Mahaganapathi Kshethra Samithi represented by its President, N.K. Gopalankutty Nair v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** **WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929** ## **SA.No. 54 of 1994(F)** **-----------------------------** **AS.73/1991 of SUB COURT, SULTHAN BATHERY OS.261/1985 of MUNSIFF COURT, KALPETTA** **....................** ## **PLAINTIFF / APPELLANT/ APPELLANT** **-----------------** **MAHAGANAPATHI KSHETHRA SAMITHI REP.BY ITS PRESIDENT, N.K. GOPALANKUTTY NAIR, AGED 65 YEARS, S/O. RARU @ RAMAKURUP, RESIDING AT KOLAGAPPRA, SULTHAN'S BATTERY TALUK WYNAD DISTRICT.** ## **BY ADV. SRI. M.GOPIKRISHNAN SRI.A.P.CHANDRASEKHARAN** ## **DEFENDANTS 1 & 3 TO 10/ RESPONDENTS / RESPONDENTS** - **----------------------** **1. STATE OF KERALA REP.BY THE COLLECTOR OF WYNAD DISTRICT.** - ***2. M.NARAYANI AMMA, D/O. VELAPPAN NAIR, AGED 68 YEARS, RESIDING AT NENMENI VILLAGE, SULTHAN'S BATTERY TLAUK WYNAD DT. (DIED)** **3. MRS. SANTHA NARAYANAN, W/O. LATE C.V.NARAYANAN AGED 55 YEARS, RESIDING AT VENGERI AMSOM AND DESOM, KOZHIKODE TALUK.** **4. C.V.SURESH BABU, S/O. LATE C.V. NARAYANAN, AGED 35.YEARS, RESIDING AT DO. DO.** **5. C.V.SREENATH, S/O. LATE C.V.NARAYANAN AGED 33 YEARS, RESIDING AT DO. DO.** **6. C.V.SREEPRASAD, S/O. LATE C.V.NARAYANAN AGED 31 YEARS, RESIDING AT DO. DO.** **7. C.V.JAYADEVI, S/O. LATE C.V.NARAYANAN AGED 29 YEARS, RESIDING AT DO. DO.** ## **SA. NO.54/1994** **8. C.V.VIJAYAN, S/O. LATE C.V.NARAYANAN AGED 27 YEARS, RESIDING AT DO. DO.** **9. P.JINAKANAKAM, D/O. KANNAN, AGED 14 YEARS, (MINOR), REP.BY GUARDIAN 3RD RESPONDENT, MRS. SANTHA NARAYANAN, RESIDING AT DO. DO.** **ADDL. R10 TO R12 ARE IMPLEADED.** **10. M.SAROJINI AMMA (DAUGHTER) AGED 60 EYARS, MANJATH VEEDU,, AMBUKUTTY, AMBALAVAYAL VILLAGE, SULTHAN BATHERY.** - **11 K.BHAGEERATHAN, S/O. KUNJAN NAIR, AGED 57 YEARS, OF DO. DO.** **12. KUNHAN NAIR, S/O. KUNJAN NAIR, AGED 50 YEARS, DO. DO.** **ADDL. R10 TO R12 ARE IMPLEADED AS THE LR'S OF THE DECEASED SECOND RESPONDENT VIDE ORDER DT. 20.7.07 IN IA. 964/07.** **BY ADV. SRI.D.KRISHNA PRASAD GOVERNMENT PLEADER - R1 SRI.K.PRAVEEN KUMAR SRI D NARENDRANATH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2008 , ALONG WITH SA NO. 669 OF 19 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **S.A. NO.54/1994** ## **ORDER ON CMP. NO.1896/1996 IN SA. NO.54/1994** ## **DISMISSED** ## **06.02.2008** **SD/- M.SASIDHARAN NAMBIAR, JUDGE** _**/**_ **TRUE COPY/** **P.A. TO JUDGE** **tss** ## **M.SASIDHARAN NAMBIAR,J.** --------------------------------------S.A.NOs.54/94 & 669/95 ---------------------------------------- Dated 6[th] February 2008 ## **J U D G M E N T** Plaintiff in O.S.261/1985 on the file of Munsiff court, Kalpetta is the appellant in S.A.54/1994. Defendants 1, 3 and additional defendants who are impleaded as legal heirs of the deceased second defendant are the respondents. Legal heirs of second defendant and third defendant are the appellants in S.A.669/1995. Plaintiff and first defendant are the respondents in S.A.669/1995. Subsequent to the filing of the appeal, second respondent/third defendant died. His legal heirs were impleaded as additional respondents in S.A.54/1994 and additional appellants in S.A.669/1995. Plaint schedule property in O.S.261/1985 is 5.4730 hectares in survey No.478,479,464/1A1 and 480 which was resurveyed and included in survey No.632/2 of Batheri village of Sulthan Bathery Taluk. Admittedly it originally belonged to the Government. Appellant in S.A.54/1994 is a society registered under Societies SA 54/94 & 669/95 2 Registration Act. Case of appellant is that the society was formed with the main object to maintain Hindu culture, to propagate Hindu ideals and religious teachings and to manage Mahaganapathi temple and also to take over the burial and cremation ground used by Hindus exclusively and situated in Bathery. According to the appellant, plaint schedule property is the burial ground of Hindus of Sulthan Bathery which was used by the Hindus of the locality for more than 50 years prior to the institution of the suit. It was contended that the site was being used as a burial ground since 1928 and all castes of Hindus used plaint schedule property as their burial ground and burial ground has been registered in the revenue records including the resettlement of 1928. It was also contended that similarly other religions including Christians and Muslims have separate burial grounds near to the plaint schedule property and subsequent to the formation of the appellant society in 1972, Samithi has been in exclusive possession of the property and has been facilitating burial of the dead bodies of Hindus and granting of financial assistance. It was contended that while so, attempt was made to assign the property by the Government and it created SA 54/94 & 669/95 3 tension among the communities and panchayat passed a resolution that the ancient burial ground of Hindus shall not be assigned and appellant society preferred a complaint before District Collector, Kozhikode, under whose jurisdiction the property was at that time. Administrative Officer unauthorisedly granted assignment of portions of the property. On 21/9/1981 first member of the Board of Revenue visited the site. He did not make any enquiry with the office bearers of the Samithi. The assignment proceedings were stayed by the District Collector. But the Board of Revenue had given direction to the District Collector, Wayanad to implement earlier orders of