Possessory title can be 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.

1. The second appeal which is filed by the defendant has been referred to the Division Bench by Madhavan Nair J. in view of the conflict of decisions on the question of law to be decided.

2. The suit is filed by the respondent for declaration of title and recovery of possession of the plaint items on the ground that he was dispossessed by the appellant on 26-12-1955. Item No.1 covers an extent of 7 cents and item No. 2 is a but standing in item No. 1. The appellant contended that item No.1 is a puramboke land belonging to the State and since the respondent has no title he is not competent to recover possession of the items from the appellant. The courts below found that item No.1 is a poramboke land, but the respondent was in. possession of the property until he was dispossessed by the appellant on 26-12-1955. The trial court dismissed the suit holding that the suit is not maintainable as the respondent has no title to the property and his only remedy was to have filed a suit under S.9 of the Specific Relief Act, 1877, hereinafter referred to as the 'Act'. The Subordinate Judge took the view that the respondent on the basis of his prior possession is entitled to recover possession of the property from the appellant who has no title and who is only a trespasser even apart from S.9 of the Act and thus decreed the suit.

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 has 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.

4. If the person is dispossessed of immovable property otherwise than in due course of law, he has a summary remedy under S.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 S.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.

5. The statement of law is thus summed up in Pollock and Mulla, Indian Contract and Specific Relief Acts, 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 cannot 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 distinc