JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the plaintiff-appellant stands directed against the impugned judgment and decree of reversal dated 20.7.1989, and 2.8.1989, respectively passed in Title Appeal No. 61 of 1979 by Shri Anil Kumar Sinha, 3rd Additional District Judge, Dhanbad whereby and whereunder the judgment dated 31.3.1978, passed in Title Suit No. 164 of 1976, by 1st Munsif, Dhanbad was set aside and the suit of the plaintiff was dismissed. 2. The plaintiff-appellant has filed the said title suit for a declaration that the suit land described in Schedule B of the plaint is the part of Plot No. 369/511 which exclusively belongs to the plaintiff-appellant and the defendant- respondent has no right to demolish any portion of the building situate thereon and also for a permanent injunction restraining the defendant-respondent from interfering with the possession of the plaintiff-appellant over the structure situate thereon. The land in dispute in this case is 1 feet x 90 feet within plot No. 369/511. 3. The case of the plaintiff-appellant in brief is that she is the owner and in possession of Schedule A land of the plaint i.e. plot No. 369 appertaining to khata No. 24 having an area of 16 decimals i.e. 10 kathas more or less and plot No. 369/511 measuring an area of 7.3 decimals which she has acquired by registered deed of sale dated 19.6.1947, and she has her cinema house known as Desh Bandhu Cinema over a portion of plot No. 369 and portion of plot No. 369/511 and the same is being used by her for her personal occupation. There is a road which is in front of the said cinema house and the said road is known as Jharia Bhaga road which stands recorded in the name of District Board, Manbhum in the last Survey Records of Right and right, title and interest of District Board, Manbhum stands vested in the District Board, Dhanbad which also vested in Zila Parishad i.e. the defendant-respondent. The land in front of said cinema house is fully occupied by the metal road including footpath and no area of the said road has been left out between the said cinema house and the said road except a portion measuring an area of 1 feet x 90 feet which forms part and parcel of plot No. 369/511 exclusively belonging to the plaintiff and she has left out that portion for egress and ingress of persons visiting the said cinema house and/or shops belonging to her which has since been on rent to different persons. It is alleged that the defendant-respondent on the allegation that certain land belongs to it started demolishing the pucca house and structures and the plaintiff-appellant has not encroached upon any portion of the land of the defendant-respondent and the suit land being the portion of plot No. 369/511 belongs to her and overseer of the defend ant-respondent came to her on 30.11.1976 and threatened her that the defendant-respondent would take action to demolish her structure on the allegation that the portion of the said structure is on 1 feet x 90 feet land which is part and parcel of the road aforesaid and is not the part of plot No. 369 and she apprehends that the defendant-respondent will take action for their illegal objects of demolishing the front portion of her structure measuring 1 feet x 90 feet of plot No. 369/511 on the allegation that the same forms part and parcel of the road aforesaid. 4. The case of the defendant-respondent inter alia, is that plot Nos. 267 and 369/511 belong to the defendant-respondent and the plaintiff-appellant has no right, title and interest whatsoever in plot No. 369/511 as well as on plot No. 267 and the plaintiff-appellant has encroached upon plot No. 267 which is a public road and it is a very busy road and she cannot be allowed to encroach upon the public land causing obstruction and interference in the vehicular traffic as also to the petitioners and it is the duty of the defendant- respondent to see that no encroachment is made on the public road and it is well within its power to demolish and/or remove the obstruction over the public land. 5. 5. In view of the pleadings of the parties the learned Trial Court has framed the following issues for adjudication in this case : (i) Is the suit maintainable? (ii) Has this Court jurisdiction to try this suit? (iii) Is the suit barred under the provisions of Bihar Land Encroachment Act? (iv) Has the plaintiff cause of action? (v) Is the suit barred by principles of waiver, estoppel and acquiescence? (vi) Is the plaintiff entitled to a decree for declaration of title to the land in suit? (vii) To what other relief or reliefs, if any, is the plaintiff entitled? 