# NAIR SE~VICE SOCJf:TY L'ID v. REV. FAtllER K. C. ALEXANi>l!;R & ORS

- **Citation:** [1968] 3 S.C.R. 163
- **Court:** Supreme Court of India
- **Decided:** 1968-02-12
- **Case number:** Civil Appeal No. 1632 of 1966
- **Bench:** M. Hidayatullah, s. M. SIKlll ANO K. s. HEGDE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nair-se-vice-socjf-ty-l-id-v-rev-fatller-k-c-alexani-l-r-ors-4274
- **Pages:** 26

## Headnote

Specific Relief Act, 1877 (1 of 1877), ss. 8 aild 9-Suit under s. 8
wheiher must he based on proof of title-Jus-tertli-lndian Evidence Act,
1872 (!of 1872), s. 110 presumption under-The Limitation Act, 1963
(36 of 1963) Arts. 64 and 65-Travancore Limikztion Regulation (VI of
110 M.E. s. 32)-Travancore Specific Relief.Act XJ/l of 1115, ss. 7 and
8-(Trcvancore) Regulation IV of 1091-Effect <Jf incurring penalty
under Regulations on right to bri111: suit for ·recov~ry of pos,ression -of land
-Code of Civil Procedure, 1908 (Act 5 of 1908), 0. VJ, r. 11-Amem/.
ment of pkadings-Effect of /aches.
After a case under the Travancore Land Conservancy Regulation · IV
of 1094 M.E. the plaintiff was evicted from 160 acres of Poramboke land.
Thereafter in August 1938 the appellant Society applied for a Kuthakapattom lease of this area which was granted and the Society entered inti)
possession in July 1939. The suit land was adjacent to the above land. In
the map prepared by the, Court Commissioner the suit land was marked
as L(l) and tho area of 160 acres aforesaid as L(2). In his suit which
was filed in 1942 the plaintiff alleged that after ·entering into possession of
L(2) the Society in October 1939 through its agents forcibly dispossessed
him of L(l) as well. He. asked for restoration of ~session of L(I) and
for related relief.
The Society in its defence contended that the plaint
lands were Government Reserve and that the plaintiff was dispossessed by
Government from these lands when he was dispossessed of L(2). In 1948
the Society was granted Kuthakapa•tom lease in respect of a party of L(I)
as well, .and this portion was marked as L(l)(b), the rest of the suit land
being marked as L(l)(a). 1he Society in its written statement did not
aver that it was not in possession of L(l)(a). Subsequently, it attempted
by argument to limit its defence to L(l)(b) on the !IQis of the 1948 base,
But although the- suit was pending iii the trial cou'rt for 17 years no application for amendmen! of the pleadings to this effect was made. The trial
court decreed the plaintiff's suit for L(l)(a). In the High Court the
Society applied on the last day of the hearing of the aJlpeal, for amendment
of its wntten statement limiting its defence to portion L( I )(b), disclaiming all interest in portion L(l)(a). The High Court rejected the application as belated and decreed the suit against the Society in respect of L(l)
(b) as well. The Society appealed, by certificate to this Court. The main
contention urged on behalf of the Society based on the Travancore law
corresponding to ss. 8 and 9 of the. Indian Specific Relief Act. was that
after the expiry of six months from the date of dispossession a suit folr
possession without proof of title was incompetent. On facts the Society's
plea was that the plaintiff bad been evicted by the Government from the
suit lands at the same time as he was evicted from L(2).
HELD : (i) The High Court accepted the plaintijf's allegations as to
his forcible dispossession from the suit land by the Society. On examination Of the evidence there was no reason to depart from the finding of the
High Court. [171 D-E]
(ii) It cannot be said that the distinction between ss. 8 and 9 of the
Indian Specific Relief Act was based on the distinction that was at one
163
164
SUPREME COURT REPORTS
[19681 3 S.C.R.
time drawn in R_qman Law bet,\\'.~en the two kinds of Interdicts namely,
tie vi cotidlana and de vi crmilta. In the time of Justinian the two Interdicts
de vi ~-ere fused and there was only one action representing both. The
appeal to Roman Law, l"as· therefore of no .assistance. [)74 B-C]
(iii) The contention that while under s. 9 of the Specific Relief Act a
SJ.lit based mereJy on prior possession must be filed within six months, while
a suit unper s. 8 based on proof of title may be filed within 12 years can~
not be sustained. Section 8 of the Act does not limit the kinds of suit but
only lays down that the procedure laid down by the Code of C

## Text

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NAIR SE~VICE SOCJf:TY L'ID.
v.
REV. FAtllER K. C. ALEXANi>l!;R & ORS.
February 12, 1968
[M. HIDAYATULLAH, s. M. SIKlll ANO K. s. HEGDE, JJ.]
