Kuttan Narayanan vs Thomman Mathayi on 29 October, 1965, Equivalent citations: AIR 1966 Ker 179

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

Supreme Court of India

Nair Service Society Ltd vs Rev. Father K. C. Alexander & Ors

 on 12 February, 1968

Equivalent citations: 1968 AIR 1165, 1968 SCR (3) 163

အမှုတွင်ထုံးဖွဲ့ချက်မှာအောက်ပါအတိုင်းဖြစ်သည်-

“It cannot be disputed 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 by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.”

စာရေးသူ၏သီးခြားသက်သာခွင့်အက်ဥပဒေစာအုပ်စာမျက်နှာ၂၃တွင်အထက်ဖော်ပြပါစီရင်ထုံးပါထုံးဖွဲ့ချက်ကိုမြန်မာဘာသာဖြင့်ပြန်ဆိုကာအောက်ပါအတိုင်းဖော်ပြခဲ့သည်-

[ပိုင်ရှင်အသွင်ဖြင့်မြေလက်ရှိဖြစ်ပြီးပိုင်ရှင်၏သာမာန်အခွင့်အရေးကိုသုံးစွဲနေထိုင်သူတဦးသည်ပိုင်ရှင်အစစ်မှတပါးခပ်သိမ်းကုန်သောသူတို့နှင့်စပ်လျဉ်း၍ပိုင်ဆိုင်ခွင့်အခိုင်အမာရှိသည်။

ပိုင်ရှင်အစစ်သည်စည်းကမ်းသတ်ကာလအတွင်းမိမိအခွင့်အရေးကိုအရေးဆိုခြင်းမပြုလျှင်၊ထိုသူ၏အခွင့်အရေးသည်ဆိတ်သုဉ်းသွားပြီးလက်ရှိထားလျက်ရှိသောသူသည်ပိုင်ဆိုင်ခွင့်အပြီးအပိုင်ရရှိသည်။

ပိုင်ရှင်မဟုတ်သောအခြားသူကထိုသို့လက်ရှိထားခြင်းကိုအနှောင့်အယှက်ပြုလာလျှင်၊လက်ရှိထားသူသည်သီးခြားသက်သာခွင့်အက်ဥပဒေအရလက်ရောက်ရလိုကြောင်းစွဲဆိုနိုင်သည်။]

အင်္ဂလန်နိုင်ငံတွင်ကျင့်သုံးသည့်အခြေခံဥပဒေသဘောတရားမှာ-

“Prior possession is a good title of ownership against all who cannot show a better title”

“အလျင်လက်ရှိဖြစ်ခြင်းသည်သာလွန်သောဆိုင်ရေးဆိုင်ခွင့်ရှိကြောင်းမပြနိုင်သည့်သူတို့အားလုံးအပေါ် ပိုင်ဆိုင်မှုကိုထင်ဟပ်သောခိုင်မာသည့်ဆိုင်ရေးဆိုင်ခွင့်ဖြစ်သည်”ဟူ၍ဖြစ်သည်။ 

မြန်မာနိုင်ငံတွင်ကျင့်သုံးသောဥပဒေသဘောတရားနှင့်ကွဲပြားခြင်းမရှိ။

8 LBR 227 ( F B )စီရင်ထုံးတွင်”previous”ဟုသုံးသည်။

————————————————

Kerala High Court

Kuttan Narayanan vs Thomman Mathayi

 on 29 October, 1965

Equivalent citations: AIR 1966 Ker 179

Author: T K Iyer

Bench: S V Pillai, T K Iyer

JUDGMENT T.S. Krishnamoorthy Iyer, J.

ဒုတိယအယူခံမှုတွင်ဆုံးဖြတ်ရန်ဥပဒေပြဿနာနှင့်ပတ်သက်၍ခုံရုံးက၊စီရင်ချက်စာမျက်နှာ၁၊အပိုဒ်၃တွင်အောက်ပါအတိုင်းပြဆိုသည်-

“3. The sole question for decision in the appeal is whether in a suit for declaration of title and recovery of possession filed beyond six months from the date of dispossession, the respondent can merely on the strength of his prior possession which lias not extended for the full statutory period and ripened into an absolute title, recover possession from the appellant who is a mere trespasser and who has no title.”