the Board of Revenue. Appellant was unaware of the earlier orders of the Board of Revenue. It was contended that plaint schedule property a burial ground being used by the Hindu Community of the locality for more than 50 years and first respondent has no right to assign the property to anybody or to take possession of the property from the appellant. Contending that appellant is entitled to a decree for declaration that plaint schedule property is the burial ground of Hindus from time immemorial and is used by the Hindus of the locality and appellant is in the possession and SA 54/94 & 669/95 4 management of the property, suit was instituted. The reliefs sought for were declaration that plaint schedule property is the burial ground of Hindus of the locality uninterruptedly from time immemorial and that appellant Samithi is in actual possession and management of the property. A decree for permanent prohibitory injunction restraining defendants and their men from forcibly evicting appellant and from assigning or transferring the property to strangers was also sought. First respondent filed a written statement contending that suit is barred by principles of res judicata as the same question was settled by the High Court in O.P.10114/1982 under Ext.B14 judgment and also in Ext.B15 judgment in W.A.350/1985. It was contended that the right and title set up in the plaint is the same which was agitated in the writ petition and the writ appeal and it was found that appellant has no right to the property and therefore suit is not maintainable. It was also contended that appellant has no right, title or possession to the plaint schedule property and the entire plaint schedule property is not used as burial ground. It was further contended that appellant caused cremation of some dead bodies with the motive of encroaching into the property and it SA 54/94 & 669/95 5 was never used as a burial ground for the last 50 years. As writ petition was dismissed rejecting his case, the suit is not maintainable. It was also contended that plaint schedule property is not a burial ground and extent of 13.52 acres of Government land in R.S.No.478, 517, 477, 46/1A2, 46/1A3 and 476/1 of Sulthan Bathery village was included in Wayanad colonisation scheme and during new survey, a portion was found to have been used as burial ground and later Government decided to allot remaining waste land to Ex-Servicemen and portions which are used as burial ground was reserved and eight persons were allotted land from the waste land and it was objected to by the appellant and District Collector directed the Administrative Officer to cancel the allotment. Deceased second defendant filed an appeal before the District Collector which was dismissed. A revision was filed before the Board of Revenue. Board of Revenue under Ext.B17 order, set aside the order of the District Collector and restored the original order of the Administrative officer. Appellant challenged the order in a writ petition. That was dismissed under Ext.B14 judgment. It was challenged in a writ appeal. It was dismissed confirming in Ext.B14 judgment by Ext.B15 SA 54/94 & 669/95 6 judgment. 2. Defendants 2 and 3 were subsequently impleaded. They filed written statements contending that plaint schedule property is not a burial ground and it was not being used as a burial ground and appellant Samithi is not in possession of the property and the property was distributed by the Government to ExServicemen. Land having an extent of 2 acres was allotted to deceased second defendant as per order dated 18/8/1978. Second respondent third defendant the widow of Kunjan Nair, Ex-Serviceman was allotted 1 acre and 06 cents by order dated 31/7/1978. Patta was also issued to second respondent. Possession of the property was taken by the second defendant and second respondent. They effected improvements also. Meanwhile allotment was cancelled by the Administrative Officer. Though appeals were filed before the District Collector, they were dismissed, it was challenged before the Board of Revenue. Board of Revenue set aside the order canceling the allotments and the original allotments were restored under Exts.B12 and B17 orders. On enquiry it was found by the Board of Revenue that there is no burial ground in those properties. It was contended that appellant is not SA 54/94 & 669/95 7 entitled to the decree sought for. 3. Learned Munsiff on the evidence of Pws.1 to 4, DW1, Exts.A1 to A31, B1 to B19 and C1 to C8 found that plea of the appellant that plaint schedule property is the burial ground of Hindu Community which was being used from time immemorial, is barred by principles of res judicata in view of Exts.B14 and B15 judgments. Learned Munsiff also found that there is no evidence to prove that plaint schedule property was being used as burial ground from time immemorial. It was also found that appellant is not entitled to declaration sought for. But finding that appellant has been in possession of the plaint schedule property and respondents are not entitled to take forcible possession other than by due process of law, it was found that appellant is entitled to a decree for permanent prohibitory injunction restraining respondents from forcibly evicting the appellant. Challenging the denial of declaration, plaintiff filed A.S.73/1991. Challenging the decree for injunction granted against them, third defendant and legal heirs of the second defendant filed A.S.59/1991. Learned Sub Judge