Specific Relief Act, 1877 (1 of 1877), ss. 8 aild 9-Suit under s. 8
wheiher must he based on proof of title-Jus-tertli-lndian Evidence Act,
1872 (!of 1872), s. 110 presumption under-The Limitation Act, 1963
(36 of 1963) Arts. 64 and 65-Travancore Limikztion Regulation (VI of
110 M.E. s. 32)-Travancore Specific Relief.Act XJ/l of 1115, ss. 7 and
8-(Trcvancore) Regulation IV of 1091-Effect <Jf incurring penalty
under Regulations on right to bri111: suit for ·recov~ry of pos,ression -of land
-Code of Civil Procedure, 1908 (Act 5 of 1908), 0. VJ, r. 11-Amem/.
ment of pkadings-Effect of /aches.
After a case under the Travancore Land Conservancy Regulation · IV
of 1094 M.E. the plaintiff was evicted from 160 acres of Poramboke land.
Thereafter in August 1938 the appellant Society applied for a Kuthakapattom lease of this area which was granted and the Society entered inti)
possession in July 1939. The suit land was adjacent to the above land. In
the map prepared by the, Court Commissioner the suit land was marked
as L(l) and tho area of 160 acres aforesaid as L(2). In his suit which
was filed in 1942 the plaintiff alleged that after ·entering into possession of
L(2) the Society in October 1939 through its agents forcibly dispossessed
him of L(l) as well. He. asked for restoration of ~session of L(I) and
for related relief.
The Society in its defence contended that the plaint
lands were Government Reserve and that the plaintiff was dispossessed by
Government from these lands when he was dispossessed of L(2). In 1948
the Society was granted Kuthakapa•tom lease in respect of a party of L(I)
as well, .and this portion was marked as L(l)(b), the rest of the suit land
being marked as L(l)(a). 1he Society in its written statement did not
aver that it was not in possession of L(l)(a). Subsequently, it attempted
by argument to limit its defence to L(l)(b) on the !IQis of the 1948 base,
But although the- suit was pending iii the trial cou'rt for 17 years no application for amendmen! of the pleadings to this effect was made. The trial
court decreed the plaintiff's suit for L(l)(a). In the High Court the
Society applied on the last day of the hearing of the aJlpeal, for amendment
of its wntten statement limiting its defence to portion L( I )(b), disclaiming all interest in portion L(l)(a). The High Court rejected the application as belated and decreed the suit against the Society in respect of L(l)
(b) as well. The Society appealed, by certificate to this Court. The main
contention urged on behalf of the Society based on the Travancore law
corresponding to ss. 8 and 9 of the. Indian Specific Relief Act. was that
after the expiry of six months from the date of dispossession a suit folr
possession without proof of title was incompetent. On facts the Society's
plea was that the plaintiff bad been evicted by the Government from the
suit lands at the same time as he was evicted from L(2).
HELD : (i) The High Court accepted the plaintijf's allegations as to
his forcible dispossession from the suit land by the Society. On examination Of the evidence there was no reason to depart from the finding of the
High Court. [171 D-E]
(ii) It cannot be said that the distinction between ss. 8 and 9 of the
Indian Specific Relief Act was based on the distinction that was at one
163
164
SUPREME COURT REPORTS
[19681 3 S.C.R.
time drawn in R_qman Law bet,\\'.~en the two kinds of Interdicts namely,
tie vi cotidlana and de vi crmilta. In the time of Justinian the two Interdicts
de vi ~-ere fused and there was only one action representing both. The
appeal to Roman Law, l"as· therefore of no .assistance. [)74 B-C]
(iii) The contention that while under s. 9 of the Specific Relief Act a
SJ.lit based mereJy on prior possession must be filed within six months, while
a suit unper s. 8 based on proof of title may be filed within 12 years can~
not be sustained. Section 8 of the Act does not limit the kinds of suit but
only lays down that the procedure laid down by the Code of Civil Procedure must be followed. This i_s very different from saying that a suit based
on possession alone is incompetent after the expiry of 6 months. Under ·
s. 9 of the Code of Civil Procedure itself all sui~s of a civil nature are
triable excepting suits of which their cognizance is either expressly or impliedly barred. There is no prohibition expressly barring a suit based on
possession alone. [175 F-GJ
Ram Harakh Rai v. Scheodihal Joti, (1893) 15 All. 384, considered.
Mustapha Sahib v. Santha Pillai. l.L.R. 23 Mad. 179, .and Kutta11
Naraya111an v. Thonunan Mat.hcti, (1966) Kerala Law Times 1, applie.d.
A.'
The uniform view of the courts is that if s. 9 of the Specific Relief
Act is ultilised the plaintiff need not prove title and the title of the defen·
dant does not ayaiJ him. When, ho\vever, the period of 6 n1onths has passed
questions of title can be raised by the defendent and if he doeiil so the plainD
tiff must establish a better title or fail. In other words the right is restricted to possession only in a suit under s. 9 of the Specific Relief Act but
that does not bar a suit on prior possession within 12 years and title need
not be proved unless the defendant can prove one. Articles 64 and
65 of the Indian Limitation Act as recently an1cnded bring out this difference. Article 64 enable, a suit within 12 years fron1
dispossession for
poSSession of immovable property bi:.::;ed on possession and not on ·title,
when the . plaintiff while in possession of the property has been disprissessed.
