The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession that has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force.
The court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’:
- That the trespasser must be in actual physical possession of the property over a sufficiently long period;
- That the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
- The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
- That one of the casual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
In the present case, the court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The trial court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.
In the case of Morgan Stanley Mutual Find vs. Kartick Das after considering various authorities, the Hon’ble Apex court laid – down the guiding principles in relation to the grant of ad-interim injunction.