Settled Possession

Salmond states in Jurisprudence (Twelfth Edition At pp. 265, 266) regarding possession as under:

"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."

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. The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond.

In Midnapur Jamindar company Ltd V/S Kumar Naresh, Narayan Roy and Others, 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 in the chain of decisions of Hon’ble Supreme Court as on today, being Rame Gowda (Dead) by Lrs V/S M.Varadappa Naidu (Dead) by Lrs and another reported in 2004(1)Supreme Court Cases 769. (SAR(Civil) 107 SupremeCourt).(please see also Ramesh Chand Ardawatiya V/S Anil Panjwani (2003) 7 SCC 350). 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 a 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 in his possession. The law will come to the aid of a person in peaceful and 'settled possession' by injunction even against 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. 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 of Hon'ble Supreme Court. In Puran Singh and others v/s State of Punjab (1975) 4 SCC 518, the Hon’ble Supreme 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 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 court laid down the following tests, which may be adopted as a working rule for determining the attributes of settled possession;

i) That (he 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 of implied) of the owner or without any attempt at conceal 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 cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the trespasser had grown the crop then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

In Ram Rattan and others v/s State of Uttar Pradesh case (1977) 1 SCC 187, Hon'ble Supreme Court has 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 right full 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 re-instate 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. H.M.Bharathesh. Rtd. District Judge Bangalore Karnataka State *****