re-appreciated the evidence. On such reappreciation, it was found that there is no evidence to SA 54/94 & 669/95 8 prove that plaint schedule property was being used as a burial ground from time immemorial as claimed by the appellant. Finding that burden is on the appellant to establish the customary right and noting that in spite of the contention raised in the plaint that even 1928 resettlement register shows the property as a burial ground and no such records were produced and holding that evidence of Pws.2 and 3 who are not Hindus and their evidence cannot be relied to establish the customary practice of burial of dead bodies of Hindu community from time immemorial and evidence of PW4, who deposed that the body of his son was buried in the plaint schedule property in 1966 cannot be believed as PW4 is residing 8 km away from the plaint schedule property, learned Sub Judge upheld the finding of the learned Munsiff that appellant failed to establish the customary right of using the plaint schedule property as a burial ground by the Hindu community. It was found that appellant is not entitled to the declaration sought for. But upholding the finding of the trial court that appellant established possession of the property and respondents are not entitled to dispossess the appellant other than by due process of law, it was held that appellant is SA 54/94 & 669/95 9 entitled to a decree for declaration of his possession and also the permanent prohibitory injunction granted by the trial court. A.S.59/1991 was dismissed A.S.73/1991 was partly allowed. Challenging the refusal to grant the decree for declaration that plaint schedule property is being used as burial ground of the Hindu Community, plaintiff filed S.A.54/1994. Contending that after finding that appellant has no title to the plaint schedule property and the title vested with defendants 2 and 3, courts below should not have granted a decree for declaration of possession or permanent prohibitory injunction against the true owners, second respondent and legal heirs of second defendant filed S.A.669/1995. Said appellants also filed cross objection in S.A.54/1994 challenging the granting of a decree for declaration of possession. 4. S.A.54/1994 was admitted formulating following substantial questions of law. 1) When the question whether plaint schedule property is a burial ground of the Hindu community was not an issue raised or decided in the writ petition as well as writ appeal and when only assignment of the portions of the SA 54/94 & 669/95 10 plaint schedule property in favour of defendants 2 and 3 was the subject matter of challenge in the said writ petition and writ appeal whether findings of the courts below that suit is barred by res judicata in view of Exts.B14 and B15 judgments in the writ petition and writ appeal is sustainable. 2) Whether on the evidence, courts below were justified in holding that the appellant is not entitled to declaration sought for when the evidence show that Hindu residents of the locality have been using plaint schedule property as a burial ground and they acquired a customary easement right. 3) In the light of entry in Ext.A27 showing that plaint schedule property is a burial ground, whether the courts below were justified in holding that plaint schedule property is not a burial ground. 4) Whether first appellate court was justified in not receiving additional document produced along with a petition filed under Rule 27 Order XLI of Code of Civil Procedure. S.A.669/1995 was admitted formulating the following substantial questions of law. SA 54/94 & 669/95 11 When it is found that plaintiff’s claim on the basis of which suit was filed and relief sought for is not correct and plaint schedule property was not being used as a burial ground from time immemorial and plaintiff Samithi has no title to the property and defendants 2 and 3 have title to the property, whether courts below were justified in granting declaration that plaintiff is in possession of the suit property and granting a decree for permanent prohibitory injunction. 5. Learned counsel appearing for appellant and respondents were heard. 6. Fact that plaint schedule property having an extent of 13.51 acres was originally Government land is not disputed. What was contended by the appellant in S.A.54/1994 is that plaint schedule property is being used as a burial ground from time immemorial by all castes of Hindu Community of the locality and after formation of the Samithi in 1972 under Ext.A1 bye-laws, Samithi has been in possession of the property and first respondent State has no right to assign any portion of the property and under the orders of assignment obtained by defendants 2 and 3 they cannot claim any right or SA 54/94 & 669/95 12 title to the plaint schedule property. Appellant sought a decree for declaration that plaint schedule property is used as burial ground of Hindu community from time immemorial and on behalf of community appellant Samithi is in possession of the property and respondents have no right to dispossess the appellant. Though appellant also sought a decree for injunction restraining first respondent from assigning or transferring any portion of the plaint schedule property, it was not granted by the courts below. After finding that appellant did not establish that plaint schedule property is being used as burial ground from time immemorial and hence is not entitled to decree for declaration, a decree for injunction