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SETTLED POSSESSION AND UNLAWFUL EVICTION

JUSTICE Venkatachalliah, M.N. In STATE OF U.P. v. DHARMANDER PRASAD SINGH 1989 AIR 997, 1989 SCR (1) 176 while dealing with the rights of the State Government on cancellation of a lease granted by it, the Supreme Court held that the fact that the lessor is the state does not place it in any higher pedestal or better position. The Supreme Court observed thus: "Under law, the possession of a Lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited.... ...... Therefore, there is no question in the present case of the government thinking of appropriating to itself an extrajudicial right of re-entry. Possession can be resumed by Government only in a manner known to or recognised by law. It can resume possession otherwise than in accordance with law. Government is accordingly prohibited from taking possession otherwise than in due course of law."

JUSTICE K Singh, and JUSTICE M Kania, In KRISHNA RAM MAHALE v. SHOBHA VENKAT RAO AIR 1989 SC 2097, while considering the claim of a licence, who has been wrongly dispossessed by the licenser before the expiry of licence period, for restoration of possession, the Supreme Court observed thus: "It is well settled law in this Country that where a person is in settled possession of 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 of law." The Supreme Court held that the dispossessed licence was entitled to restoration of possession in spite of the fact that by then the term of licence has expired.

JUSTICE S.S.Ahmad, JUSTICE D.P.Wadhwa. In STATE OF HARYANA v. MOHINDER PAL 2003(1) WLC (SC) Civil 499 the Supreme Court rejected an appeal filed against a decision of the Punjab and Haryana High Court which had held that the Government cannot take law into its own hand while dispossessing persons in possession of land by putting up khokhas (on the ground that they were unauthorized occupants to Government land) but should have followed the due procedure prescribed by law. The Supreme court held that: ".... Question of examining the title of the parties does not arise at all as admittedly respondents were in possession of the property in question and put up structures thereon. On that admitted position, High Court took the view that ejectment of the respondents forcibly without due recourse of law was not in due process. No exception can be taken to that view at all. In fact, this view is consistent with what has been stated by this Court........"

JUSTICE M Venikatachaliah, and JUSTICE D V Rao, In PATIL EXHIBITORS PVT. LTD. v. BANGALORE CITY CORPORATION AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533 a Division Bench of Karnataka High Court observed thus: "It is part of the concept of "Rule of Law" that no claim to a right to dispossess by the use of force without recourse to procedure in accordance with law is recognized or countenanced by Courts. Such a right in the respondent cannot be recognised regardless of the question whether or not the appellant (Licencee) itself has any subsisting right to remain in possession. The protection that the Court affords is not of the possession which in the circumstances is litigious possession and cannot be equated with lawful possession but a protection against forcible dispossession. The basis of relief is a corollary of the principle that even with the best of title, there can be not forcible dispossession. .... Under our jurisprudence, even an unauthorized occupant can be evicted only in the manner authorized by law. This is the essence of the Rule of law."

Hegde, K.S. SIKRI, S.M. SHELAT, J.M. In MUNSHI RAM v. DELHI ADMINISTRATION 1968 AIR 702, 1968 SCR (2) 408 the Supreme Court succinctly stated the legal possession regarding settled possession thus; "It is true 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 endue course of law, he is entitled to defend his possession even against the rightful owner. But, stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitle to defend against the rightful owner much be a settled possession extending over a sufficiently long period and acquiesced in 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 necessary, such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force."

FAZALALI, SYED MURTAZA, BHAGWATI, P.N., KRISHNAIYER, V.R. Supreme Court in RAM RATTAN v. STATE OF UTTAR PRADESH 1977 AIR 619, 1977 SCR (2) 232 as follows: "..... It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or prices of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the owner should dispossess the trespasser by taking recourse to the remedies available under the law..... it may not be possible to laydown a rule of universal application as to when the possession of a trespasser becomes complete and accomplished"

V. Gopala Gowda, J. D. Narayanappa vs The State Of Karnataka, ILR 2005 KAR 295, Having regard to the principles laid down in the above said decisions, we may conveniently cull out the legal position in regard to a true owner vis-a-vis a trespasser as under.
i) A true owner (even if it is the State or a Statutory body) has no right to forcibly dispossess an unauthorized occupant (including a trespasser) in settled possession, otherwise than in accordance with law.
ii) A trespasser or unauthorized occupant in settled possession can be dispossessed, only in accordance with an order/decree of a competent Court/tribunal/authority or by exercise of any statutory power of dispossession/demolition entrusted to the State or statutory Authority.
iii) A person in unauthorized possession shall be deemed to be in settled possession, if his entry into the property was lawful or authorized.
iv) a person in unauthorized possession, whose entry into the property is illegal or unauthorized, can claim to be unsettled possession, only if he is in open, continuous and actual physical possession over a sufficiently long period, with the knowledge of the true owner.
v) A surreptitious and unauthorized entry into another's land and stealthy trespasser, will not have the effect of dispossessing the true owner of giving possession to the trespasser. Such acts will lead to settled possession only when the true owner having knowledge of it, acquiesces in it.
vi) Where the trespasser is not in settled possession, all acts of the trespasser in regard to the property will be considered as only attempts to secure possession. The true and rightful owner can re-enter and reinstate himself by removing the obstruction or the unauthorized construction put up by the trespasser by using the minimum force. Such action by the true owner will be considered as defending his possession and resisting an intrusion with his property and not forcible dispossession of an unauthorized occupant.
vii) Where however the trespasser is in settled possession and such settled possession adverse to the true owner continues for 12 years, the right of the true owner is extinguished and the trespasser as possessory owner acquires absolute title to the property in question."

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