2008 Supreme(SC) 881

2008(3) Supreme 741
SUPREME COURT OF INDIA
S.B. Sinha and Lokeshwar Singh Panta,JJ.
Subramaniaswamy Temple, Ratnagiri —Appellant
Versus
V. Kanna Gounder (Dead) by LRs. —Respondent
Civil Appeal Nos. 7135-7136 of 2000
Decided on 14.05.08

IMPORTANT POINT
Nobody can take possession of an immoveable property except in accordance with law.

Headnote:Civil procedure Code, 1908 – Section 100 – Second Appeal - Appellant a temple in possession of a vast tract of land had been performing various other activities in relation to the temple - The classification of 32 acres of land of Survey No.370/1 was made as “Sri Subramanya Swamy Temple Poramboke” - By reason of such classification, appellant-temple obtained full right to possession and exercise right to transfer of lands assigned in its favour- A suit for eviction initiated against Respondent a licensee in respect of a shop situated in Survey No.370/1of said temple-. Dismissed on ground that Respondent had already taken possession and, therefore, remedy of appellant would only be to file a suit for recovery thereof - Appeal suit thereagainst was decreed-An appeal preferred thereagainst was also dismissed- Second appeal - Whereas Second Appeal filed by appellant was dismissed, that of respondent was allowed holding that appellant had failed to prove any title over said land by way of patta or otherwise as also the fact that possession had been delivered in its favour by State – Appeal - High Court, in its impugned judgment proceeded on basis that there had been no assignment in favour of temple by State - It committed an error in relation thereto - The paramount title of the State was not disputed- It remain vested in the State-The State, however, having regard to possession of appellant over 32 acres of land classified the same as ‘temple poramboke’- It, by reason of said classification, not only permitted appellant to continue to possess land but also granted a superior right, namely, to make constructions as also to grant lease thereof.- The principle of possessory title was, thus, completely overlooked by High Court- Nobody can take possession of an immoveable property except in accordance with law- Respondent was a licensee under the appellant- He was evicted from shop which was allotted in his favour- If he had encroached upon a portion of the Poramboke land, he could have been evicted by temple on the basis of its possessory title-. In a case of this nature, court was required to consider as to who was in prior possession- Only in the event respondent was in a position to show that he had a better title, he could continue with the possession-A finding of fact had been arrived at- Having regard to concurrent finding of fact as regards possession of the parties, vis-a-vis, their respective title in and over the suit land, High Court, while exercising its jurisdiction under Section 100 of Cpc, was required to formulate a substantial question of law-. No question of law was framed far less any substantial question of law relating to identification of property. -Impugned judgment being unsustainable set aside accordingly-Appeals allowed. (Paras 10 to 14)

       Facts of the Case:

        Present appeal has been filed against impugned order of High Court by which Second Appeal filed by appellant regarding eviction of Respondent was dismissed, but that of respondent was allowed holding that appellant had failed to prove any title over said land by way of patta or otherwise as also the fact that possession had been delivered in its favour by State.

       Findings of the Court:

       High Court, in its impugned judgment proceeded on basis that there had been no assignment in favour of temple by State. It committed an error in relation thereto. The paramount title of the State was not disputed. It remain vested in the State. The State, however, having regard to possession of appellant over 32 acres of land classified the same as ‘temple poramboke’. In a case of this nature, court was required to consider as to who was in prior possession. Only in the event respondent was in a position to show that he had a better title, he could continue with the possession .A finding of fact had been arrived at. Having regard to concurrent finding of fact as regards possession of parties, vis-a-vis, their respective title in and over the suit land, High Court, while exercising its jurisdiction under Section 100 of CPC, was required to formulate a substantial question of law. No question of law was framed far less any substantial question of law relating to identification of property. Impugned judgment being unsustainable hence was set aside accordingly.

       Result: Appeals allowed