Wild Landscape

INJUNCTION is a ‘Possessory Remedy’ in Indian Law

Created: 07 Jul 2024 at 23:29

Saji Koduvath, Advocate, Kottayam.

Introspection

  • Divergent views exist as to injunction against “true owner”.
    • One view is that no injunction can be passed in a suit filed by the person in unlawful possession (against the true owner).
      • See: Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (Two Judge Bench).
    • The other view is that a trespasser also is entitled for injunction (even against the true owner), for, he cannot be evicted otherwise than on “due process of law” (by the true owner).
      • See: Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769 (Three Judge Bench).
  • Legal principles have to be evolved and an authoritative judicial pronouncement has to be penned-down taking note of conflicting views on this subject and laying down cogent and rationale reasoning.

Nutshell of the Contents

  • Possession is a substantive right.
  • It is heritable and transferable.
  • Courts protect settled possession.
  • Injunction is a possessory remedy.
  • It is not necessary for the person claiming injunction, to prove his title.
  • It would suffice if he can prove his lawful possession and that his possession is invaded or threatened to be invaded (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769).
  • Usually, Injunction is not ordered against a true owner.
  • It is not passed to favour a trespasser or a person in unlawful possession.
  • Person in ‘lawful possession’ may get injunction even against true owner – not to disposes, except in due process of law; But, Not After Cancellation (by Court) of the Sale Deed he relied (2022 SCC OnLine SC 258).

Possession is a Substantive Right

  • Possession by itself is a substantive right recognised by law. It is heritable and transferable.
    • Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
    • Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
    • Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864). 

Injunction is a Possessory Remedy

  • It is trite law that courts protect settled possession. It is trite law that courts protect settled possession. Person claiming injunction, need to prove Lawful Possession only.
    • Poona Ram v. Moti Ram, AIR 2019 SC 813
    • Aarthiv. Aruna Gautham. 2015 -1 RCR (Civil) 160,
    • Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769.
    • Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131
    • Munshi Ram v. Delhi Administration, (1968) 2 SCR 455,
    • Puran Singh v. The State of Punjab, (1975) 4 SCC 518
    • Ram Rattan v. State of Uttar Pradesh, (1977) 1 SCC 188.
  • But, an injunction cannot be issued against a true owner or title holder, and in favour of a trespasser or a person in unlawful possession.
    • See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.
    • Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 Kar 1710, 1987 (1) KarLJ 402.
    • Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kar 194, ILR 1985 Kar 3700, 1985 (2) KarLJ 533.
    • Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145

Rame Gowda Case – Person claiming injunction, Need to prove Lawful Possession only

The law on these subjects are clearly laid down in Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769. Following were the fact situation of the case:

  • The suit filed by the plaintiff was based on his title.
  • Declaration of title was not sought for though it was in dispute.
  • The defendant contended that (i) the suit being based on title and (ii) the plaintiff failed in proving his title, the suit should be dismissed without regard to (a) the fact that the plaintiff was in possession and (b) ‘whether the defendant had succeeded in proving his title or not’.

Our Apex Court held that there was no merit in the contentions of the defendant and observed that no one would be permitted to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court, as the law respects possession even if there is no title to support it.

Finally it was held that it was not necessary for the person claiming injunction, to prove his title to the suit land, and it would suffice if he proved 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. Our Apex Court held as under:

  • “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 reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. In Puran Singh and Ors.’s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. The ‘settled possession’ must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase ‘settled possession’ does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a strait-jacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’:
    • i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
    • ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
    • iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
    • iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
  • In the cases of Munshi Ram and Ors. (supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in Horam Vs. Rex  AIR 1949 Allahabad 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property.
  • In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.”

Finally, the Supreme Court held as under:

  • “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.” 

In Kantappa v. Krishnabai, AIR 1995 Kant 213, a decision of the Division Bench of Karnataka High Court (consisting of M.N. Venkatachaliah and N.R. Kudoor, JJ.), has held as under:

  • “An intending transferee under a contract for sale of immovable property, who is put in possession of the properly in part performance of the contract, can as a plaintiff bring an action for the possessory remedy of an injunction in protection of his possession against the transferor”. (Quoted in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145)

CHANGE IN THE VIEW OF THE APEX COURT

  • A person may get injunction against true owner – not to disposes, except in due process of law, If in ‘lawful possession’;
  • But, Not After Cancellation of the Sale Deed (by Court) he relied on.

