REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7135-7136 OF 2000
Subramaniaswamy Temple, Ratnagiri ... Appellant
Versus
V. Kanna Gounder (Dead) by LRs. ... Respondent
JUDGMENT
S.B. Sinha, J.
1. This appeal is directed against a judgment and order dated
26.3.1999 passed by the High Court of Judicature at Madras in Second
Appeal Nos.752/87 and 800/94 whereby and whereunder the appeals
preferred by the respondent herein from a judgment and order dated
13.04.1994, passed by the First Appellate Court in AS 16 of 1983, were
allowed.
2. The basic fact of the matter is not in dispute. Appellant is a
temple. It is of ancient origin. It was in possession of a vast tract of
land. It runs a school as also a charitable hospital. It adopted the
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practice of feeding the poor people. It has also been performing various
other activities in relation to the temple. The temple was in possession of
a vast tract of land and in particular land in survey No.370/1 admeasuring
32 acres. Survey number 370 was classified into three different
categories, namely, (1) Survey No. 370/1 (32 acres) classified as “Sri
Subramanya Swamy Temple Poramboke”; (2) Survey No.370/2 (1 acre
44 centrs) as “High Ways Road”; and (3) Survey No.370/3 (68 cents) as
“unassessed waste”.
3. The classification of 32 acres of land of Survey No.370/1 was
made as “Sri Subramanya Swamy Temple Poramboke”. The said
classification of temple `Poramboke’ in the revenue record of right
indicates the reason for which it has been set apart as also its occupation
and use. Temple Poramboke consists of unassessed waste land by the
temple. It may also include common passage, water ponds, thrashing
floor etc. etc.
4. For the purpose of effectuating the aforementioned purpose, the
Government of Madras issued GO No.3333 on or about 25.8.1960
permitting the temple to lease out the said lands for the purpose of
augmenting its revenues subject of course to the conditions laid down
therein, which are :
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“1. The temple authorities before applying
for assignment of the porambokes found
in excess of the requirements of the
temple and worship should obtain the
consent of the H.R. & C.E. ADMN
DEPARTMENT.
2. Such lands should be granted for
cultivation only if they are cultivable and
only if they are not cultivable they should
be to other uses for the benefit of the
temple and
3. The land should be used only for the
purposes for which it is assigned.”
5. By reason of such classification, the appellant-temple obtained full
right to possession and exercise right to transfer of the lands assigned in
its favour. The right of the appellant to hold and possess the said land
was noticed by a Bench of the Madras High Court in 2001 (2) Law
Weekly 723 in the following terms :
“Such a land does not cease to be a poramboke
property over which the Government will have
control subject only to the rights of the temple.”
6. Respondent herein was a licensee in respect of a shop situated in
Suvey No.370/1. A suit for an eviction was initiated. A decree was
passed. Respondent was evicted from the said shop. However, he is said
to have encroached upon 300 sq. ft. of land in the said survey later on.
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The defence taken by the respondent was that the land occupied by him
pertains to Survey No.144 and not to Survey No.370/1. A suit was
instituted for his eviction. In the said suit, the possessory title of the
temple was affirmed but it was dismissed on the ground that respondent
had already taken possession and, therefore, the remedy of the appellant
would only be to file a suit for recovery thereof.
7. An appeal suit was preferred. At the same time, pursuant to the
observations made by the District Court in its judgment dated
20.11.1985, a suit was instituted. The suit was decreed. An appeal
preferred thereagainst was also dismissed. Respondent filed a second
appeal which was marked as Second Appeal No.800 of 1994 which was
tagged with the second appeal preferred by the appellant being Second
Appeal No.752 of 1997. Both the appeals were taken up for hearing
together. By reason of the impugned judgment whereas the Second
Appeal filed by the appellant was dismissed, that of the respondent was
allowed holding that appellant had failed to prove any title over the said
land by way of patta or otherwise as also the fact that possession had
been delivered in its favour by the State.
8. Mr. S. Balakrishnan, learned senior counsel appearing on behalf of
the appellant, would submit that the High Court committed a serious
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error in passing the impugned judgment in so far as it failed to take into
consideration the concept of possessory title.
9. Mr. Ramakrishna Reddy, learned counsel appearing on behalf of
the respondent, however, supported the impugned judgment.
10. The High Court, in its impugned judgment proceeded on the basis
that there had been no assignment in favour of the temple by the State. It
committed an error in relation thereto. The paramount title of the State is
not disputed. It remain vested in the State. The State, however, having
regard to the possession of the appellant over 32 acres of land classified
the same as `temple poramboke’. It, by reason of the said classification,
not only permitted the appellant to continue to possess the land but also
granted a superior right, namely, to make constructions as also to grant
lease thereof subject of course to the conditions laid down as noticed
hereinbefore. The principle of possessory title was, thus, completely
overlooked by the High Court.
11. It is now well settled that in India, nobody can take possession of
an immoveable property except in accordance with law. Respondent was
a licensee under the appellant. He was evicted from the shop which was
allotted in his favour. If he had encroached upon a portion of the
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Poramboke land, he could have been evicted by the temple on the basis
of its possessory title.
12. If, thus, the temple was in prior possession of the land which
would be evident from the classification made by the State Government
and recognition of its right thereover, it also had right to initiate
proceedings in a civil court for eviction of a rank trespasser. In a case of
this nature, the court was required to consider as to who was in prior
possession. Only in the event the respondent was in a position to show
that he had a better title, he could continue with the possession. The only
defence taken by him was that the suit land pertains to Survey No.144
and not Survey No.370/1. Such a contention has been negatived by the
trial court as also by the first appellate court. A finding of fact had been
arrived at. Having regard to the concurrent finding of fact as regards the
possession of the parties, vis-`-vis, their respective title in and over the
suit land. The High Court, while exercising its jurisdiction under Section
100 of the Code of Civil Procedure, was required to formulate a
substantial question of law which might have arisen for its consideration.
No question of law was framed far less any substantial question of law
relating to identification of the property. The High Court, therefore, in
our opinion completely misdirected itself in passing the impugned
judgment.
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13. The law operating in this connection having been noticed by this
Court in Rame Gowda (D) by Lrs. v. M. Varadappa Naidu (D) by Lrs.
and Anr. [(2004) 1 SCC 769], we need not enter into a deeper probe.
Therein it was held :
“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 the law in his
own hands, and also by restoring him in
possession even from the rightful owner (of
course subject to the law of limitation), if the
latter has dispossessed the prior 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
8the last of the cases, the possession of the
trespasser, just entered into would not be called
as one acquiesced to by the true owner.
9. 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.”
14. For the reasons aforementioned, the impugned judgment cannot be
sustained. It is set aside accordingly. Appeals are allowed. No costs.
………………………..J.
[S.B. Sinha]
………………………..J.
[Lokeshwar Singh Panta]
New Delhi
May 14, 2008