date of  petition  i.e.
27.08.1997. The appellant shall be entitled  to  withdraw  the  said  amount
without any condition.
8.    The appeals are allowed to the aforesaid extent.  No costs.


                                  ……………………………………………C.J.I.
                                  (P. SATHASIVAM)



                                                      ……………………………………………………J.
                 (RANJAN GOGOI)



                                                      ……………………………………………………J.
                       (SHIVA KIRTI SINGH)
New Delhi,
January 21, 2014.

-----------------------
6

Juriprudence: Possession Held-In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title-Settled possession or effective possession would protect a person without title even as against the true owner-High Court's order upheld. The plaintiff-respondent was in possession of a piece of land and was raising a construction over it which was objected to by the defendant- appellant claiming that the said land formed part of his property and was owned by him. The plaintiff-respondent filed a suit for declaration of his title, as also his possession, of the disputed land. The trial court found that although the respondent failed to prove his title, he had succeeded in proving his possession over the suit property. Accordingly, it issued an injunction restraining the appellant from interfering with the peaceful possession and enjoyment of the suit property by the respondent. The High Court upheld this order. Hence the appeal. On behalf of the appellant, it was contended that the suit ought not to have been decreed merely on the fact that the respondent was in possession of the suit property since he could not prove his title. =2003 (December - Vol -12) JUDIS.NIC.IN/ S.C. /25710

Dismissing the appeal, the Court HELD : 1. 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 wrongful 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 the 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 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 cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner. [856-A-E] Midnapore Zamindary Co. Ltd. v. Kumar Naresh Narayan Roy, (1924) PC 144, Ramesh Chand Ardawatiya v. Anil Panjwani, [2003] 7 SCC 350,Lallu Yeshwant Singh v. Rao Jagdish Singh, [1968] 2 SCR 203, Nair Service Society Ltd. \. K.C. Alexander, [1968] 3 SCR 1, M.C. Chokalingam v. V. Manickavasagam, [1974] 1 SCC 48, Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, [1989] 4 SCC 131 and Nagar Palika, Jind v. Jagat Singh, Advocate, [1995] 3 SCC 426, relied on. Yar Mohammad v. Lakshmi Das, AIR (1959) All. 1, approved. Salmond on Jurisprudence : 12th Edn., referred to. 2. 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. [856-E-F] Munshi Ram v. Delhi Administration, [1968] 2 SCR 455, Puran Singh v. The State of Punjab, [1975] 4 SCC 518 and Ram Rattan v. State of U.P., [1977] 1 SCC 188, relied on. Horam v. Rex, AIR (1949) All. 564, approved. 3.1. In the present case the Court has found the plaintiff-respondent as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant-appellant 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. [858-C-E] 3.2. 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. [859-C-D] Fakirbhai Bhagwandas v. Maganlal Haribhai, AIR (1951) Bom. 380, approved. Sri Dasnam Naga Sanvasi v. Allahabad Development Authority, AIR All. 418 and Kallappa Rama Londa v.Shivappa Nagappa Aparaj, AIR (1995) Kar. 238, held not applicable. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7662 of 1997.

2003 (December - Vol -12) JUDIS.NIC.IN/ S.C. /25710

CASE NO.:
Appeal (civil) 7662 of 1997

PETITIONER:
Rame Gowda (D) by Lrs.

RESPONDENT:
M. Varadappa Naidu (D) by Lrs. & Anr.

DATE OF JUDGMENT: 15/12/2003

BENCH:
R.C. Lahoti, B.N. Srikrishna & G.P. Mathur

JUDGMENT:
J U D G M E N T

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 oft-
quoted 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 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 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.