Our Apex Court held in Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) as under:

  • “9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021) 3 SCC 675, it is observed by this Court that a person in possession of land in the 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. Therefore, the plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.
  • 10. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the “lawful possession” of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff’s possession cannot be said to be “lawful possession”. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.
  • “11.1 … Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.
  • 12. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No.1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-
    • “79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law.
    • It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.”
  • In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:-
    • “28. The expressions ‘due process of law’, ‘due course of law’ and ‘recourse to law’ have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ‘forcibly’ by the true owner taking law in his own hands. All these expressions, however, mean the same thing—ejectment from settled possession can only be had by recourse to a court of law.
    • Clearly, ‘due process of law’ or ‘due course of law’, here, simply mean that a person in settled possession cannot  be ejected without a court of law having adjudicated upon his rights qua the true owner.
    • Now, this ‘due process’ or ‘due course’ condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the ‘bare minimum’ requirement of ‘due process’ or ‘due course’ of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the ‘recourse to law’ stipulation stands satisfied when a judicial determination is made with regard to the first party’s protective action. Thus, in the present case, the plaintiff’s failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.”
  • 12.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
  • 13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No.1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant No.1 – the true owner.”
    • Note: It is not specifically stated in this decision (Prahladji Chenaji v. Maniben Jagmalbhai) that one can resume possession using force.

Section 6 of the Specific Relief Act

Section 6 of the Specific Relief Act allows one to file a suit for recovery of property, on the strength of his prior possession, if he had lost his possession within 6 months of the suit. In such a case, he need not prove his title; and he can succeed on establishing that he has been dispossessed otherwise than in accordance with law within six months.

Sec. 6 of the Specific Relief Act, 1963 reads as under:

  • 6. 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 may be 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.

If Title not Perfected by Adver. Posn, Can one eject a Trespasser After 6 Months

High Courts differ, as pointed out in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179.

Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner.

The law on this matter is laid down in detail in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179. It is observed as under:

  • “6. Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership. Even before the acquisition of statutory title by adverse possession for the requisite period under the Limitation Act, the possessory owner has well defined rights in property. It is now settled beyond all dispute that this interest is heritable, devisable and transferable. This interest is referred to as possessory title as distinct from proprietary title. A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself.
  • Salmond on Jurisprudence, Eleventh edition, observes at page 345 :
    • “In English law possession is a good title of right against any one 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.”
  • and at pages 473 and 474 it is observed:
    • “On the other hand, the thing of which possession is taken may already be the property of some one else. In this case the title acquired by possession is good, indeed, against all third persons, but is of no validity at all against the true owner. Possession, even when consciously wrongful, is allowed as a title of right against all persons who cannot show a better, because a prior title in themselves. Save with respect to the rights of the original proprietor, my rights to the watch in my pocket are much the same whether. I bought it honestly, or found it, or abstracted it from the pocket of some one else. If it is stolen from me, the law will help me to the recovery of it. I can effectually sell it, lend it, give it away, or bequeath it, and it will go on my death intestate to my next of kin. Whoever acquires it from me, however, acquires in general nothing save my limited and imperfect title to it, and holds if, as I do, subject to the superior claims of the original owner.
    • XX XX XX
    • If a possessory owner is wrongfully deprived of the thing by a person other than the true owner he can recover it. For the defendant cannot set up as a defence his own possessory title since it is later than and consequently inferior to, the possessory title of the plaintiff. Nor can he set up as a defence the title of the true owner–the jus tertii as it is called; the plaintiff has a better, because an earlier, title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. The expediency of this doctrine of possessory ownership is clear. Were it not for such a rule, force and fraud would be left to determine all disputes as to possession, between persons of whom neither could show an unimpeachable title to the thing as the true owner of it.”
  • Pollock & Wright in their book ‘Possession in the Common Law’ expressed themselves thus at page 91:
    • “Existing possession, however acquired, is protected against any interference by a mere wrongdoer; and the wrongdoer cannot defend himself by showing a better title than the plaintiff’s in some third person though or under whom he docs not himself claim or justify. ‘Any possession is a legal possession‘–i.e. lawful and maintainable–against a wrong doer.”
  • and at page 95:
    • “It would be possible at first sight to suppose that, as between a succession of independent occupiers who were all wrongdoers as against the true owner, the law must be indifferent, with the result of conferring an absolute title upon the person who happens to he in possession when the time of limitation expires. Reflection, however, shows this to be contrary to the reason and principles of the law. Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the incidents and advantages of a true title. In the language of the modern authorities, ‘Possession is good title‘– nothing less–‘against all but the true owner‘.”
  • 7. The English doctrine of possessory title is expressed in the following terms by Cockburn, C. J., in Asher v. Whitelock, (1865) 35 LJQB 17:
    • “I take it to be established by authority that possession is good against all the world except the person who can show a better title than the one in possession Doe d Hughes v. Dyeball, (1829 Moo & M 346) shews that possession, even for a year, is sufficient against a mere subsequent possession. The whole law of disseisin was founded upon the principle that the desseisin gives title to the disorder against all the world but the disseisee.”
  • 8. Their Lordships of the Judicial Committee of the Privy Council in Perry v. Clissold, 1907 AC 73 at p. 79 decided:
    • “It cannot be disputed that a person in possession of land in the 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. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.”
  • 9. The above is certainly the doctrine of English Law. The rule of English Law that possession is good title against all but the true owner has been adopted by the decisions of the Indian High Courts and also by the decisions of the Judicial Committee of the Privy Councilin the Indian cases. In Khajah Enaetoollah Chowdhry v. Kishen Soondur Surma, (1867) 8 Suth WR 386 at pp. 387 and 388, Dwarkanath Mitter, J. posed the question thus:
    • ”Can the Civil Courts give a decree for immovable property on the bare ground of illegal dispossession in a suit brought after six months from the date of such dispossession, it being borne in mind, however, that the defendant has failed to prove his own title to the same?”
  • and answered the same in the following terms:
    • But we do not see any reason why a mere wrongful dispossess or should require proof from his adversary of anything beyond the illegal dispossession complained of. He himself has not got and never had any title to the land. The act of dispossession committed by him has been entirely without any sanction from law. Justice and equity require that he should be compelled to restore the party wronged by him to the same position which the latter enjoyed before the dale of the illegal ejectment. To adopt the contrary view appears to us to be tantamount to holding out a premium in favour of wrong and violence”
  • and in Hari v. Dhondi, (1906) 8 Bom LR 96 Sir Lawrence Jenkins, C. J. said:
    • “Possession is evidence of ownership, and is itself the foundation of a right to possession.”
  • and Subramania Ayyar, J. in Mustapha Saheb v. Santha Pillai, (1900) ILR 23 Mad 179 at p. 182 said:
    • “that the rule of law that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that “possession was without any title” is so firmly established as to render a lengthened discussion about it quite superfluous.”
  • 10. In Sundar v. Parbati, (1890) ILR 12 All 61 (PC) decided by their Lordships of the Judicial Committee of the Privy Council, the suit was for partition and recovery of possession filed by the junior widow of a deceased Hindu against the senior widow who denied the junior widow’s right to separate possession and contended that she was entitled to manage the whole estate. The Subordinate Judge decreed the plaintiff’s suit. A Bench of the Allahabad High Court reversed the decree of the Subordinate Judge and dismissed the suit. Lord Watson delivering the Judgment of the hoard, observed at page 57:
    • “If it were necessary to determine the point, their Lordships would probably have little difficulty in accepting the opinion of the High Court that a Hindu Brahman cannot lawfully adopt his own sister’s son. But apart from that question, and also from any question touching the legal effect of Baldeo Sahai’s will the fact of joint possession by the two widows of the estates which belonged to the testator, ever since the death of Premsukh in 1879, appears to them to be sufficient for disposing of this suit in favour of the appellant. Their Lordships are at a loss to understand, at all event to appreciate, the grounds upon which the Chief Justice endeavours to differentiate between the authorities which he cites, the import of which he correctly states, and the position of the parties to this action. Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they were entitled to maintain their possession against all coiners except the heirs of Premsukh or of Baldco Sahai, one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants is in the field, and the widows have therefore, each of them, an estate or interest in respect of her possession, which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them. It is impossible to hold that a joint estate is not also partible; and their Lordships will therefore humbly advise Her Majesty that the judgment of the High Court ought to be reversed, and that of the Subordinate Judge restored.”
  • The above principle was reiterated by their Lordships of the Judicial Committee in Ismail Ariff v. Mahomed Ghous, (1893) ILR 20 Cal 834 (PC). At page 843 their Lordships observed:
    • “It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff’s case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Section 9 of the Specific Relief Act (Act 1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession. Die Appellate Court, in accordance with the judgment above quoted, has dismissed the suit. Consequently, the defendant may continue to wilfully, improperly and illegally interferes with the plaintiff’s possession, as the learned Judge say he has done, and the plaintiff has no remedy. Their Lordships are of opinion that the suit should not have been dismissed; and that the plaintiff was entitled in it to a declaration of his title to the land.”
  • The principle underlying the rule that possession is a good title against all the world except the person who can show a better title is staled thus in Narayana Row v. Dharma-char, (1903) ILR 26 Mad 514 at p. 518:
    • “The principle underlying the rule of law in question seems to be that acquisition of title by operation of the law of limitation being a lawful mode of acquiring title, the person in peaceable possession is entitled to maintain such possession against all but the true owner and that therefore a third party who has no better title than the person in possession has no right to invade upon the possession of the latter and interrupt or arrest his lawful acquisition of title by his continuing to remain in possession for the statutory period. It is the true owner alone that is entitled to assert his title as against the person wrongfully in possession, and prevent such wrongful possession ripening into prescriptive title. But a third party who without deriving title under the true owner and without his authority, interrupts such possession before it has ripened into prescriptive title, is a trespasser, not only against the true owner, but also against the party actually in possession; and, subject to the law of limitation, either of them is entitled to maintain a suit in ejectment against such intruder as a trespasser.”
  • 11. We are therefore of the view that a person in juridical possession, if dispossessed by a trespasser without title, can recover possession on the sole ground of his prior possession even beyond six months from the date of dispossession and this is enough to dispose of the second appeal.
  • 12. But the learned advocate for the appellant relying on the decision in Nisa Chand Gaita v. Kanchiram Bagani, (1899) ILR 26 Cal 579 submitted that mere previous possession for any period short of the statutory period of twelve years will not entitle a plaintiff to a decree for recovery of possession in a suit brought more than six months after dispossession, even if the defendant could not establish any title to the disputed land. The point which arose for decision in (1899) ILR 26 Cal 579 was whether the plaintiff is entitled to a decree merely upon proof of previous possession for a period less than twelve years, on the ground that the defendant has established no title, the suit having been brought more than six months after the date of dispossession. (1893) ILR 20 Cal 834 (PC) was distinguished thus:
    • “There (in 1893) ILR 20 Cal 834 (PC) the plaintiff was in possession when he brought his suit, whereas in the present case the plaintiff is out of possession. What the plaintiff asked for in the case of Ismail Ariff v. Mahomed Ghous (1893-20 Cal 834 PC) was a decree declaring his right, and an injunction restraining the defendant from disturbing his possession; what the plaintiff asks for in this case is only recovery of possession; and what was said by their Lordships of the Judicial Committee with reference to the plaintiff’s right to obtain this relief is to be found in the following passage of their judgment:
    • “It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff’s case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Section 9 of the Specific Relief Act (1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should he able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession.”
    • This shows, as we understand the judgment, that the reason for their Lordships’ decision was this that as the plaintiff, had his position been rendered somewhat worse by his being dispossessed, could, by instituting a suit within six months for recovery of possession under Section 9 of the Specific Relief Act, have recovered possession even as against a person who might establish a better title, it was only right and just that if he brought his suit before he was dispossessed he could be declared entitled to retain possession as against a mere wrong-doer, and should obtain an injunction restraining the wrong-doer from interfering with his possession. But, though that was so in the case of a plaintiff who was in possession, and had, therefore, a possibility open to him of being restored to possession upon mere proof of possession, by instituting a suit under section 9 of the Specific Relief Act upon being dis-possessed, it does not follow that it should be so in the case of a plaintiff who had been in possession, and allowed more than six months to elapse after his dispossession, and therefore, lost the possibility of recovering possession, by a suit under Section 9 of the Specific Relief Act, upon mere proof of previous possession.”