သီးခြားသက်သာခွင့်အက်ဥပဒေပုဒ်မ၉၏ဥပဒေသဘောကို၊စီရင်ချက်စာမျက်နှာ၁၊အပိုဒ်၄တွင်အောက်ပါအတိုင်းမြွက်ဆိုသည်-

“4. If the person is dispossessed of immovable property otherwise than in due course of law, he has a summary remedy under Section 9 of the Act for recovery of possession notwithstanding any title.

The sole point which has to be determined in such a suit is whether the plaintiff was in possession within six months prior to the suit and whether he was dispossessed by the defendant otherwise than in due course of law. 

Title is no defence in such a suit. 

When a person dispossessed of immovable property by a person who has no title and who is a trespasser does not sue within six months for recovery of possession under Section 9 of the Act, can he bring a suit for recovery of his possession relying on his prior possession? 

On this point the authorities are not uniform.”

စီရင်ချက်စာမျက်နှာ၁နှင့်၂၊အပိုဒ်၅တွင်၊ဥပဒေပညာရှင် Pollock & Mulla ပြုစုသော၊အိန္ဒိယပဋိညာဉ်အက်ဥပဒေနှင့်သီးခြားသက်သာခွင့်အက်ဥပဒေကျမ်း(၈ကြိမ်မြောက်ထုတ်)စာမျက်နှာ၇၅၃တွင်ရေးသားထားချက်များကိုအောက်ပါအတိုင်းရည်ညွှန်းဖော်ပြသည်-

“5. The statement of law is thus summed up in Pollock & Mulla, Indian Contract and Specific Relief Act, 8th edition, page 753: 

"If a suit is brought under this section within six months from the date of dispossession, all that the plaintiff has to prove to entitle him to a decree is previous possession; he has neither to allege nor prove title. 

If the suit is not brought until after six months from the date of dispossession, the plaintiff can not recover on the strength merely of his previous possession; he can recover only if he proves his title to the land. 

But what if the suit is one for possession against a trespasser, that is, one who has no title to the land? 

Is it necessary in such a case for the plaintiff to succeed that he should prove his title, or is it sufficient if he proves his previous possession? 

On this point there is a conflict of decisions between the High Courts of Bombay, Allahabad Madras and Patna on the one hand, and the High Court of Calcutta on the other hand. 

According to the Bombay, Allahabad, Madras and Patna High Courts the plaintiff is entitled to succeed if he proves his previous possession; it is not necessary for him either to allege or prove his title. 

According to the Calcutta decisions, the plaintiff is not entitled to succeed if he merely proves his previous possession, for the plaintiff to succeed he should allege and prove his title, at the least possessory title, i.e., possession for twelve years. 

The distinction between the two conflicting views may be explained by an illustration; A, alleging that he had been in quiet and undisturbed possession of certain land for eleven years and six months and that ho was forcibly ousted from possession by B, who never had any title to the land at all, sues B, 8 months after the date of dispossession for possession. 

A has no title to the land at all, but it is proved that he had been in possession as alleged B also has no title of any kind to the land. 

Is A, entitled to a decree? 

According to the Bombay, Allahabad, Madras and Patna decisions, he is. 

These Courts proceed upon the principle of English Law, also recognised in India, that possession is a good title against all but the true owner and entitles the possessor to maintain ejectment against any other person than such owner who dispossesses, and they hold that this principle is not in any way affected by the provisions of the present section (Section 9 of the Act). 

According to the Calcutta High Court, A's possession being for a period less than 12 years, he is not entitled to possession, though B has no title. 