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Article 65 is for posscs~ion of immovable property or any interest there~
in ba'Sed on title. The amendment is not remedial but declaratory of the
Jaw.
In the present case therefore, the plaintiff's suit was competent.
fl77 A-DJ
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(iv) The Society could not on the· basis of possession claim a presumption of title in. its favour· relying on s. 110 of the Indian Evidence Act.
'fhis presumption can hardly arise when the fac~ arc known. When the
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facts disclose no title, possession alone decides. Jn the present case neither
party had title and therefore s. 110 of the Evidence Act was immaterial.
[177 E-Fl
(v) The plea of jus terlii on behalf of the appellant could not succeed.
The plea is base<! on Doe v. Barnard (1849] Q.B. 945 which was departed
from in Sher v. Whitlock, (1885] 1 Q.B 1 and was overruled in Pe".v v,
C/issold. (1907] A.C. 73. The view taken in Perry v. C/issold that a person
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in possession of land has a perfectly good· title against all the world but
the rightful owner_. has been consistentJy accepted
in
India . and
the
amendment of the Indian Limitation Act has given approval to- that proposition. Accordifigly the :Society was_ not e}1titl"ed to plead in t~e. present
case that the title to the suit land lay 1n the State. Such a plea 1f allowed
will always place the defendant in a position of dominance. He :has only
to evict the prior trespasser and sit pretty pleading that the title is·in some·
one else. The Jaw does not countenance the doct'rine of 'findings keepinw.'.
u·
[179 H, 182 F-G]
Perry v . . Cllsso/d, [1907] AC. 73, Burlin/! v. Read, 11 Q. B. 904 and
Smith v. Oxenden. 1 Ch. Ca 25, appJ;ed.
.
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NAIR SERVICE SOCY. V. ALEXANDER (Hidayatul/ah, !.)
165
Dlzc.rani Kllanta Lalliri v. Garbar Ali Khan, 25 ·M.LJ. 9 P. C. and
Afa/u;hir Prasad v. Ja1nuna _Singh, 92 LC. 31 P.C. distinguished,
(vi) The plaintiff's claim could not be refused on ground that he was
an offender liable to pZnalty under Regulation IV of 1091 M.E. and other
connected Regulation and rules. The Regulations were intended to regulate the relation of Government and persons but had no bearing upon the
8
relations between persons claiming to be in possession. The penalty under
the Regulations were a fine for wrongful occupation and in no· sense a
punishment for crime. The illegality of possession was not. thus a criminal
act and the. regaining lost possession could not he described as an action
to take·advantage of one's own illegal action. In fact the plaintiff was not
required to rely upon any illegality, Which is the consideration which makes
the courts deny their assistance a party. [183 C-D]
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Ho/mas v. Johnson, (1775) 1 Cowpar 341, referred to.
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(vii) The Society had failed to amend its pleadings in .respect of suit
land marked L(l)(b), and had made a request to the High Court to
ailow such amendment only at the eleventh hour. But on the·facts and
circunis.!ances of the case it was desirable. to allow the amendment in order
to determine the effect of the 1948 lease On the rights of the parties in
L(l)(b). Without amendment another suit based on the second Kuthaka·
pattom was inevitable.
There is good authority for the proposition tltat
Subsequent events may be. taken note of if they tend to reduce litigation.
This was not one of those cases in which there was likelihood of prolonged
litigation after remand or in which a new case would begin.
[Case remanded to trial court to try issue arising out of amendment in respect of
L(l)(b)]. [187 D-E]
.
Ca<:""-law referred to.
(viii) The exact implications of the second K·uthakapattom after _the
amendment of pleadings as allowed were for the trial court to determine
but it was clear that the second Kuthakapattom could ncit be regarded as
re~roactive from the date -of the grant of the first Kuthakapattom. The
document granting the· 1948 lease. did not mention that it was retrospective.
A formal document which has no ambiguity cannot be varied by reference
to othe'r documents which are not intended to vary it. [187 G]
(ix) In respect of portion of the land L(l)(a) the appeal must be
di1missed. [188 D·E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1632
of 1966.
Appeal from the judgment and decree dated December 23,
1965 of !he Kerala High Court in Appeal Suit No. 406 of 1961.
M. K. Nambiar, N. A. Subramanian, K. Velayudhan
Nqir,
T. K. Unnithan, Rameshwar Nath and Mahinder Narain, for the
appellant.
S. V. Gupte, T. P. Pauloo·e, B. Dutta, Annamma Alexander,
J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for respondent No. 1.
166
SUPREME COURT REPORTS
(1968] 3 S.C.R.
The Judgment of the Court was delivered by
Hidayatull8'a, J.
This is an appeal by .certificate from. the
judgment of the High Court of Kerala, December 23,
1965,
reversing the decree of the Sub-Court,
Mave!ikara.
By
the
judgment and decree under appeal the suit of the first respondent, Rev .. Father K. C. Alexander (shortly· the plaintiff) was
decreed in respect of the suit lands of which he had sought possession from the appellant, Nair Service Society Ltd. (shortly the
Society or the first defendant) and some others who are shown
as respondents 2 to 6. The facts in this appeal are as follows :
The plaintiff filed a suit in forma pauperis on October 13,
1942 against ihe Society, its Kariasthan (Manager) and four
others for possession of 131.23 acres of land from Survey Nos.