6. The learned trial Court while deciding issue No. (vi) has held that the suit land shown in Schedule B of the plaint is the part and parcel of plot No. 369/511 of the plaintiff and the defendant has no right to take any action to demolish any structure over 1 feet x feet 90 i.e. "Bullrax" of the cinema hose. It has also been held that the suit land is not the part of plot No. 267. While deciding issue Nos. (ii) and (iii) it has been held that since the suit land forms part of the plaintiffs plot No. 369/511 as such Civil Court has got jurisdiction to entertain the suit and the provisions of Bihar Land Encroachment Act in the facts and circumstances of this case does not oust the jurisdiction of the Civil Court. In view of the findings aforesaid the learned trial Court has decreed the suit. 7. Aggrieved by the judgment and decree of the trial Court the defendant- respondent preferred Title Appeal No. 61 of 1978. The learned appellate Court below on re-appraisal and re-appreciation of the evidence oral and documentary on the record set aside the judgment of the trial Court and allowed the appeal as per the impugned judgment and dismissed the suit of the plaintiff-appellant. The learned appellate Court below on re-appraisal and re-appreciation of the evidence oral and documentary on the record set aside the judgment of the trial Court and allowed the appeal as per the impugned judgment and dismissed the suit of the plaintiff-appellant. The learned appellate Court below has held that the plaintiff has failed to prove her right, title and interest by any solid documentary evidence and it remains a mystery as to how she claims herself to be the owner of plot No. 369/511 and furthermore it was the duty of the plaintiff to prove that she had not encroachment over any portion of the road and encroachment of such a small area would have been proved only by the land getting measured by survey knowing Amin any expert and the plaintiff did not get her land measured by any survey trained Amin to show that the cinema house is on her own land and she had not encroached upon the road. In view of the findings aforesaid the learned appellate Court below has observed that the trial Court was not justified to decree the suit of the plaintiff for the reliefs claimed. 8. Being aggrieved by the judgment of the appellate Court below the plaintiff-appellant filed this appeal and this Court while admitting the appeal for hearing has formulated the following substantial question of law vide order dated 1.8.1990 : "As to whether in the facts and Circumstances of the case, the lower appellate Court was right in dismissing the plaintiffs suit without recording a finding as to whether the defendant has got any title over plot No. 369/511 of village Fatehpur. P.S. Jharia." 9. Assailing the impugned judgment it has been submitted by the learned counsel for the plaintiff-appellant that the learned appellate Court below has committed a manifest error in construing Ext. 3 read with Ext. 2 and has, accordingly, erred incoming to the finding that the plaintiff-appellant has no right title and interest in respect of plot No. 369/511. It has been submitted that plot No. 369/511 is adjacent west of plot No. 369 and Jharia Bhaga road bearing plot No. 267 is situated adjacent west of plot No. 369/511 and Ext. 2 and has, accordingly, erred incoming to the finding that the plaintiff-appellant has no right title and interest in respect of plot No. 369/511. It has been submitted that plot No. 369/511 is adjacent west of plot No. 369 and Jharia Bhaga road bearing plot No. 267 is situated adjacent west of plot No. 369/511 and Ext. 3 is the deed of gift in respect of plot No. 369/511 executed by Prahlad Ram Agrawal in favour of his wife Saraswati Devi on 15.5.1930, and there in recital in the said sale deed that Prahlad Ram Agrawal aforesaid had acquired the said plot by virtue of the registered sale deed bearing No. 2786 of the year 1914 executed by Bhagwan Singh and Pala Singh and the said plot stands amalgamated with plot No. 369 admittedly in possession of the plaintiff-appellant and this plaintiff is the widow of Mani Ram Agrawal, the son of Prahlad Ram Agrawal and Sarawati Devi aforesaid and they are all dead and there is structure of the plaintiff- appellate over plot No. 369 along with plot No. 369/511 and it is therefore, established by the said document that the plaintiff-appellant has right title and interest over the suit plot which is admittedly in her possession. It has further been contended that there is no chit of document brought on behalf of the