was granted restraining respondents from dispossessing appellant other than by due process of law holding that appellant has proved that appellant is in possession of the plaint schedule property. First appellate court on re-appreciation of evidence confirmed the findings of the trail court that appellant did not establish the customary right set up in the plaint and therefore is not entitled to a declaration of that right. But confirming the finding of the trial court that appellant is in possession of the property a decree for SA 54/94 & 669/95 13 injunction was granted. Argument of learned counsel appearing for appellant plaintiff is that finding of the trial court on title is solely based on a finding on plea of res judicata and first appellate court found that said finding is not in accordance with the evidence. It was argued that Ext.A27 shows that 3.18 acres of land in R.S.No.479 is the burial ground and that fact establishes the case of the appellant that plaint schedule property is a burial ground and it is being used for burial of dead bodies of Hindu community from time immemorial. It was also argued that evidence of Pws.1 to 4 and Exts.C1 to C8 reports and plans establish the case of the appellant and the appreciation of evidence by the first appellate court was not correct. It was also argued that even though in Ext.C1 report existence of the gate to the burial ground was shown, the trail court by mistake stated that the existence of the gate was reported only during the second visit and Exts.C1 to C8 establish that even when the Commissioner inspected the property dead bodies were found being buried and in such circumstances courts below should have granted declaration that plaint schedule property is being used as burial ground of the dead bodies of the SA 54/94 & 669/95 14 Hindu community from time immemorial. It was argued that in any case, evidence establish that much before the institution of the suit plaint schedule property was enclosed by a fence and has been in the exclusive possession of the appellant Samithi and even if portions of that property was assigned in favour of defendants 2 and 3, they did not get possession of the property and they are not entitled to dispossess the appellant other than by due process of law and therefore the decree for injunction granted is sustainable. Learned counsel also argued that subsequent to the filing of the appeal, third defendant filed a suit for recovery of possession of the property assigned to her and said suit is pending and in such circumstances the decree for injunction does not warrant any interference. 7. Learned counsel appearing for respondents (legal heirs of defendants 2 and 3) argued that having found that the appellant has no title to the property and having negatived the case that plaint schedule property is being used as a burial ground from time immemorial and upholding the title obtained by defendants 2 and 3, courts below should not have granted a decree for injunction against the true owners, in favour of the SA 54/94 & 669/95 15 appellant who is found to be trespasser and who has no right in the property. Relying on the decisions of the Apex court it was argued that appellant who is found to be trespasser is not entitled to get decree for injunction against defendants 2 and 3 who are the real owners of the property or the first defendant State and the decree for injunction granted is not sustainable. Learned counsel argued that both the trial court and first appellate court, apart from the question of res judicata considered the question of title claimed by appellant, on the evidence and records and rendered a factual finding based on appreciation of evidence and that finding cannot be interfered in exercise of powers of this court under Section 100 of Code of Civil Procedure. It was further argued that first appellate court after detailed examination of each and every item of evidence found that customary practice pleaded and sought to be proved were not established and defendants 2 and 3 validly obtained title to portions of the plaint schedule property and in such circumstances, defendants 2 and 3 are not be directed to seek a decree for recovery of possession and the decree for injunction granted by the trial court and decree for declaration of possession SA 54/94 & 669/95 16 and injunction granted by the first appellate court are not sustainable. 8. Facts are not in dispute. On 31/7/1978 1.06 acres of land in R.S.No.632/2 was assigned in favour of third defendant as provided under Ext.B1 Government order dated 21/12/1945. Said order was promulgated for land reclamation and colonisation of Wayanad colonisation area in Wayanad Taluk as provided under the scheme. Principles of colonisation as provided under Rule 6 are that either 15 acres of dry land or 2 acres of wet and 5 acres of plantable dry land should be given to each colonist and reclamation may be done by the soldiers after armistice and before demobilisation. The property is to be assigned to the different categories of colonists namely, 62% for Ex-servicemen including Madras Guards, 25% to existing owners and sivaijamadars and 12½% to other civilians of Malabar. Similarly as per order dated 18/8/1978 second defendant was assigned 2 acres in survey No.632/2 and pattas were also issued in favour of defendants 2 and 3. While so, appellant preferred objection before the District Collector contending that the entire property in R.S.632/2 is being