780/1 and 780/2 of Rannipakuthy in tb.e
former
State of
Travancore and for mesne profits past and future with compensation for waste. The suit lands are shown as L( 1) on a map
Ex. L prepared by Commissioners in CMA 206 of 1110 M.E.
and proved by P.W. 10. The two Survey Nos. are admittedly
Government Poramboke lands.
The plaintiff claimed to be in
possession of these lands for over 70 years. In the year 1100
M.E. a Poramboke case for evicting hiin from an area shown as
L(2) measuring 173.38 acres, but described in the present suit
variously as 160, 161 and 165 acres, was started under the
Travancore Land Conservancy R.egulation IV· of
1094
M.E.
(L.C. c~e No. 112/1100 M.E.) by Pa~anamathitta Taluk
Cutchery. This land is conveniently described as 160 acres and
has been so referred to by the High Court and the Sub-Court.
The plaintiff was fined under the Regulations and was evicted
from the 160 acres.
The Society applied for Kuthakapattom
lease of this area 011 August 11, 1938. The lease was granted
but has not been produced in the case.
It was for 165 acres
and the Society was admittedly put in possession of it on July
24, 1939 or thereabouts.
The lease was for 12 years.
Plaintiff's case was that on 13/16 October, 1939 a nμmber of persons
acting on behalf of the Society trespassed upon and took possession of the suit lands (131.23 acres) in addition to the 160 acres.
The plaintiff, therefore, claimed possession of the excess
land
from the Soci.ety, its Manager and defendants 3 to 6, who were
acting on behalf of the Society. The plaintiff also claimed mesne
profits and compensation for waste.
The Society contended that the plaint lands were Government Reserve and that the plaintiff was dispossessed by Government from these lands when he was dispossessed of .the 16o' acres.
The suit land is in two parts. Ex. L. shows these two parts as
L (I )(a) and L 0 .)(b).
The Society had apP.lied · for another
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NAIR SERVICE SOCY. v. ALEXANDER (Hidayatullah, J.)
167:
Kuthakapattom lease in respect of L(l)(b) and obtained
it
during the pendency of the suit on March 10, 1948. In this
Kl/thakapattom, which is Ex. l, the land is shown as 256.13
acres and the lease is made without limit of time. Simultaneously a demand was made from the Society for arrears of Pattom at
1he same rate as for the Kuthakapattom in respect of the whole
land after setting off the amount already paid by the Society.
The Society in its written statement did not aver that it was not
in possession of L(l)(a) and resisted the suit in regard to the
entire suit lands. Subsequently it attempted by argument to limit
its defence to L ( 1 )(b) which was additionally granted to it in
the Kuthakapattom Ex. 1. Although the suit pended for
17
years in the Sub-Court no application for amendment was made.
The Society asked for amendments several times, .the last being
on October 15, 1958 .. However, on the last day of hearing of
the appeal in the High Court (December 14, 1965) the Society
applied for an amendment of the written statement limiting its
defence to portion L(l)(b) disclaiming alt interest in portion·
0
LI 1 )(a) and attempted to plead the grant of the second Kuthakapattom in its favour on March 10, 1948. The High Court
rejected this application by its judgment
under appeal
and'
awarded possession against the Society of the entire suit land.
The Society in its case denied the right of the plaintiff to bring
a suit for ejectment or its liability for compensati.On as claimed·
by the plaintiff. In the alternative, the Society claimed the value
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of improvements· effected by it, in case the claim of the plaintiff
was. decreased against it. The other defendants remined ex-parte
in the suit and did not appeal. They have now been shown as
proforma respondents by the Society.
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The suit went to trial on 13 issues.
The main issues were
(a) whether the plaintiff was in possession of lands L(l) for
over 70 years and had improved these lands; (b) whether the·
first defendant was entitled to possession of any area in hcess
of the first K uthakapattom for 12 years; and ( c) whether tlie
trespas~ was on 13/16 October, 1939 or whether the plaintiff
was evicted on July 24, 1939 by the Government from the suit
land in addition to the 160 acres in respect of which action was
taken in the Land Conservancy case. ·other issues arose from therival claims for mesne profits and compensation to which refer~
e~ce has alrea~y J:>een m~de. The suit was dismissed by ~ !he
tnal Judge agamst the Society but was decreed against defendants
3 to 6 in respect of land L(t)(a) with mesne profits and compensation for waste. The trial Judge held that the possession of
the plaintiff dated back only to 1920-21 and that he was evicted
from portion L(l )(b) as per plan AZ and that the Society was
in possession from the time it entered into possession of 160
-.!68
SUPREME COURT REPORTS
[1968] 3 s.c.R.
.acres.
The trial Judge held that as the land was Poramboke
.and the plaintiff has been ousted by Government he could not
claim possession.
The subsequent ,grant
of
Kuthakapattom
(Ex. 1) was not considered relevant and the suit was decided
on the basis of the facts existing on the date of the commencement of the suit.