  • 13. Distinguishing (1893) ILR 20 Cal 834 (PC) in the above manner, the Calcutta High Court in (1899) ILR 26 Cal 579 sought support for the dictum in the following observations of the Privy Council in J. P. Wise v. Ameerunnissa Khatoon, (1879-80) 7 Ind App 73 at p. 80 (PC):
    • “It is quite clear that the plaintiffs have failed to make out a title. The Defendants were put into possession by the Government, who were entitled to the lands, and they were ordered by the Magistrate under the Code of Criminal Procedure to be retained in possession. If the Plaintiffs had wished to contend that the Defendants had been wrongfully put into possession and that the Plaintiffs were entitled to recover on the strength of their previous possession without entering into a question of title at all, they ought to have brought their action within six months under Section 15 of Act XIV of 1859; but they did not do so. The High Court, with reference to this point say (and in their Lordships’ opinion, correctly say) : “Further, de facto possession having been given to the Defendants under Section 318 of the Code of Criminal Procedure, in accordance with the Deputy Collector’s award, the plaintiff will not be entitled to a decree until and unless he can show a better title to these lands than the Defendants. The fact that the Plaintiffs’ posses sion as regards B, C, and D was confirmed under Act IV of 1840, and that the defendants Nos. 2 and 3 unsuccessfully endeavoured to dis-turb them by regular suit, does not bar the right of Government. Section 2 of Act IV of 1840 only affects persons concerned in the dispute. If Kalkini-hud belonged to a private individual he might have reduced into his own possession lands which had accreted to the estate and which undoubtedly were his. But lands to which he is unable to make out a title cannot he recovered on the ground of previous possession merely, except in a suit under Section 15 of Act XIV of 1859, which must be brought within six months from the time of that dispossession.”
  • The Calcutta High Court on an interpretation of (1893) ILR 20 Cal 834 (PC) and (1879 80) 7 Ind App 73 (PC) has therefore taken the view that Section 9 of the Act operates as a bar to the institution of suits in which the claim for possession of any immovable property is based on anything but proprietary title.
  • 14. On the other hand, the decision in (1893) ILR 20 Cal 834 (PC) was relied on by the other High Courts for the position that possessory title can be made the foundation for suits in ejectment filed after six months from the date of dispossession against trespassers who have no title.
  • 15. The effective answer to the basis of the decision of the Calcutta High Court in (1899) ILR 26 Cal 579 has been furnished by Subra-mania Ayyar and O’ Farrell JJ. in (1900) ILR 23 Mad 179 at p. 183. Subramania Ayyar, J. at page 183 observed:
    • “And with reference to the grounds on which decision in (1899) ILR 26 Cal 579 seems to rest, it is necessary to make but two observations. The first is that Section 9 of the Specific Relief Act cannot possibly be held to take away any remedy available with reference to the well-recognised doctrine expressed in Pollock and Wright on Possession thus:–Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owners title, (at page 19). The second observation is that in (1879-80) 7 Ind App 73 (PC) relied on in (1899) ILR 26 Cal 579 the defendant had a better right than the plaintiff, since the possession of the former was authorised by the Government whose properly the land in dispute was and consequently nothing said by their Lordships in a case wherein such were the facts can rightly be con-strued as intended to lay down the law differently from what it bad been all along understood to be.” and O’ Farrell, J. observed:
    • “All the dictum of the Privy Council in (1879-80) 7 Ind App 73 (PC) appears to amount to is this, that where a plaintiff in possession without any title seeks to recover possession of which be has been forcibly deprived by a defendant having a good title, he can only do so under the provisions of Section 9 of the Specific Relief Act and not otherwise.”
  • 16. The Madras High Court again in (1903) ILR 26 Mad 514 relying on (1893 ILR 20 Cal 834 (PC) took the view that Section 9 of the Act is in no way inconsistent with the position that as against a wrong-doer, prior possession of the plaintiff in an action of ejectment is sufficient title, even if a suit is brought more than six months after the date of dispossession and the wrong-doer cannot successfully resist the suit by showing that the title and right to possession are in a third person, and a plea of jus tertii is no defence unless the defendant can show that the act complained of was done by authority of the true owner and it is immaterial however short or recent the plaintiff’s possession was. The only effect of Section 9 of the Act is that if a summary suit be brought within the time prescribed by that Section, the plaintiff therein who was dispossessed otherwise than in due course of law will be entitled to be reinstated even if the defendant who thus dispossessed him be the true owner or a person authorised by or claiming under him, but a decree in such a suit will not have the force of res judicata on the question of title.
  • 17. We are in respectful agreement with the observations in (1900) ILR 23 Mad 179 and hold that the decision in (1899) ILR 26 Cal 579 has proceeded on an incorrect interpretation of the decisions in (1893) ILR 20 Cal 834 (PC) and (1879-80) 7 Ind App 73 (PC):
  • 18. There remains only to consider the decision of Mr. Justice Raman Nayar in Vasudeva Kurup v. Ammini Amma 1964 Ker LT 468 where it was held that a person in possession without title is entitled to remain in possession even as against the lawful owner until evicted in due course of law and is therefore entitled to get an order of injunction restraining the true owner from disturbing his possession. The right of a person in possession without title to get an injunction on the basis of possessory title against the true owner is not a point arising in the second appeal and we are not expressing any opinion on that aspect. The point decided in 1964 Ker L. T. 468 has no direct bearing on the question to be decided in the second appeal except that possessory title is recognised as the foundation of a claim for maintaining one’s possession. This only sup ports the view we are taking in this appeal.”