According to that Court the only case in which a plaintiff having no title can succeed against a trespasser on the strength of his previous title is that provided for by the present section, and that unless the suit is brought within 6 months from the date of dispossession, he is not entitled to any relief."

စီရင်ချက်စာမျက်နှာ၂နှင့်၃၊အပိုဒ်၆တွင်၊ Salmond on Jurisprudence ကျမ်း(၁၁ကြိမ်မြောက်ထုတ်)စာမျက်နှာ၃၄၅နှင့်၄၇၃၊၄၇၄ပါပြဆိုချက်များကိုအောက်ပါအတိုင်းရည်ညွှန်းသည်-

6. Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership. 

Even before the acquisition of statutory title by adverse possession for the requisite period under the Limitation Act, the possessory owner has well defined rights in property.

It is now settled beyond all dispute that this interest is heritable, devisable and transferable. 

This interest is referred to as possessory title as distinct from proprietary title. 

A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself. 

Salmond on Jurisprudence. Eleventh edition, observes at page 345

"In English law possession is a good title of right against any one 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."

and at pages 473 and 474 it is observed:

"On the other hand, the thing of which possession is taken may already be the property of some one else. In this case the title acquired by possession is good, indeed, against all third persons, but is of no validity at all against the true owner. 

Possession, even when consciously wrongful, is allowed as a title of right against all persons who cannot show a better, because a prior title in themselves. 

Save with respect to the rights of the original proprietor, my rights to the watch in my pocket are much the same whether. 

I bought it honestly, or found it, or abstracted it from the pocket of some one else.

If it is stolen from me, the law will help me to the recovery of it. 

I can effectually sell it, lend it, give it away, or bequeath it, and it will go on my death intestate to my next of kin. 

Whoever acquires it from me, however, acquires in general nothing save my limited and imperfect title to it, and holds if, as I do, subject to the superior claims of the original owner.

XXX XX If a possessory owner is wrongfully deprived of the thing by a person other than the true owner he can recover it. 

For the defendant cannot set up as a defence his own possessory title since it is later than and consequently inferior to, the possessory title of the plaintiff. 

Nor can he set up as a defence the title of the true owner--the jus tertii as it is called; the plaintiff has a better, because an earlier, title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. 

The expediency of this doctrine of possessory ownership is clear. 

Were il not for such a rule, force and fraud would be left to deter-mine all disputes as to possession, between persons of whom neither could show an unimpeachable title to the thing as the true owner of it."

Pollock & Wright in their book 'Possession in the Common Law' expressed themselves thus at page 91:

"Existing possession, however acquired, is protected against any interference by a mere wrongdoer; and the wrongdoer cannot defend himself by showing a better title than the plaintiff's in some third person though or under whom he docs not himself claim or justify.

 'Any possession is a legal possession'--i.e. lawful and maintainable--against a wrong doer.'

and at page 95:

"It would be possible at first sight to suppose that, as between a succession of independent occupiers who were all wrongdoers as against the true owner, the law must be indifferent, with the result of conferring an absolute title upon the person who happens to he in possession when the time of limitation expires. 

Reflection, however, shows this to be contrary to the reason and principles of the law. 

Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the incidents and advantages of a true title. 

In the language of the modern authorities, 'Possession is good title'--nothing less--'against all but the true owner'."

အင်္ဂလန်နိုင်ငံတွင်ကျင့်သုံးသည့်အခြေခံဥပဒေသဘောတရားအကြောင်းကိုစီရင်ချက်စာမျက်နှာ၃နှင့်၄၊အပိုဒ်၇၊၈၊၉တို့တွင်အောက်ပါအတိုင်းဖော်ပြသည်-

“7. The English doctrine of possessory title is expressed in the following terms by Cockburn, C. J., in Asher v. Whitelock, (1865) 35 LJQB 17:

"I take it to be established by authority that possession is good against all the world except the person who can show a better title than the one in possession Doe d Hughes v. Dyeball, (1829 Moo & M 346) shews that possession, even for a year, is sufficient against a mere subsequent possession.