The trial Judge, however, held that if . the
plaintiff was entitled to ~ecover possession he would
also
be
entitled to mesne profits at the rate of Rs. 3,392/- from tlctober
16, 1939.
The defendants' improvements were
estimated
at
Rs. 53,085;-:
Possession of L(l) (a) was decreed with costs,
mcsne profits past and future, and compesation for waste against
defendants 3 to 6.
The plaintiff filed an appeal in forma pauperis.
The High
Court reversed the decree of the trial Judge and decreed it
against the Society and its Manager ordering possession of the
entire suit lands witlr mesne profits past and future, and compensation for any waste. The High Court held that the Society had
admitted its possession in respect of the entire suit land and that
the grant of Kuthakapattom in respect of L(I )(a) to defendants
3 to 6 by the Government was immaterial. The High Court held
that the evidence clearly established that the plaintiff was in
possession of the plaint lands at least from 1924 to 1925 and
that it made no difference whether the plaintiff was dispossessed
on October 16, 1939 as stated in the plaint or July 24, 1939 as
alleged by the Society.
The main
controversy,
which
was
decided by the High Court, was . whether the plaintiff could
maintain a suit for possession (apart from a possessory suit
under the Travancore laws analogous to s. 9 of the Indian
Specific Relief Act) without proof of title ·basing hil11self mainly
on his prior possession and whether the Society could defend itself pleading the title of the Government.
On both these points
the d~cision of the High Court was in favour of the plaintiff.
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In this appeal the first comenuon of the Society is that it did
not dispossess the plaintiff on October 16, 1939 but on July 24,
1939 when he was evicted from the 160 acres in respect of which. G
Poramboke case was started against hirn.
According
to
the
Society, if the plaintiff's possession was terminated by the rightful owner and the Society got its possession from the rightful
owner the suit for ejectme.nt could not lie. It may be stated
here that the plaintiff had applied for an amendment to implead
. Government but the amendment was disallowed by
the
trial
H
Judge.
In 1928 the plainti~ had filed O.~. 156/1~~3
3:gain~t
the Government for declaration of possess10n and miunction m
respect of the 160 acres of land and L(l)(b), but the suit was
NAIR SERVICE SOCY. V. ALEXANDER (Hidayatullah, J.)
169
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dismissed in default and a revision application against the
order of dismissal was also dismissed by the High Court of
Kerala: The suit had delayed the Poramboke case as a temporary injunction has been issued against Government.
On the
dismissal of that suit the first Kuthakapattom lease was granted
to the Society. The next contention of the Society is that a suit
in ejectment cannot lie wihout title and a prior trespasser cannot maintain the suit generally against the latter trespasser and
more particularly in this case in respect of lands belonging to
Government specially when the Iattei- trespasser (even' if it was
one) had the authority of the true owner either given originally
or subsequently but relating back to the date of the trespass. The
Society also submits that as trespass on Government land was
prohibited by law the plaintiff could not get the assistance of the
court. The Society, also contends more specifically that there is
no true principle of law that possession confers a good title
except against the owner or that possession is a conclusive title
against all but the true owner. In its submission, if a possessory
suit analogous to ·s. 9 of the Indian Specific Relief Act was no'.
filed by the plaintiff's only remedy was to file a suit for ejectrnent
pleading and proving his title to the suit land. A mere possessory suit after the expiry of 6 months was not possible. There
are other branches of t)Jese main arguments to which reference
need notl be made here. They will appear when these arguments
will be considered.
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The first question to settle .is when dispossession took place,
According to the plaintiff he was dispossessed on October 16,
1939 and according to the Society plaintiff was dispossessed on
July 24, 1939 when he was evicted from 160 acres. The trial
Judge accepted the case of the Society and the High Court that
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of the plaintiff. The High Court, however, remarked that it did
not mater when thil, plaintiff was first dispossessed, The difference
in dates is insisted upon by the Society because if it can show
that the plaintiff was dispossessed by the true owner, namely, th~
State, it can resist the suit pleading that it was in possession
under the authority of the owner and that the possession of the
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plaintiff was already disturbed and a suit in ejectment did not
. lie against it.
There are; howeve,r, several circumstances which
indicate that the plaintiff's case that dispossession took place in
October 1939, is true.
·
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To begin with we are concerned with three areas. The Land
Conservancy case concerned L(2) or 160 acres. The other two
areas are L(l)(a) 55.47 acres and L(l)(b) 75.76 acres. These
total t9 291.23 acres.
The·suit.was filed··. to obiain possession
L4 Sup CI/68-12
170
SUPREME COURT REPORTS
(1968] 3 S.C.R.
of 131.23 acres, that is to say, 291.23 acres minus the 160 acres.
The Society attempted to disclaim all interest in L( 1 )(a) and
even attempted to deny that defendants 3-6 were in possession of
it. This was not allowed for very good reasons. In the written
statement no distinction was made between L(l)(a) and L(l)
(b). Although amendments were allowed, no amendment of
the written statement to withdraw L(l)(a) from
dispute was
asked for.
