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Nazir Mohamed Vs. J. Kamala and Ors. - (Supreme Court) (27 Aug 2020)

Presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else

MANU/SC/0619/2020

Property

Present appeals are against a common judgment dismissing the Second Appeal filed by the Appellant, but allowing the Second Appeal filed by the Respondent, and setting aside the judgment and decree of the First Appellate Court, to the extent the First Appellate Court had declined the Respondent's claim to a decree of recovery of possession of the suit premises. The High Court held that, the Respondent, being the Plaintiff in the suit was entitled to a declaration of title in respect of half portion of the suit premises, recovery of possession of the said half portion of the suit premises and also to recovery of income from the said half of the suit property owned by the Respondent and/or charges for use, enjoyment and/or occupation thereof.

A decree of possession does not automatically follow a decree of declaration of title and ownership over property. It is well settled that, where a Plaintiff wants to establish that the Defendant's original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.

The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent-Plaintiff to the suit property. The Appellant-Defendant has asserted that, the Appellant-Defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as owner from the very inception.

The High Court erred in law in proceeding to allow possession to the Respondent-Plaintiff on the ground that, the Appellant-Defendant had not taken the defence of adverse possession, ignoring the well established principle that the Plaintiff's claim to reliefs is to be decided on the strength of the Plaintiff's case and not the weakness, if any, in the opponent's case, as propounded by the Privy Council in Baba Kartar Singh v. Dayal Das.

From the pleadings filed by the Appellant-Defendant, it is patently clear that the Appellant-Defendant claimed the right of ownership of the suit property on the basis of a deed of conveyance, executed over 75 years ago. The Appellant-Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. The Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.

A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that, his claim is not barred by the laws of limitation. He must show that, he had possession before the alleged trespasser got possession. The maxim "possession follows title" is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that, possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case, it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.

The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.

When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the Code of Civil Procedure, 1908 (CPC).

The judgment and order of the High Court under appeal does not discuss or decide any question of law involved in the case, not to speak of substantial question of law. The judgment and order of the High Court under appeal is set aside and the judgment and decree of the First Appellate Court is restored. Appeals allowed.

Relevant : Baba Kartar Singh v. Dayal Das MANU/PR/0031/1939, Biswanath Ghosh v. Gobinda Ghose MANU/SC/0954/2013

Tags : TITLE   DECLARATION   ENTITLEMENT  

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