used as burial ground of Hindu community and therefore cannot be SA 54/94 & 669/95 17 assigned District Collector originally granted an order of stay and communicated the order to the Administrative Officer to send a formal proposal for assignment of the land in R.S.632/2 to the temple authorities under Rule 24 of Kerala Land Assignment Rule. Administrative officer thereafter as per order dated 8/3/1979 cancelled the order granted in favour of third defendant. Similarly as per a similar order the assignment order in favour of second defendant was also cancelled. Defendants 2 and 3 challenged that orders before the District Collector by filing an appeal. When the appeal was dismissed said orders were challenged before the Board of Revenue. Under Ext.B12 and B17 orders, the Board of Revenue found that District Collector has no authority to direct the Administrative officer to cancel the assignment or direct to forward a proposal for assignment of the land under Rule 24 of Kerala Land Assignment Rules and only the Government has a right to do so. Board of Revenue set aside the order of the Administrative Officer canceling the original assignment granted in favour of defendants 2 and 3 and restored the original orders of the assignment. Board of Revenue in the respective orders found that the total extent of the SA 54/94 & 669/95 18 property in R.S.632 is 13 and odd acres and excluding the property assigned in favour of defendants 2 and 3, the balance could be dealt with by the District Collector. Exts.B12 and B17 orders were challenged before this court in O.P.10114/1982. Under Ext.B14 judgment, this court dismissed the writ petition. It was challenged before Division Bench in writ appeal 350/1985. Under Ext.B15 judgment, appeal was dismissed confirming Ext.B14 judgment. Appellant instituted the suit thereafter claiming that plaint schedule property is the burial ground of the Hindu community, which is being used from time immemorial. Though courts below found that Exts.B14 and B15 judgments would operate as res judicata, it is seen from the records that copies of writ petition or writ appeal were not produced before the courts below. From Exts.B14 and B15 it is not possible to hold that question which is sought to be decided in the suit was raised in writ petition or writ appeal so as to invoke the principles of bar of res judicata as found by the courts below. It is now settled that in order to raise a plea of bar of res judicata pleading in the earlier proceedings are to be produced. When the pleadings are not produced, neither the writ petition SA 54/94 & 669/95 19 nor the counter affidavit, courts below should not have upheld the plea of bar of res judicata. More over, question considered under Exts.B14 and B15 judgments was the legality of the cancellation of the original assignment order passed in favour of the defendants 2 and 3 by subsequent order and that too by the directions of the District Collector. Question whether plaint schedule property is being used as burial ground by the Hindu community from time immemorial and whether Hindu community has a right over the plaint schedule property were not seen considered under Ext.B14 and B15 judgments. In such circumstances, finding of courts below that suit is barred by res judicata in view of Exts.B14 and B15 judgments is not correct. 9. But the courts below did not render that finding on the question of res judicata alone. Trial court had gone into the question of customary right pleaded by the appellant though not extensively. On the other hand, first appellate court elaborately considered the evidence in the proper perspective. Finding of fact arrived at by the first appellate court was that appellant did not establish the customary right pleaded. That factual finding of the first appellate court cannot SA 54/94 & 669/95 20 be interfered in exercise of powers of this court under Section 100 of Code of Civil Procedure. As finding of fact by the first appellate court is final interference is warranted only if appreciation of evidence was perverse or finding was rendered omitting to take note of material facts on record or considered extraneous evidence not on record. Judgment of the first appellate court establish that evidence was properly appreciated. As rightly found by the first appellate court the burden is fully on the appellant to prove the customary right set up by the appellant. It is for the appellant to prove that custom which was pleaded as reasonable, certain and user was not permissive and user was not exercised stealthily and was not exercised by force and right had been enjoyed for such length of time so as to suggest that by agreement or otherwise the user has become the custom of the locality. Though Pws.2 and 3 were examined, first appellate court found that they belong to Muslim and Christian religion and cannot give evidence with regard to burial of dead bodies of Hindu community from time immemorial. For valid reasons their evidence was not accepted. Though PW4 was examined his evidence was disbelieved for the reason that it is not SA 54/94 & 669/95 21 probable that dead body of his son would be taken to a distance of more than 8 km from his property, to the plaint schedule property to be buried therein. First appellate court also found that when the custom was to bury dead body in their own property and there were sufficient property to the members of the Hindu community, practice of a common burial ground and that