The attempt consisted of oral arguments which the
Court did not entertain. Even in the High Court the written
statement was sought to be amended as late as December 14.
1965, the last day of the arguments.
The application had two
prayers.
About the second of the two prayers we shall say
something later but the amendment we are dealing with was not
only belated but also an after thought. The High Court rightly
points out that a defendant, who after trial of the suit for 16
years orally asks for the withdrawal of an admission in the
written statement, cannot be allowed to do so.
Therefore, the
dispute covered the entire 131.23 acres and the Society was claiming to be- in possession. The plaint had asserted that the defendants 2-6 were in possession and that defendant 2 was acting for
the Society.
In reply the Society claimed to be in possession.
It, however, led evidence on its own behalf that L(l)(a) was
not in its possession. That could not.be considered in view of
the admission in .the pleadings. The contrary admission of the
plaintiff that defendants 3-6 were in possession was cited before
us as it was before the High Court. But the High Court has
already given an adequate answer when it observes that the
plaintiff only said he had heard. this.
Therefore,
we· are of
opinion that the issue was joined between the plaintiff and the
Society with respect to the entire suit land.
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was dispossessed by the rightful owner, that is, the State. This
contention was accepted by the trial Judge but rejected by the
High Court.
We shall now consider it.
It is an admitted fact
that eviction in tlte Land Conservancy case took place on 8-121114 M.E. corresponding to July 24, 1939. Since the order was
to evict the .plaintiff from 160 acres, it is fair to assume that he
would be evicted from that area only. The Mahazar Ex. AG.
proved by the village Munsiff who was personally present, establishes that eviction was from 160 acres.
The High Court judgment mentions the names. of several other witnesses who have
also deposed in the same way.
The High Court also points out
that the rubber quotas from the rubber treeil continued to be in
the name of the plaintiff except in 160 acres in which the quotas
were transferred to the name of Government.
All this was very
clear evidence. Further even if some n\ore area was taken over
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NAIR SERVICE SOCY. V. ALEXANDER (Hidayatul/ah, /.)
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from the plaintiff, it would be small and not as much as 131.23
acres or even 75. 76 acres. It is to be noticed that the Society
applied on August 11, 1939 for grant of a Kuthakapattom only
in respect of 165 acres and this was on the basis of p<>sSession.
If the Society was in possession of 291.23 acres, it would not have
omitted on August 11, 1939 to apply for the additional area as
well. Another application was made for a second Kuthakapattom
in respect of the additional land on the basis of possession but
only after certain events happened. On September 29, a ' complaint (Ex. AO) was made by Phillippose Abraham (P.W. 8), the
Manager of the plaintiff, that the land was trespassed upon by
the Society's men . who had harvested the paddy. On October
2. 1939 the second defendant made a counter complaint Ex. AS.
This. made a mention of 'land from which the 1st accused (plaintiff) was evicted'. It is, however, to be seen that in the Mahazar
(Bxs. AT, AT-1 and AT-2) the encroached area is shown as 160
acres.
On October 13, 1939 one Krishna Nair made a complaint (Ex. AH) against plaintiff's men of beating and dacoity.
On October 16, the servants of the plaintiff were arrested. Bail.
was delayed and was only granted on October 20,. 1939.
On
October 24, 1939 the plaintiff complained of dispossession. The
case of dacoity was virtually withdrawn and the accused were
discharged.
The High Court accepted the. plea that the false
charge of dacoity and the arrest were a prelude to dispossession
and a ruse to get the servants of the plaintiff out of the way. On
looking into the evidence we cannot say that this inference is
"Tong.
The Society, however draws attention to several circumstances from which it seeks to infer the contrary.
We do not think
that they are cogent enough to displace the other evidence. We
may, however, refer to them.
The Society first refers to plaintiff's application (Ex. 16) on July 28, 1939 that he was dispossessed of suit buildings and requesting that 160 acres be correctly
de~~rcated. In ot~er documents also the plaintiff complained of
ev~cll~n from land 11;1 excess o! 160 acres and dispossession from
butldrngs. The Society submits that the evidence showed that
there were no buildings in 160 acres and that only bamboo huts
were to b~ found. . The map Ex. L shows some buildings in
L(2). It 1s more likely that as these buildings were close to the
western boundary between L(2) and L(l), the plaintiff hoped
that he would be abl!" to save them as on admeasurement they
:vould . ~e found outside 160 acres. It may be mentioned that
m add1t10n to 160 acres, land 20 acres in extent was further encroach~d upon. _This land is shown in plan Ex. BB and represents httle extens10ns all round the 16(,) acres. If this area was
taken into account and 160 acres admeasured then there was a
possibility of the buildings being saved. This is a ~ore rational
172
SUPREME COURT REPORTS
[1968] 3 S.C.R.
explanation than the contention that as many as 13 i.23
acres
were additionally taken in possession when the plaintiff was dispossessed from 160 acres.
We have therefore, not departed from
the finding of the High Court which we find to be sound.