The whole law of disseisin was founded upon the principle that the desseisin gives title to the disseisor against all the world but the disseisee.'

8. Their Lordships of the Judicial Committee of the Privy Council in Perry v. Clissold. 1907 AC 73 at p. 79 decided:

"It cannot be disputed 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 by process of law within he period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.

9. The above is certainly the doctrine of English Law. 

The rule of English Law that possession is good title against all but the true owner has been adopted by the decisions of the Indian High Courts and also by the decisions of the Judicial Committee of the Privy Council in the Indian cases. In Khajah Enaetoollah Chowdhry v. Kishen Soondur Surma, (1867) 8 Suth WR 386 at pp. 387 and 388, Dwarka-nath Mitter, J. posed the question thus:

"Can the Civil Courts give a decree for immovable property on the bare ground of illegal dispossession in a suit brought after six months from the date of such dispossession, it being borne in mind, however, that the defendant has failed to prove his own title to the same?"

and answered the same in the following terms: But we do not see any reason why a mere wrongful disposscssor should require proof from his adversary of anything beyond the illegal dispossession complained of. He himself has not got and never had any title to the land. 

The act of dispossession committed by him has been entirely without any sanction from law. Justice and equity require that he should be compelled to restore the party wronged by him to the same position which the latter enjoyed before the dale of the illegal ejectment. 

To adopt the contrary view appears to us to be tantamount to holding out a premium in favour of wrong and violence and in Hari v. Dhondi,(1906) 8 Bom LR 96 Sir Lawrence Jenkins, C. J. said:

"Possession is evidence of ownership, and is itself the foundation of a right to possession."

and Subramania Ayyar, J. in Mustapha Saheb v. Santha Pillai, (1900) ILR 23 Mad 179 at p. 182 said:

"that the rule of law that a party ousled by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that "possession was without any title" is so firmly established as to render a lengthened discussion about il quite superfluous.”

စီရင်ချက်စာမျက်နှာ၅နှင့်၆၊အပိုဒ်၁၀၊၁၁တို့တွင်အိန္ဒိယနိုင်ငံတရားလွှတ်တော်၏အမြင်များကိုအောက်ပါအတိုင်းဖော်ပြသည်-

“The principle underlying the rule that possession is a good title against all the world except the person who can show a better title is staled thus in Narayana Row v. Dharma-char, (1903) ILR 26 Mad 514 at p. 518:

"The principle underlying the rule of law in question seems to be that acquisition of title by operation of the law of limitation being a lawful mode of acquiring title, the person in peaceable possession is entitled to maintain such possession against all but the true owner and that therefore a third party who has no better title than the person in possession has no right to invade upon the possession of the latter and interrupt or arrest his lawful acquisition of title by his continuing to remain in possession for the statutory period. 

It is the true owner alone that is entitled to assert his title as against the person wrongfully in posses sion, and prevent such wrongful possession ripening  into prescriptive title. 

But a third party who without deriving title under the true owner and without his authority, interrupts such possession before it has ripened into prescriptive title, is a trespasser, not only against the true owner, but also against the party actually in possession; and, subject to the law of limitation, either of them is entitled to maintain a suit in ejectment against such intruder as a trespasser.

11. We are therefore of the view that a person in juridical possession, if dispossessed by a trespasser without title, can recover possession on the sole ground of his prior possession even beyond six  months from the date of dispossession and this is enough to dispose of the second appeal.”

စီရင်ချက်စာမျက်နှာ၉၊အပိုဒ်၁၉နှင့်၂၀တွင်ခုံရုံးကအောက်ပါအတိုင်းဆုံးဖြတ်သည်-

“19. We therefore fall in line with the decisions of the Allahabad, Madras, Bombay and Patna High Courts and hold that possessory title can be made the foundation for a suit in ejectment filed even after the expiry of six months from the date of possession against a trespasser who has no title.

20. In the result, the second appeal fails and is dismissed with costs.”