Bombay HC: Remedy U/S 6 Of Specific Relief Act Cannot Be Granted To Person Having No Intention To Reside In Suit Premises

 Considering the overall conspectus of the case, I am of the view that Plaintiff has thoroughly failed to prove prima facie case of being in settled possession of the suit premises as on the date of alleged dispossession. He is a permanent resident of Jordan. He has neither resided continuously or permanently in the suit premises nor has any intention of doing so. Restoring his alleged occupation of suit premises would merely result in Plaintiff locking the suit premises and returning to Jordan. Relief under Section 6 of the Act cannot prima facie be granted in favour of Plaintiff who never had the intention of possessing the suit premises. In absence of element of animus possidendi, Plaintiff ’s settled possession of the suit premises is prima facie not established. Plaintiff would also not suffer any irreparable loss if temporary injunction is refused as he is otherwise not a resident of the suit premises. He will not lose his shelter on account of non-restoration of possession during pendency of the suit. The balance of convenience is also heavily tilted against the Plaintiff. If Plaintiff claims tenancy right in the suit premises, he can file a declaratory suit in Court of Small Causes and secure appropriate relief for restoration of possession of the suit premises. If on the other hand, Plaintiff claims ownership in respect of the suit premises, he can institute a suit for recovery of possession based on title. In both his capacities as alleged tenant or owner, he will have to ‘claim’ possession of suit premises, which was with Radheshyam. Thus, there are ample remedies available to the Plaintiff to seek possession of the suit premises and no loss or prejudice would be caused to him if he is not immediately put in occupation of the suit premises. {Para 24}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L)NO. 30022 OF 2025

IN SUIT (L) NO. 30021 OF 2025

Gaurav Sri Kalyan Vs Ram Naresh Singh and Others 

CORAM : SANDEEP V. MARNE, J.

DATED : 13 OCTOBER 2025.

Citation: 2025:BHC-OS:19047.

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Whether rightful owner of land can retake possession of land?

 In the case of Rame Gowda (dead) by Lrs. v. M.
Varadappa Naidu (dead) by Lrs. and another, (2004) 1 SCC
769, a threeJudge
Bench of this Court, while discussing the
Indian law on the subject, observed as under:8
“8. It is thus clear that 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 the 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 with his possession. The law will come to
the aid of a person in peaceful and settled
possession by injuncting even a 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.”
13. The crux of the matter is that a person who asserts
possessory title over a particular property will have to show that
he is under settled or established possession of the said property.
But merely stray or intermittent acts of trespass do not give such

a right against the true owner. Settled possession means such
possession over the property which has existed for a sufficiently
long period of time, and has been acquiesced to by the true
owner. A casual act of possession does not have the effect of
interrupting the possession of the rightful owner. 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. 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. There cannot be a
straitjacket formula to determine settled possession. Occupation
of a property by a person as an agent or a servant acting at the
instance of the owner will not amount to actual legal possession.
The possession should contain an element of animus possidendi.
The nature of possession of the trespasser is to be decided based
on the facts and circumstances of each case.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4527 OF 2009

POONA RAM Vs  MOTI RAM
Dated:January 29, 2019.
MOHAN M. SHANTANAGOUDAR, J.
Citation: 2020(1) MHLJ 183

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Whether court can grant temporary injunction even though possession of plaintiff is not lawful?

 From the perusal of the Judgment of the lower Court, it is manifest
that the trial Judge has referred to the photographs filed on record and has also
observed that the plaintiff runs business of automobiles  therein.  But, has further
observed that plaintiff has failed to prove that he is in lawful possession.  Even a

trespasser in settled possession is entitled for injunction as has been held by the
Apex Court in the case of   Rame Gowda (dead) by L.Rs.  V/s  M. Varadappa
Naidu (dead) by L.Rs. and another  reported in 2004 (1) Supreme Court Cases
– 769.   Further, even the defendants had come forward with the case that the
plaintiff was in possession of the suit property  on the basis of Leave and Licence
agreement of 7 years.  Once it is admitted that plaintiff was inducted in possession
of the suit property, then the presumption would be in favour of the continuity of
possession     unless   the   defendants   pleads   and   proves   that   the   plaintiff   was
dispossessed.     In   the   present   case,   no  such   prima   facie  evidence   appears   on
record.  More over, taking into account   the   observations   of   the Civil Judge
(Sr. Division), Ahmednagar, who   has   held   that   the   plaintiff   runs   the
business of automobiles in the suit premises, then the necessary corollary would
be that he is in possession.  Whether the possession is lawful or not  would be
decided after the evidence is led.  Prima facie, as such, it appears that the plaintiff
is in possession of the suit property.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 31 OF 2010
Baban  Anantrao Naik      
V 
Sau. Pramila Uttamrao Yenare & Oths.               .... 
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
                 CORAM :  S.V. GANGAPURWALA, J.
                  DATE  :   12/10/2010
Citation: 2011 (6) ALLMR 15

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When trespasser can be said to be in settled possession of property?

In Puran Singh and Ors.'s case (supra), the 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 strait-jacket. 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 the trespasser must be in actual physical possession of the property over a sufficiently z long period;
ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment 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;

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7662 of 2003

Decided On: 15.12.2003

Appellants: Rame Gowda (D) by Lrs.
Vs.
Respondent: M. Varadappa Naidu (D) by Lrs. and Anr.

Hon'ble Judges/Coram:
R.C. Lahoti, B.N. Srikrishna and G.P. Mathur, JJ.

Citation:AIR 2004 SC 4609

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Whether person in settled possession can be evicted by municipal corporation in public interest?

As noted hereinabove, the appellants have been
consistently held not to be encroachers or trespassers on the
land in their occupation, they having been let in thereto by the
erstwhile Gram Panchayat, the then owner thereof. The land
has since changed hands and is vested in the State
Government. In our view, both the appellants and the
respondents/defendants have to share the blame of leaving the
compromise decree unexecuted for over a decade whereafter
fresh rounds of confrontations surfaced leading to the present
situation. Be that as it may, though there has been no
determinance of the appellants’ right, title and interest in the
land, except that they are admittedly in continuous possession
since the year 1970 and carrying on their business there,
understandably, over the years, they have settled themselves in
their plots and are earning their livelihood from the income of
the business dealings. Though the build up of facts, since the
compromise decree cannot be discarded, the contemplated
measures of the respondents, to clear the area of the
encroachments in public interest and for its overall
development, would result in the displacement of the
appellants as a compelling necessity. As a corollary, they have
to be essentially rehabilitated or adequately compensated
bearing in mind, the impact of the passage of time on the
relevant perspectives since the date of the compromise decree.

REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 14016 OF 2015

SAYYED RATANBHAI SAYEED Vs  SHIRDI NAGAR PANCHAYAT 

Citation:(2016) 4 SCC631
Author: AMITAVA ROY,J.

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When a trespasser is deemed to be in settled possession of property?

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 strait-jacket. 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 the 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 or implied) of the owner or without any attempt at concealment 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 culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

Supreme Court of India

Rame Gowda (D) By Lrs vs M. Varadappa Naidu (D) By Lrs. & Anr on 15 December, 2003

Author: R Lahoti

Bench: R.C. Lahoti, B.N. Srikrishna, G.P. Mathur

Citation;2014 ALLSCR (O.C.C.)230

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