Failing on the facts, the Society takes legal objections to the
suit. According to the learned counsel for the Society the suit
· in e jectment, based on possession in the character of a trespasser
was not maintainable. His contention is that a trespasser's only
remedy is·to file a suit under s. 32 of the Travancore Limitation
Regulation (VI of 1l 00) as amended by Regulations IX of 1100
and 1 of 1101, but within 6 months.
This section corresponds
to s. 9 of the Indian Specific Relief Act. Now if dispossession
was by Government the suit could not be filed because there was
a .bar to such a &11it. If dispossession was by the Society a suit
under s. 32 was· competent. The question is whether after the
expiry of 6 months a regular suit based on prior possession withol,it 'proof of 'title was maintainable. This is the main contention
'on merits. although it has many branches.
We now proceed to
consider· it.
This aspect of the case was argued by Mr. Nambiar . with
great elaboration for a number of days.
The argument had
many facets and it is convenient to deal with some facets separately
because they have no inter connection with others and some.others
together. The main argument is that a suit by a trespasser does
not lie for ejectment of another trespasser after the period of 6
months prescribed by s. 32 of the Travancore Limitation Act (VI
of 1100). The provisions of the Travancore Specific Relief Act
{XIII of 1115)' are iil pari materia and also i[JSissima verba with
· 1he Indian Specific Relief Act and are set out below•.
•ACT XIII OF lllS.
"S. 7. Recovtry of specific lmin.ovahle property,
A person entitled to the
possession of specific immovable property may recover it in the- manner pres·
cribed .bY the Code of _Civil Procedure."
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"S. 8. Suit by person dispoJMeSNil of immovable pro~rty. Jf any person is
disp9ssessed without his c;onsent of immovable property otherwise than in due
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course of I.aw, he or any person claiming through him may be -·suit recover
possession thereof, notwithstanding any other title~ that may be set up in such
-suit.
Nothing in this Section shaU bar ·any person from suf:ig to establish. his
title ~o such property and to recover possession thereof.
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No suit under this section sha11 be brought aa.ainst Our Government.
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No appeal ·shall lie from any order or decree passed in any suit imtituted
under this secticr.i. nor shall anv review of any such ·order or decree be
.allowed."
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It is convenient to refer to the Indian Act.
According to Mr.
Nambiar a contrast exists between ss. 8 and 9 of the Specific
Relief Act. These Sections are reproduced below*. Mr. Nambiar
submits that s. 8 refers to suits for possession other than those
under s. 9, and while question of title is immaterial in suits under
s. 9, under s. 8 a suit for e jectment must be on the basis of title.
In other words, in a suit under s. 8 title must be proved by a
plaintiff but under s. 9 he need not.
Once the period of six
months has been lost a suit brought within 12 years for obtaining
possession by ejectment must be based on title and not bare prior
possession alone.
In support of this argument Mr. Nambiar refers to Roman
Law of Interdicts and urges that the same distinction also existed
there and has been borrowed by us through the English practice.
We may first clear this misconception.
Possession in Roman Law
was secured to a possessor by two forms of Interdicts-Utipossidetis for immovables and utrubi for moveables. But we are not
concerned with these, but with actions to recover possession which
were compendiously called recuperandae possessionis causa.
•ACT YI OF 1110.
"S. 32. Right to sue for recovery of unlawfully dispossessed property by
person so disposSessed or his representative. Jf any person is dispos$essed with·
out his consent of any house. building or land otherwise than in due coutse of
law, he or any person claiming through him may by suit instituted within the
period prescribed in Article 2 of the First Scl.iedule appended to this Regula~
tion, recover possession thereof, ·notwithstanding any other title that may be set
up in such suit.
Excep1io11 : Nothing in this section shall bar any person from suing to
establish his title to such property and to- recover possession thereof.
Bar to sttit against Gover11111e11t 1111der this sectio11. No suit under this section shall be brought against our Government."
INDIAN SPECIFIC RELIEF /\CT.
"S. 8. Recovery of Sp·ecific immoveable property. A person entitled to the
possession of specific immoveable property may r~over it in the manner prescribed by the Code of Civil Procedure."
"S. 9. Sttit by person di.~possessed of inunoveable property.
If any· person
i<> dispossessed without hi~ consent of immoveable property: otherwise than in
due course of law, he or any person claiming through him may. by suit.
recover possession thereof, notwithsta:iding any other title that maY be set up
in such suit.
Nothing in this section. sha,11 bar any per..bn from suing to establish his
title to such property and to recover possession thereof.
No suit under this section shaU be brought against the Central Government.
or any State Government.
'No appeal shall lie from any order or decree. passed in any suit instituted
under this section. nor shall any review of any such order or decree he
allowed."
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SUPREMll COUllT REP()f.TS
{1968) 3 S.C.R.
There: werl} two interdicts known as deprecario and de vi. Of the
latter two of tbe branches were the Iaterdict de vi cotidiana by
whic)J. possession was ordered "to be restored on an application
made within the year where one had been ejected from land by
force, provided there had not been vi dam.· aut precario from the
ejector." The other d evi armata for ejection by armed force,
was without restriction of time.
Mr. Nambiar says that the same
distiQ.cti<>l) exists between suits under ss. 9 and 8 of the Specific Relief Act. This is aa ingenious way of explaining his point
of view but it does not appear that these principles of Roman Law
at all influenced law making.
