SC: True owner can use necessary force to obstruct/remove stray trespass

The Hon’ble Supreme Court on 29thJanuary 2019, in the matter of Poona Ram v. Moti Ram (D) Thr. Lrs. & Ors. pronounced that stray/intermittent acts of trespass don’t give possessory title over property. 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.

The Hon’ble Supreme Court observed that:

Section 64 of the Limitation Act, 1963 contemplates a suit for possession of immovable property based on previous possession and not on title, if brought within 12 years from the date of dispossession. Such a suit is known in law as a suit based on possessory title as distinguishable from proprietary title. It cannot be disputed and is by now well settled that ‘settled possession’ or effective possession of a person without title entitles him to protect his possession as if he were a true owner. (Para 8)

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. (Para 13)

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. (Para 13)

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. (Para 13)

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. (Para 15)

The plaintiff has to prove his case to the satisfaction of the Court. He cannot succeed on the weakness of the case of the defendant. (Para 17)

Generally, it is not open to the High Court to interfere with the findings of fact recorded by the First Appellate Court when such findings are based on the evidence on record, and are not perverse or against the material on record. (Para 18)

Copy of judgement: Judgement_29-Jan-2019

-Tushar Kaushik 

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