A person in possession of land, even without title, can recover possession from a trespasser who has no title.

Anwar Ahmad, J.

1. This appeal by the defendants arises out of a suit for declaration of title and recovery of possession in respect of plots Nos. 2768 and 2767, measuring 0.47 and 0.05 acres, respectively, under Khata No. 92 of village Jarmunney, P.S. Bagodar, in the District of Hazaribagh, and for mesne profits from the date of dispossession till the date of recovery of possession.

2. The case of the plaintiffs-respondents was that Khata No. 92 belonged to Tulo Barhi and Doman Barhi who were recorded as such in the Record of Rights and after their death, their heirs came to have possession over the same. As the recorded tenants were short of bullocks, they gave the land to the respondents for temporary cultivation, who came to be recorded in the Record-of-Rights as under-raiyats; but shortly thereafter, these under-raiyats gave up possession in favour of the recorded tenants who came in direct cultivating possession of the same. The further case of the respondents was that the suit land was settled by Doman and Budhan, as Kartas of the joint family, with the fathers of the respondents on taking a salami of Rs. 15/- and at an annual rental of Rs. 1/10/-. This was followed by a Hukumnama which was granted in token of the aforesaid settlement. The respondents thereafter constructed a residential house on a portion of the land in suit and cultivated the other portion appropriating its usufruct. In 1959, the appellants instigated certain persons to drive out the respondents from possession and asserted their own status on the basis of the under-raiyati entry in the Record-of-Rights. A proceeding under Sec.144, Code of Criminal Procedure, cropped up which was later converted into a proceeding under Sec.145, Code of Criminal Procedure. It was decided against the respondents by order of the Court dated the 28th July, 1962. The present suit was filed by the respondents ou the 23rd December, 1963.

3. The defence of the defendants-appellants was that the suit was not maintainable; it was barred by limitation and it also suffered from defect of parties. The giving up of possession by the then tenants was denied by the appellants. They also denied the settlement in favour of the fathers of the respondents. The receipt and the Hukumnama relied upon by the respondents were said to be all spurious and manufactured.

4. The Courts below have held that neither the respondents nor the appellants had title to the land in suit in the capacity of being under-raiyats, but they have decreed the suit on the finding that the respondents were in possession of the disputed plots from 1936 onwards up to 1962 when the dispute as to possession cropped up between the parties. They have also found that the respondents were in possession up to the 28th July, 1962, when they were dispossessed on account of the judgment passed in the proceeding under Section 145, Code of Criminal Procedure.

5. Mr. Braj Kishore Prasad II in a brief but suttle argument has contended, on behalf of the appellants, that the Courts below have erred in the eyes of law in decreeing the suit of the respondents in spite of the finding that the title of the respondents was not proved. According to learned counsel, if a suit has to be brought for mere possession, it has to follow the provisions of Section 9 of the Specific Relief Act (old) which provides a period of six months for this purpose from the date of dispossession. According to learned counsel, as the respondents failed to prove their title, their suit for declaration of title and confirmation of possession could not be decreed in the eyes of law. In support of his submission, learned counsel relied upon the cases of Lachman V/s. Shambhu Narain, (1911) ILR 33 All 174 and Ram Chandra Sil V/s. Ramanmani Dasi, 20 Cal WN 773 = (AIR 1917 Cal 469). Both these cases are Full Bench decisions of the Allahabad and Calcutta High Courts, respectively. But, so far as this Court is concerned, the matter is settled by a series of decisi