A trespasser in settled possession of land can protect his possession against anyone other than the true owner, and even the true owner cannot dispossess the trespasser except by due process of law.

R.B. Dixit, J.

1. This Second Appeal has been placed before this Bench for decision in view of the reference made by order dated 6-5-1997 by a learned Single Judge of this Court under Rule 9(1) of the Rules and Orders of the High Court.

2. While admitting the appeal vide the order dated 23-4-1993, the Learned Single Judge (Hon'ble Shri R.C. Lahoti, J, as he then was had formulated the following substantial questions of law:

(i) Whether the plaintiff should have been held to have been in possession of the suit property?

(ii) Whether the plaintiff was entitled to protect his possession even against true owners in spite of his having no title to the property?

3. We have heard the Learned Counsel of both the parties and have carefully perused the record.

4. The facts in brief shorn of details and necessary for the disposal of this appeal lay in a narrow compass:

The appellant-plaintiff had filed a suit for declaration that he was the Bhmiswami in possession of the land in dispute wherein the defendants 1 and 2 had no right and permanent injunction restraining the defendants from interfering in his possession and further not to get it recorded in his favour in the Court of Civil Judge Second Class, Ganj Basoda. The plaintiff claimed himself to be in possession as sub-tenant of agricultural land bearing S. No. 89 of village Ahar. Defendant-respondent No. 1 Mann Singh was recorded as Bhumiswami in Khasra and Khatoni of the disputed land. It is alleged that Maan Singh transferred this land to defendant-respondent No. 2 Dashrath Singh by a registered sale-deed dated 29-11-1977. Under the garb of this transfer, defendant-contesting respondent No. 2 Dashrath Singh wanted to take forceful possession from the plaintiff which necessitated filing of the suit by the appellant-plaintiff.

5. Although the defendant-respondent No. 1 Maan Singh admitted plaintiff-appellant as sub-tenant (Up-Krishak) of the land, but the reply of defendant-respondent No. 2 was that he is the transferee true owner of the disputed land on the strength of his sale-deed duly executed by defendant No. 1. The State Government also disputed title of the plaintiff on the ground that he had not instituted any proceedings under section 190 of the Madhya Pradesh Land Revenue Code for conferment of Bhumiswami Rights.

6. The learned trial Court, after recording evidence of both the parties, came to the conclusion that though the plaintiff was in possession of the suit land and his possession had also been recorded in some of the Khasra entries, however, he had failed to establish his title as a sub-tenant. Since the Plaintiff failed to prove his title to the land, his suit was dismissed accordingly. The appellant thereafter filed 1st appeal before the Additional Judge to District Judge, Vidisha at Ganjbasoda and the Appellate Court also endorsed the findings of the trial Court and dismissed the appeal.

7. It was argued on behalf of the appellant before the learned Single Judge of this Court that appellant being settled in possession can claim injunction against true owner. Reliance was placed on Puran Singh and others. v. State of Punjab, reported in AIR 1975 SC 1674 and Krishna Ram Mahale vs. Mrs. Shobha Venkat Rao, reported in AIR 1989 SC 2097. The Learned Counsel for the respondent No. 2 Dashrath Singh opposed this contention and in support of his submission, placed reliance on a judgment of Hon'ble Supreme Court in the case of Premji Ratansey Shah and others. vs. Union of India and others. (1994) 5 SCC 547, and various other cases.

8. It has been observed by the learned Single Judge in his order dated 23-4-1993 while admitting the appeal that no case is made out for hearing on question 'B' suggested in the memo of appeal. It is a finding of fact concurrently recorded by the Court below that the plaintiff was not a subtenant of the suit land and his claim regarding accrual of tenurial right in the land in dispute was not acceptable. The submission challenging this finding was r