Nair Service Society Ltd v K.C. Alexander

Facts

The plaintiff sued for possession of lands alleging that he had been in possession for about 70 years and was forcibly dispossessed by the defendants. The defendants denied forcible dispossession and contended that a suit for possession did not lie without proof of title, that a prior trespasser could not eject a later trespasser, and that a mere possessory suit after expiry of six months was barred under section 9 of the Specific Relief Act, 1877. The High Court held the plaintiff was in possession before suit and could maintain a suit on prior possession without proving title, and could eject the defendants.

Issues

• Whether a plaintiff dispossessed of immovable property can recover possession on the strength of prior possession alone, without proving title, against a trespasser.
• Whether the special summary remedy under section 9 (now s. 6) bars a regular possessory suit (under s. 8, now s. 5) brought after six months.
• Whether the defendant can defeat such a suit by setting up title in a third party (jus tertii).

Arguments

The defendants argued that without proof of title no suit for possession lies, that one trespasser cannot eject another, and that after six months only a title suit survives. The plaintiff argued that prior peaceful possession is itself a good title against all but the true owner and is enforceable by ejectment against any later dispossessor.

Held

The Supreme Court affirmed the High Court and held that the provisions of sections 8 (now s. 5) and 9 (now s. 6) are not mutually exclusive. Section 9 merely provides a speedy summary remedy where title is irrelevant if sued within six months; after that period a plaintiff may still sue under s. 8 (now s. 5) within twelve years on the basis of prior possession, and title need not be proved unless the defendant proves a better one. Possession is a good title against all but the true owner, and a person who comes earlier into possession can eject a later trespasser. A defendant cannot defeat the claim by pleading jus tertii — that some third person, not the plaintiff, is the true owner.

Ratio decidendi

Prior possession is, by itself, good title against everyone except the true owner; a plaintiff dispossessed otherwise than in due course of law may recover possession on prior possession alone in a suit under s. 5 within twelve years, and a wrong-doer cannot resist by setting up title in a third party.

Significance

Leading and oft-cited authority settling that the remedies under ss. 5 and 6 are independent and cumulative, endorsing the English rule (Perry v Clissold; Asher v Whitlock) in India, and rejecting the 'findings keepings' doctrine. It resolved the long-standing divergence of High Court opinion in favour of protecting possessory title and has been consistently followed (e.g. Somnath Berman v S.P. Raju, AIR 1970 SC 846).

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