too in Government land is not probable. It was also found that in spite of specific contention in the plaint that resettlement register shows even in 1928 that plaint schedule property is a burial ground, no such document was produced. Though Ext.A27 was relied on, it only shows that 3.18 acres of land in R.S.479 is registered as burial ground. Therefore, first appellate court on proper appreciation of evidence found that no customary right as claimed by the appellant was established. That finding of fact cannot be interfered even on reappreciation of evidence as sought for by the learned counsel appearing for appellant. Therefore, finding of courts below that appellant did not establish that plaint schedule property is being used as a burial ground of Hindu community from time immemorial is correct. Therefore, appellant is not entitled to the decree for SA 54/94 & 669/95 22 declaration to that effect. 10. Then the question is whether appellant is entitled to a decree for permanent prohibitory injunction or declaration of possession granted by the first appellate court. Argument of the learned counsel appearing for respondents relying on the decisions of the Apex courts in **Sopan Sikhdeo Sable and others v. Assistant Charity Commissioner and others (2004 (3) SCC 137), Mahadeo Savlaram Shelke and others v. Pune Municipal Corporation and another (1995 (3) SCC 33) and Shiv Kumar Chadha v. Municipal Corporation of Delhi and others (1993 (3) SCC 161)** is that as against a true owner a trespasser who has no right over the property, is not entitled to a decree for injunction and courts below were not justified in granting the decree based on the principle that even as against the true owner, a person in possession is entitled to a decree for injunction from forcible eviction. Learned counsel argued that Exts.B12 and B17 orders establish that subsequent to the filing of the objection before the District Collector and the cancellation of the order assignment order granted in favour of defendants 2 and 3, by force a fence was SA 54/94 & 669/95 23 constructed surrounding the plaint schedule property and based on that it cannot be said that appellant is in settled possession of the property. It was argued that finding of first appellate court is that appellant obtained possession of the property after 1972 and that too as a trespasser and a trespasser is not entitled to a discretionary relief of injunction against the true owner and therefore decree for injunction as well as declaration of possession granted is not sustainable. Learned counsel appearing for appellant relying on the decisions of Apex court in **Puran Singh and others v. The** **State of Punjab (1975 (4) SCC 518) and Rame Gowda v. Vardappa Naidu and another (2004(1) SCC 769)** and argued that the evidence establish that appellant has been in settled possession of the property and courts below rightly granted a decree for injunction and third defendant has filed suit for recovery of possession and in such circumstances, decree for injunction cannot be interfered. 11. It is settled law that a person in peaceful possession is entitled to retain his possession and in order to protect such possession he is even entitled to SA 54/94 & 669/95 24 use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed is entitled to retain the possession, if he can do so peacefully and without use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner 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 a decree for injunction even as against a rightful owner from using force or taking law in his own hands and also by restoring his possession even from the rightful owner 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. 12. Apex court in **Nair Service Society Ltd. v.** **K.C.Alexander (AIR 1968 SC 1165)** 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 SA 54/94 & 669/95 25 rightful owner. In **Chockalingam v. Manickavasagam (1974** **(1) SCC 48)** Apex court declared that the law forbids forcible dispossession even with the best of title. In **Krishna Ram Mahale v. Shobha Venkar Rao (1989 (4) SCC** **131)** it was held that where a person is in settled possession of the 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 v. Jagar Singh** **(1995 (3) SCC 426)** it was 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 and when the defendant fails in proving his title to the suit land, the plaintiff can succeed to secure a decree for possession on the basis of his prior possession against the defendant who has dispossessed him as such suit will be founded on the previous possession and subsequent dispossession. In **Munshi Ram v. Delhi Administration (AIR 1968 SC 702)** it was held that no one including the true owner has a right to dispossess the trespasser by force if the SA 54/94 & 669/95 26 trespasser is in settled possession of the land. In such a case unless he is evicted in due process of law, he is entitled to defend his possession even against the rightful owner. 13. But settled possession is different from stray or intermittent acts of trespass. The possession which a trespasser is entitled to defend against the rightful owner must be the settled possession extending over a sufficiently long period of time and acquiesced to be by the true owner. Apex court in **Puran Singh v. State of Punjab (1975 (4) SCC 518)** had occasion to consider the ambit and scope of settled possession as explained in Munshi Ram’s case (supra). The nature of possession which could be taken as settled possession was held in the following situations. “1) Trespasser must be in actual physical possession of the property over a sufficiently long period. 