‘Possession is good against all but the True Owner’ & Sec. 6 of the Sp. Relief Act

The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73. In this decision it was also pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner acquires an absolute title.

The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’.

In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:

  • “17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
  • 1907 AC 73 reaffirmed the principle by stating quite clearly:
    • “It cannot be disputed that a person in possession of land in the 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. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
  • Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”

In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:

  • “9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence states:­
    • “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.
    • x x x x x
    • In English law possession is a good title of right against any one 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.
    • 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).”
  • 10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
  • 11. It was also observed by this Court in Nair Service Society Ltd. (supra) 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 the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”

Settled Possession and Established Possession

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘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’. It held further as under:

  • “13. 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.”

Possessory title

In Somnath Barman v. Dr. S. P. Raju, AIR 1970 SC 846, 1969-3 SCC 129 (KS Hegde & JC Shah, JJ.), it was observed as under:

  • “In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff’s lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail’ Ariff v. Mohamed Ghouse(I.L.R.20 1.A.99), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the, possession of the plaintiff was a sufficient evidence of title as owner against the defendant.”

Possession is Good Title

In Somnath Barman v. Dr. S. P. Raju AIR 1970 SC 846, 1969-3 SCC 129 our Apex Court relied on Narayana Row v. Dharmachar, ILR XXVI Mad. 514, where the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession was, under the Indian, as under the English law, good title against all but the true owner. 

A Trespasser Cannot Resist Recovery Showing Title in a Third Person

A trespasser on a property in possession of another cannot successfully resist the suit by showing that the title and right to possession are in a third person. Our Apex Court, in Somnath Barman v. Dr. SP Raju, AIR 1970 SC 846, 1969-3 SCC 129,  approved the above view following the following decisions:

  • Krishnarav Yashvant v. Vasudev Apaji Ghotikat, ILR 8, Bom. 371;
  • Umrao Singh v. Ramji Das, ILR 36 All. 51;
  • Wali Ahmad Khan v. Ahjudhia Khandu, ILR XIII All 537;
  • Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat. 222;
  • Narayana Row v. Dharmachar, ILR XXVI Mad. 514.