defendant-respondent to show even the semblance of title of the defendant- respondent over the said suit plot and the simple averment in the written statement that the suit plot belongs to the defendant-respondent without any proof in respect thereof has no bearing at all and when the plaintiff has asserted in her plaint as well as in her evidence on oath that she has not encroached upon any inch of Jharia Bhaga road then in that case it was incumbent upon the defendant-respondent to establish the said encroachment as alleged by him. Lastly it has been contended that the plaintiff-appellant is the heir of her husband Mani Ram Agrawal, deceased who had succeeded the suit plot on the demise of his mother Sarawati Devi in whose favour the gift of 1930 stands. Lastly it has been contended that the plaintiff-appellant is the heir of her husband Mani Ram Agrawal, deceased who had succeeded the suit plot on the demise of his mother Sarawati Devi in whose favour the gift of 1930 stands. It has also been contended that the suit plot was in possession of Prahlad Ram Agrawal, her predecessor in interest since 1914 and, thereafter, in possession of his wife Saraswati Devi and, thereafter, her husband and she continued in possession over the same and a person in peaceful possession is entitled to retain his possession and law will come to the aid of a person in peaceful and settled possession by injunction even against a rightful owner from using force or taking law in his own hands and in the absence of proof of better title of the defendant-respondent, the possession or prior peaceful settled possession of the plaintiff-appellant is itself evidence of the title in view of the presumption that possession goes with the title unless rebutted, in support of his contention reliance has been placed upon the ratio of the case of Rame Gowda (D) by LRs. v. M. Varadappa Naidu (D) by LRs. and Anr., 2003 (8) Supreme 928 , the impugned judgment , therefore, suffers with illegality requiring an interference therein. 10. In spite of service of appeal notice the defendant-respondent did not appear in this appeal. 11. There is no denying the fact that the plaintiff-respondent has acquired plot No. 369 along with several other plots of village Fatehpur by virtue of the sale deed dated 19.6.1947 (Ext. 2) executed by her husband Mani Ram Agrawal in her favour. It appears from Ext. 4 the cadastral survey map of village Fatehpur that plot No. 369/511 is adjacent west of plot No. 369 and it runs from north to south and takes a turn towards east at the southern fringe of plot No. 369, Jharia Bhaga road bears plot No. 267 and it is adjacent west of plot No. 369/511. It appears from perusal of Ext. 3 that Prahlad Rai Agrawal had acquired plot No. 369/511 by virtue of the sale deed of the year 1914 executed by Bhagwan Singh and Pala Singh and the said registered deed bears No. 2786 of the year 1914 and the said fact stands recited in the registered deed of gift dated 15.5.1930 (Ext. It appears from perusal of Ext. 3 that Prahlad Rai Agrawal had acquired plot No. 369/511 by virtue of the sale deed of the year 1914 executed by Bhagwan Singh and Pala Singh and the said registered deed bears No. 2786 of the year 1914 and the said fact stands recited in the registered deed of gift dated 15.5.1930 (Ext. 3) executed by Prahlad Rai Agrawal aforesaid in favour of his wife Saraswati Devi. Mani Ram Agrawal is the son of Prahlad Rai Agrawal and Saraswati Devi and they are all dead. Plaintiff-appellant is the widow of Mani Ram Agrawal and his legal heir. Therefore, the right title and interest of the plaintiff-appellant cannot be disputed in respect of plot No. 369/511. Plot Nos. 369, 372 and 380 acquired by virtue of the sale deed dated 19.6.1947 (Ext. 2) stands amalgamated with plot No. 369/511 and admittedly there are structures including Deshbandhu Cinema House thereon in possession of the plaintiff- appellant. It is true that the boundary of plot No. 369 as disclosed in the sale deed dated 19.06.1947 (Ext. 2) indicates that there is Jharia Bhaga road in the western boundary of plot No. 369. However, this western boundary as indicated therein is a factual error and thus it appears that (Ext. 2) cannot be said to be the document of title of the plaintiff-appellant in respect of plot No. 369/511 and the learned appellate Court below stands swayed by the said factual error in coming to the finding that the plaintiff-appellant has no title over plot No. 369/511, a portion of which is the suit land. It is pertinent to mention here that the learned Court below has lost sight of the existence