2) Possession must be to the knowledge, either express or implied of the owner or without any attempt at SA 54/94 & 669/95 27 concealment by the trespasser, which contains an element of animus possidendi. Nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case. 3) Process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner. 4) 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 which case the trespasser will have a right to private defence and true owner will SA 54/94 & 669/95 28 have no right of private defence.” ## In **Shiv Kumar Chadha v. Municipal Corporation of Delhi** **(1993 (3) SCC 161)** the Apex court while considering the powers of the court to grant temporary injunction under Order XXXIX of the Code of Civil Procedure held that court would always be willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court. In **Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others (2004(3) SCC 137** ) Apex court had observed in Shiv Kumar Chadha’s case (supra) that judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the court. Considering the question of right of a person in settled possession to protect the property it was held **==> picture [258 x 10] intentionally omitted <==** principles which have to be borne in mind regarding course to be adopted in SA 54/94 & 669/95 29 case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That section says “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.” That person without title but in settled possession, as against mere fugitive possession, can get back possession if he was forcibly dispossessed or rather, if dispossessed otherwise than SA 54/94 & 669/95 30 by due process of law, as has been laid down in several cases. It was so held by Apex court Lallu Yeshwant Singh v. Rao Jagdish Singh (AIR 1968 SC 620), Krishna Ram Mahale v. Shobha Venkar Rao (1989 (4) SCC 131), Ram Rattan v. State of U.P. ((1977 (1) SCC 188) and State of U.P. V. Maharaja Dharmander Prasad Singh (1989 (2) SCC 505). The leading decision quoted in these rulings is the decision of the Bombay High Court in K.K.Verma v. Union of India (AIR 1954 Bombay 358). 14. Following the earlier decision in **Mahadeo** ## **Savlaram Shelke v. Pune Municipal Corporation (1995** **(3) SCC 33)** it was held that it is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. In the decision in **Rame Gowda v. Varadappa Naidu and another** **(2004(1) SCC 769)** after analysing all the earlier decisions it was held held that “The concept of settled possession and the right of the possessor to protect his possession against the owner has come to SA 54/94 & 669/95 31 be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram v. Delhi Admn (AIR 1968 SC 702), Puran Singh v. State of Punjab (1975 (4) SCC 518) and Ram Rattan v. State of U.P (A977 (1) SCC 188). The authorities need not be multiplied. In Munshi Ram’s case 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 SA 54/94 & 669/95 32 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 case 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 it it; nor is it a ritualistic formula which can be confined in a straitjacket. 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 land down the following tests which may be adopted as a working rule for determining the attributes of “settled possession” (SCC p.527, para 12). (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 SA 54/94 & 669/95 33 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.” Distinction was drawn between 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 reacquiring SA 54/94 & 669/95 34 possession over his property. The principles laid down in Puran Singh’s case (supra) was reiterated in Rame Gowda’s case (supra). Thus the settled position is that if plaintiff is in settled possession of the plaint schedule property, he is entitled to a decree for permanent prohibitory injunction from forcibly taking possession of the property even by the true owner. But in order to prove that the plaintiff is in settled possession of the property, he must establish that he is in actual physical possession of the property over a sufficiently long period. Added to this, possession must be to the knowledge (either expressly or impliedly) of the owner or without any attempt at the concealment by the trespasser and must be with element of animus possidendi. In addition, 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. Therefore, unless the plaintiff established that he has been in actual physical possession of the property for a sufficiently long period and that possession was to the knowledge of the rightful owner and without any attempt of concealment and with the element of animus possidendi and also that the process of dispossession was complete SA 54/94 & 669/95 35 and was acquiesced by the true owner; he is not entitled to the decree. 