The burden of proof lies on the party claiming entitlement to possession of immovable property, and protection of possession can be granted under the Specific Relief Act based on settled possession, even without proving title to the property.

JUDGMENT

S.C. Gupte, J. - This second appeal challenges an appellate order passed by the District Court at Nashik allowing the appeal filed by the Respondents (original Defendants) and dismissing the suit filed by the Appellant (original Plaintiff), which was originally decreed by the trial court. The suit was essentially on the basis of an alleged settled possession of the Plaintiff; it sought to restrain the Defendants from interfering with, or causing any obstruction to, such possession. The substantial question of law, on which the appeal was admitted, is set out below:

"Where trial court has recorded finding of exclusive possession of Plaintiff, are entitlement to possession and actual possession different things?"

2. After the parties are heard, the question has been reframed as follows :

"Can a suit filed for protecting possession of immovable property based on settled exclusive possession be dismissed on the ground that the Plaintiff has failed to prove title to the suit property?"

3. The suit property consists of land bearing Gat No.443 situate at Adgaon, Taluka Chandwad. It admeasures about 6 H and 37 R. This land was admittedly a self-acquired property of one Hamid Husein, who had purchased, and was in cultivation of, the same. It was the case of the Plaintiff that at the age of 105 years, Hamid Husein expressed an intention to make a gift of the property to the Plaintiff and gave its physical possession to the Plaintiff, who accepted the same. It was submitted that thereafter, that is to say, after making of the oral gift, which was accepted by the Plaintiff, Hamid Husein applied to the Tahsildar, Chandwad for mutation of the suit property in the name of the Plaintiff in the revenue records. In accordance with this application, a mutation entry was effected in the name of the Plaintiff. Hamid Husein subsequently died, whereafter, the Plaintiff continued to be in exclusive possession and occupation of the suit property and was cultivating the same. It was the grievance of the Plaintiff that the Defendants, who had no concern with the suit property, were obstructing the Plaintiff and his labourers in cultivating crops in the suit property. Accordingly, the Plaintiff filed the present suit for a perpetual injunction against the Defendants restraining the latter from interfering with or obstructing the Plaintiff''s possession of the suit property. By his judgment and decree dated 31 December 1987, the Civil Judge, Junior Division, Chandwad, decreed the suit granting the Plaintiff the perpetual injunction prayed for. On the Defendants'' appeal before the District Court, Nashik, this decree was set aside by the District Court and the suit was dismissed by the impugned order dated 30 July 1992. Being aggrieved, the Plaintiff has filed the present second appeal.

4. The trial court, in its judgment and decree, held the gift from Hamid Husein to the Plaintiff as proved. The court held that the suit property was a self-acquired property of Hamid Husein Shaikh and upon its gift, was exclusively owned and in possession of the Plaintiff and that the Defendants were unlawfully obstructing its peaceful possession of the Plaintiff. The Defendants'' case was that the suit property was ancestral property of the Plaintiff, the Defendants and the deceased Hamid Husein Shaikh and was being jointly cultivated by the Defendants along with the Plaintiff, was not accepted by the trial court. The trial court, accordingly, held that the Plaintiff was entitled to a perpetual injunction restraining the Defendants from interfering with or obstructing his possession.

5. The lower appellate court, in its impugned judgment, agreed with the conclusion of the trial court that late Hamid Husein was the exclusive owner of the suit property. The court, however, held that the Plaintiff had failed to prove that the suit property was gifted by Hamid Husein to him and accordingly, the Plaintiff was not entitled to the injunction prayed for. The District Cour