of Ext. 3, the deed of gift and its effect conferring valid title upon the plaintiff-appellant being the heir of Saraswati Devi, the donee and her husband Prahlad Raj Agrawal and, thereafter, on demise of her husband Mani Ram Agrawal whom she has succeeded after his death. The non-production of the survey records of right of plot No. 369/511 as well as the sale deed No. 2786 of the year 1914 by the plaintiff-appellant on the record cannot in any view of the matter be construed against her title over plot No. 369/511. The non-production of the survey records of right of plot No. 369/511 as well as the sale deed No. 2786 of the year 1914 by the plaintiff-appellant on the record cannot in any view of the matter be construed against her title over plot No. 369/511. On the other-hand there is no chit of paper brought on the record including the cadastral survey records of right by the defendant-respondent in support of his semblance of title in respect of plot No. 369/511. The mere averment in the written statement that the defendant-respondent is the owner of plot no. 369/511, unsupported by any cogent legal evidence in respect thereof is of no effect to show even a semblance of title in respect thereof in favour of the defendant-respondent. The learned appellate Court below has misdirected himself in coming to the finding that the defendant-respondent has right title and interest in the suit land in view of the fact that the documents referred to above have not been brought on the record by the plaintiff-appellant. The plaintiff-appellant is admittedly in possession of plot No. 369/511 since time immemorial. Therefore, she has possessory title for the sake of argument over the suit property and in law she is entitled to retain her possession thereof unless evicted by due process of the law. In the case of Rame Gowda (D) by LRs. (supra), the Apex Court has thus observed : "So far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully, and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law, he cannot take the law in his own hands and evict the trespasser or interfere with his possession. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law, he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injunction even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possession by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to take recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner." It has further been observed that the settled or effective possession of a person without title would entitle him to protect his possession even as against the true owner. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions. 12. In the present case the learned appellate Court below has found that the plaintiff-appellant has failed in proving his title. Nevertheless she has been found to be in settled possession of the property. The Jharia Bhaga road has footpath on the flank. There is evidence to show that the suit land is not the part and parcel of plot No. 267. The defendant-respondent did not prove the fact that the said bullraz is an encroachment upon plot No. 267. The Suit land having the dimension of 1 feet x 90 feet is east of the footpath on the flank of the said road and the bullraz is over that portion. The defendant-respondent did not prove the fact that the said bullraz is an encroachment upon plot No. 267. The Suit land having the dimension of 1 feet x 90 feet is east of the footpath on the flank of the said road and the bullraz is over that portion. The defendant-respondent has, therefore, failed in proving its title over the suit land so as to substantiate has entitlement to demolish the structure in question. It is the well recognized principle of law that it is the settled or effective possession of a person without title would entitle him to protect his possession even against the true owner, though here in this case the plaintiff-appellant has not only possession over the suit land but she has right, title and interest in respect there of being the widow of the son of Saraswati Devi, the donee aforesaid. The learned appellate Court below has committed a manifest error in the impugned judgment whereby he has allowed the appeal dismissing the suit of the plaintiff-appellant and viewed thus the impugned judgment cannot be sustained. 13. There is merit in the appeal and it succeeds. The impugned judgment of the lower appellate Court below is hereby set aside. The appeal is allowed. The judgment of the trial Court is restored and the suit of the plaintiff-appellant is decreed. However, there shall be no order as to costs.