15. Argument of learned counsel is that Exts.C1 to C8 report establish that plaint schedule property is enclosed within a fence with a gate for entrance even before the institution of the suit and evidence establish that plaintiff has been in possession of the property at least from 1972 and therefore, actual physical possession of the property for sufficiently long period to the knowledge of the Government was proved and even if Exts.B2 and B3 orders of assignment granted in favour of defendants 2 and 3 are to be accepted as final, and defendants 2 and 3 have title to the property, they are entitled to take possession only by recourse to law and plaintiff is entitled to the decree for injunction granted. It was also argued that third defendant by instituting a suit for recovery of possession has admitted settled possession of the appellant. Learned counsel appearing for respondents argued that Ext.B2 file establish that 1 acre 6 cents covered under Ext.B2 was assigned to third defendant being the widow of an Ex-service man and that property was taken possession by the third defendant and property so assigned is SA 54/94 & 669/95 36 demarcated in the plan appended to Ext.B2 file and when the property was assigned to defendants 2 and 3, appellant approached the District Collector, who originally stayed the proceedings and thereafter directed the Administrative Officer to forward a proposal to assign the property to the appellant and Administrative Officer cancelled the original allotment which was ultimately set aside by the Board of Revenue under Exts.B12 and B17 orders and those orders were upheld by this court under Exts.B14 and B15 judgments and Ext.B12 and B17 orders of the Board of Revenue establish that fencing on the boundary of the plaint schedule property was made during that period and therefore the possession claimed by the appellant cannot be an actual physical possession over a sufficiently long period and in any event neither second defendant nor third defendant have acquiesced to the trespass and therefore appellant cannot claim that they are in settled possession of the property covered under Exts.B2 and B3 and appellant is not entitled to the decree for injunction as against the legal heirs of true owners, defendants 2 and 3 in respect of the properties covered under Exts.B2 and B3. 16. As stated earlier Ext.A27 only shows that in SA 54/94 & 669/95 37 the settlement register an extent of 3.18 acres in R.S.No.479 was shown a burial ground. The entire balance extent of the plaint schedule property is shown as the Government land. Exts.B2 and B3 establish that exercising the powers provided under Ext.B1, waste land excluding the burial ground was assigned to the Ex-service men by the Government. It was challenged by the appellant by filing an objection before the District Collector which culminated in cancellation of the assignment orders which were subsequently restored by the Board of Revenue under Exts.B12 and B17 orders. Therefore, possession claimed by the appellant cannot be said to be a settlement possession, in respect of the property covered under Ext.B2. It is proved that the property covered under Ext.B2 is not a portion of the burial ground. Therefore, possession claimed by the appellant Samithi is not proved to be a settled possession in respect of the property covered under Ext.B2. Therefore, when it is proved that third defendant has got title to 1.06 acres of land covered under Ext.B2, even if the appellant is in possession of the property being a trespasser who is not in settled possession is not entitled to a decree for injunction against the true owner. Decree for injunction SA 54/94 & 669/95 38 granted in respect of the property covered under Ext.B2 is not sustainable. 17. With regard to the property covered under Exts.B16, which was allotted to second defendant position is different. Ext.B16 order shows that second defendant was allotted 8.200 hecters of dry land namely, 2 acres in survey No.632/2 and he was directed to contact Special Revenue Inspector, Sulthan Bathery, making it clear that if he failed to take charge of the property within 15 days, allotment will be canceled. Ext.B16 does not show the identity of the property expcept that it is 2 acres in survey No.632/2. Though there is a plan appended to Ext.B2 file showing as 1.6 cents allotted to third defendant, there is no such plan showing the identity of the property covered under the allotment made to second defendant. There is no other evidence to prove that the property was obtained by second defendant. Hence it cannot be said that second defendant obtained possession of the property covered under Ext.B16. If that be so, it cannot be said that appellant is not in settled possession of the property covered under Ext.B16. 18. With regard to the remaining extent of the plaint schedule property evidence establish that SA 54/94 & 669/95 39 appellant is in settled possession of the property. More over, first defendant did not challenge the decree granted by the trial court, even when defendants 2 and 3 challenged only the decree in respect of the property covered under Exts.B2 and B16. In such circumstances, the decree granted by the trial court as confirmed by the appellate court with regard to the remaining portion of plaint schedule property is to be maintained. S.A.669/1995 is allowed in part. S.A.54/1994 is dismissed. Decree granted in O.S.261/1985 as modified in A.S.73/1991 is confirmed, subject to the following modification. Declaration of possession and injunction is confined to the plaint schedule property, excluding 1 acre 6 cents covered under Exts.B2 and B3. In all other aspects decree is confirmed. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 54/94 & 669/95 40 ============================= M.SASIDHARAN NAMBIAR,J. ## **JUDGMENT** S.A.NO.54/94 & 669/95 6[th] February 2008 ============================