These principles were in vogue ia
early Roman Law. In the time of Justinian the two Interdicts
de vi were fused a.nd there was only one action represeating both.
Even the clausa about vi clam aut precario disappeared and the
restriction toi a year applied to be.th. The appeal to Roman Law
does not, therefore, assist us.
We may now consider whether ss. 8 aad 9 are to be distinguished on the lines suggested.
In Mulla's Indiaa Contract and
Specific Relief Acts there is a commentary which explains the
words 'in the manner prescribed by the Code of Civil Procedure'
by observing-
"that is to say by a suit for ejectment 011 the basis of
title: Lachman v. Shambu Narain (1911)
33 All.
174"
The question in that case in the words of the Full Bench was-
"The sole questioa raised in this appeal is whether a
plaintiff who sues for possession an,d for ejectment of
the defendant 011 the basis of title and fails to prove his
title is still entitled to a decree for possession under
section 9 of the Specific Relief Act, 1877, if he can
prove possession within six months anterior to the date
of his dispossession."
In the course of decision the Full Bench dissented from
the
earlier view in Ram Harakh Rai v. Sheodihal Joti(') and observed:
"With great respect we ate unable to agree with this
view. Section 8 of the Act provides that a person entitled to the possession of specific immovable property may
recover it in the maaner prescribed by the Code of Civil
Procedure, that is to say, by a suit for ejectment 011 the
basis of title. Section 9 gives a summary remedy to a
person who has without his consent been dispossesSed
of immovable property, otherwise than in due course of
law, for recovery of possession without establishing title,
It) [1893] JS All. 384.
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:<AIR SERVICE SOCY. v. ALEXANDER ( Hidayatullah, I.)
17 5
provided that his suit is brought within six months of
the date of dispossession. The second .paragraph of
the section provides that the person against whom a
decree may be passed under the first paragrap~ m~y,
notwithstanding such decree, sue to establish his title
and to recover possession.
The two sections give alternative remedies and are in our opinion mutually exclusive. If a suit is brought under section 9 for recovery
of possession, no. question of tit~e c~ be raised or. determined.
The obiect of the section 1s clearly to d1SC011rage forcible dispossession and to enable the person dispossessed to recover possession by merely proving title,
but that is not his only remedy.
He may, if he so
chooses, bring a suit for possession on the basis of his
title.
But we do not think that he can combine both
remedies in the· same suit and that he can get a decree
for possession even if he fails to prove title. Such a
combination would, to say the least of it, result in anomaly and inconvenience.
In a suit under section 9_ no
question of title is to be determined, but that question
may be tried in another suit in~tuted after the decree
in that suit. If a claim for establishment of title can
be combined with a claim under section 9, the court will
have to grant a decree for possession or dispossession
being proved, in spite of its finding that the plaintiff
had no title and that title was in the defendant."
We agree as to a part of the reasoning but with respect we
cannot subscribe to the .view that after the period of 6 months
is over a suit based on prior possession alone, is not possible.
Section 8 of the Spei:ific Relief Act does not limit the kinds of
suit but only lays down that the procedure laid down by the Code
of Civil Procedure must be followed. This is very different from
saying that a suit based on possession alone is incompetent after
the expiry of 6 months.
Under s. 9 of the Code of Civil Procedure itself all suits of a civil nature are triable excepting suits
of which their cognizance is either expressly' or impliedly barred.
No prohibition expressly barring a suit based on possession alone has been brought to our notice, hence the added attempt
to show an implied prohibition by reason of s. 8 (s. 7 of the
Travancore Act) of the Specific Relief Act.
Tbefe is, however,
good authority for the contrary proposition. In Mustapha Sahib
v. Santha Pillai('), Subramania, Ayyar J. observes :
" .... that !I party ousted by a person who has no better
right is, with referenc!l to the person so ousting, entitled
to recover by virtue of the possession he had held before
(0 l.L.R. 23 Mad. 179 at 182.
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SUPREME COURT REPORTS
(1968) 3 S.C.R.
the ouster even though that possession was without any
A.
title."
;'The rule in question is so firmly established as
to
render a lengthened discussion about it quite superfiuous. Asher v. Whitlock (L.R. 1 Q.B. 1) and the rulings
a
of the Judicial Committee in M 11sammat Sundar v.
m11ssammat Parbati (16 I.A. 186) and Ismail Arif] v.
Mahomed Ghouse (20 I.A. 99) not to mention numerous other decisions here and in England to the same
effect, are clear authorities in support of the view stated
above. . . . . . Section 9 of the Specific Relief Act canc
not possibly be held to take away any remedy available
with reference to the well-recognised doctrine expressed
in Pollock and Wright on possession thus :- Possession
in law _is a substantive right or interest which exists ·
and has legal incidents and advantages apart from the
owner's title (p. 19)".
·In the same case O'Farell J. point> out that
"all the dictum of ·the Privy Council in Wise v. Ameerunissa Khatoon (7 I.A. 73) appears to amount to is this,
that where a plaintiff ill.