Bhartu vs Dewana and another

S.S. Sodhi, J.—The appeal here pertains to a 10 marlas plot No. 381 comprised in Khewat No. 476, Khatauni No. 542 in village Pega, district Jind.

It was the case of the plaintiff that he was a nonproprietor in possession of the plot at the commencement of the Punjab Village Common Lands (Regulation) Act, 1961 and by virtue of the provisions thereof, he became its owner. It was also pleaded that this plot has been reserved for him during consolidation. Plaintiff went on to allege that he had been forcibly dispossessed by the defendants and consequently sought a decree for possession.

The defendants denied the plaintiff''s allegations regarding his ownership of the plot and also put forth the plea that he had never been in possession thereof. Possession, they claimed, had been with them since the time of their forefathers.

The lower appellate Court came to the finding that the plaintiff had not become owner of the plot either by virtue of consolidation proceedings or under the Punjab Village Common Lands (Regulation) Act, 1961. It, however, confirmed the finding of the trial Court that the plaintiff was in possession of this land in 196162. The Court, thereafter, went on to record the finding in favour of the defendants that they had not taken illegal possession of the site in dispute. This finding cannot, but be construed as contradictory to the earlier one that the plaintiff was in possession in 196162 as there is no material on record forthcoming from the side of the defendants to explain how they came into possession if in 196162 possession of this plot was with the plaintiff. The finding, therefore, that the defendants had not taken illegal possession of the site cannot, therefore, be sustained.

Once the plaintiff succeeds in proving his possession and his dispossession is not shown to be legal or in accordance with law, he must indeed be held entitled to a decree for possession based upon his possessory title. The position in law, in this behalf, is wellsettled. Reference may be made here to the judgment of the Supreme Court in Nair Service Society Limited v. K.C. Alexander and others, AIR 1968 SC 1165, where it was held that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title in the event of disturbance of possession by a third party, the plaintiff can maintain a possessory suit under the provisions of the Specific Relief Act, for which title would be immaterial for a suit for possession within 12 years. A similar view was expressed in Somnath Berman v. Dr. S.P. Raju and another, AIR 1970 SC 846.

It follows that the plaintiff was clearly entitled to the decree for possession as prayed for. The judgment and decree of the lower appellate Court is accordingly, therefore, set aside and the plaintiff is hereby granted a decree for possession. This appeal is accepted with costs.