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 

7 thoughts on “SC: True owner can use necessary force to obstruct/remove stray trespass”

  1. Hmari property par sage mama ne kabja kiya hua hai property meri bhabhi me naam we hai
    Hmne civil suit court me dala hua hai
    Supreme court ke order me kaha gaya hai Ki property par se avaidh kabje ko balpurvak htaya ja sakta hai
    Kya hum apni sampatti se avaidh kabja balpurvak hta sakte hai
    Kripya btaiyen

    1. As per what you said, it seems that the possession of your “mama” is not a stray act and your mama is in settled possession, therefore when you don’t have settled possession, this judgement won’t come to your rescue. So in short, the answer is NO, the only recourse left with you for getting back possession is a suit for recovery of possession.

  2. Dear Sir,
    Four of my neighbours have encroached the portion of the road to my house and added to their land. Some of which are 30 years old. Three of them have permanent houses in the plot. I was in Indian Coast Guard (armed force of India) for last 33 yeras and could not resist them during my leave periods. can I get the encroached area back ?

    1. Hi, Mr. KVA
      You can proceed against them four and against the local body and state, for a mandatory injunction to the effect that the construction be removed and a subsequent relief of permanent injunction for restraining them from interfering in your peaceful usage of the passage. You will need to consult an advocate for helping you out with it. Hope i’ve answered your query. 🙂

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