The Apex Court, in Somnath Barman v. Dr. SP Raju, AIR 1970 SC 846, 1969-3 SCC 129, held that the contrary view taken by the Calcutta High Court in the following decisions were incorrect –

  • Debi Churn Boldo v. Issur- Chunder Manjee(ILR IX Cal. 39),
  • Ertaza Hossein and Anr. v. Bany Mistry(ILR IX Cal. 130.) 
  • Puremeshur Chowdhry and Ors. v. Brijo Lall Chowdhry(ILR XVII Cal. 256;
  • Nisa Chana Goita and Ors. v. Kanchiram Bagani, ILR XXVI Cal. 579.

See Blog (Click): When ‘Possession Follows Title’; ‘Title Follows Possession’?

Mandatory Injunction – To Preserve Status Quo of the Last Non-Contested Status

Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down in this decision that interlocutory mandatory injunctions are granted to:

  • (i) preserve or restore the status quo ante, of the last non-contested status which preceded the pending controversy, or
  • (ii) to compel the undoing of those acts that have been illegally done, or
  • (iii) the restoration of that which was wrongfully taken from the party complaining.

It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.

Read Blog: The Law and Principles of Mandatory Injunction

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other

In Anima Mallick v. Ajoy Kumar Roy, (2000) 4 SCC 119, our Apex Court held that where the sister gave possession as gratuitous to her brother, the sister could reclaim such possession even without knowledge of the brother; and that ‘no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (Relied on in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; AIR 2020 SC 1496.)

Person in possession can use Reasonable Force to keep out a Trespasser

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:­ 

  • “8. 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 the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.”

See Blog (Click): Civil Rights and Jurisdiction of Civil Courts

Possession Follows Title and Adverse Possession

It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144 that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

  • “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

Adverse Possession Inchoate until title is upheld by a Competent Court

One can acquire right of easement and adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until the such title is upheld by a competent court. It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court. See also:

  • Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in: Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574; Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97;
  • D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314..
  • See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

Possession is heritable and transferable

Possession is a heritable and transferable right. [See: Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186]. A settled possession can be protected by court-injunction.

See Blog: Adverse Possession: An Evolving Concept

When Plaintiff Claims Title, He has to Prove Title in Injunction Suit

In Yamuna Nagar Improvement Trust v.  Khariati Lal, AIR 2005 SC 2245; (2005) 10 SCC 30, it is held as under:

  • “In our opinion, when the plaintiff had approached the court for permanent injunction claiming to be owner of the property, it was his duty to prove that he was the owner of the property, the said property remained in his possession and that the defendant had no right title or interest therein. Since the plaintiff failed to prove his case the suit was liable to be dismissed.”

Plaintiff has to plead – Who the owner is, if he claims possession

In Maria Margadia Sequeria v. Erasmo Jack De Sequeria, AIR 2012 SC 1727, it is held as under:

  • “63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum. (Quoted in: Ibrahim v. Saythumuhammed, 2013 (4) KLT 435.)
  • “70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
    • .(a)    who is or are the owner or owners of the property;
    • (b)    title of the property;
    • (c)    who is in possession of the title documents
    •  (d)    identity   of   the   claimant   or   claimants   to possession;
    • (e)    the date of entry into possession;
    • (f)    how   he   came   into   possession   –   whether   he purchased the property or inherited or got the same in gift or by any other method;
    • (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
    • (h) If taken on rent, license fee or lease – then insist on rent deed, license deed or lease deed;
    • who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
    • (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
    • (k) basis of his claim that not to deliver possession but continue in possession.”

Read in this Cluster:

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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INJUNCTION is a ‘Possessory Remedy’ in Indian Law

INJUNCTION is a ‘Possessory Remedy’ in Indian Law

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2024-07-07 23:29:20 +0000 UTC
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Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar

Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar

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2024-07-07 23:29:20 +0000 UTC
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‘Possessory Title’ in Indian Law

‘Possessory Title’ in Indian Law

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2024-07-07 23:29:20 +0000 UTC
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