Suit on Title: Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree

Saji Koduvath, Advocate, Kottayam.

Abstract

  • 1. A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary.
  • 2. In a suit on title, if the plaintiff makes a high degree of probability it will shift the onus on the defendant (R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548).
  • 3. Court is Entitled to Consider the Title set up by the Defendants also (Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577).

Court is Entitled to Consider the Title set up by the Defendants also

Supreme Court of India, in Ratnagiri Nagar Parishad v. Gangaram Narayan Ambekar, (2020) 7 SCC 275, held as under:

  • “The initial burden of proof is on the plaintiffs to substantiate his cause, if he failed to discharge the same, the weakness in the defense cannot be the basis to grant relief to the plaintiffs and burden cannot be shifted on the defendants.”

In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –

  • In a recovery on title suit, the burden is on the plaintiff to establish title.
  • Court is also entitled to consider the rival title set up by the defendants.
  • Weakness of defence to establish title, would not enable plaintiff to a decree.

The Apex Court held:

  • “The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
  • “14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”

Suit on Title & Weakness of the Defence

A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary. See:

  • Kishan Chand v. Gautam Gaur Hitkarak Sabha, Kota (Vikram Nath, Sandeep Mehta, JJ.) 2026 INSC 448 (Even assuming that the defendant has failed to conclusively establish his title, the same would not enure to the benefit of the plaintiffs.)
  • Baha Kartar Singh Bedi v. Dayal Das, AIR 1939 PC 201 (Referred to in: K. M. Paul v. K. Pradeep, ILR 2006-2 Ker 19),
  • Jagdish Narain v. Nawab Said Ahmed Khan, AIR 1946 PC 59 (Referred to in: Dinesh Jain v. Jeewanlal Lala, AIR 2013 MP 85)
  • Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 (ejectment suit must succeed on the strength of Plaintiffs’ own title)
  • Heera Devi v. Official Assignee Bombay, AIR 1958 SC 448.
  • Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR  1959 SC 31 (referred to in: Paturu Sundaraiah v. Suri Ranganayakamma, AIR 2022 AP 71),
  • Brahmanand Puri v. Nek Puri, AIR 1965 SC 1506.
  • Nagar Palika, Jind v. Jagat Singh, Advocate, (1995) 3 SCC 426.
  • Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee, 2004-7 SCC 708.
  • Yamuna Nagar Improvement Trust v. Khairati Lal, (2005) 10 SCC 30.
  • Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200),
  • Rangammal v. Kuppuswamy, (2011) 12 SCC 220
  • Union of India v. Vasavi Co-operative Housing Society Limited, (2014) 2 SCC 269,
  • Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82.
  • Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9
  • P.  Kishore Kumar Vs. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278) 

Plaintiff to Win Recovery Suit, on Strength of his Title

Following are the often cited decisions on this subject-

  • Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526,
  • Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506,
  • City Municipal Council Bhalki v. Gurappa, 2016-2  SCC 200
  • Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272
  • R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752
  • Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718

In Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718, the suit for possession instituted by the plaintiffs trust on the basis of title, was found to be devoid of merits; for, there was no reference in the registration application of the public trust under the BPT Act, 1950 or in schedule I, where to record the properties of the public trust that the suit property belonged to the trust. Our Apex Court held as under:

  • “Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See: Brahma Nand Puri v. Naki Puri, (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272).”

In City Municipal Council Bhalki v. Gurappa, 2016-2  SCC 200, it is held as under:

  • “31. It is a settled position of law that in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title. Further, not only is the onus on the plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the defendant has not been able to prove his title, as held by this Court in Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506….”

In Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, the Apex Court held as under:

  • “The plaintiff’s suit being one for ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property… …”

If plaintiff shows high degree of probability, it shifts the onus on the defendant.

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the strict principle  as to burden of proof is reduced It is held that once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus. (See: G. N.  Naidu v. Mohd.  Farook Ali Khan, 2017-2 ALT 611)

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, the law is laid down in the following terms :

  • “A fact is said to be ‘proved’ when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. …”
  • In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.
  • In the present case, the trial Court and the first appellate Court have noted that the plaintiff has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. …”.
  • The suit property, which is a shop, is situated just adjoining the property owned by the temple. It has come in the evidence that the property which is now owned by the temple was at one time owned by the forefathers of the plaintiff and they made an endowment in favour of the temple. The father of the plaintiff, and then the plaintiff, continued to be the trustees. The trouble erupted when in the late sixties the Charity Commissioner appointed other trustees and Chief Executive Officer of the trust dislodging the plaintiff from trusteeship. The plaintiff staked his claim to trusteeship of the temple submitting that the office of the trustee of the temple was hereditary and belonged to the plaintiff. The plaintiff was managing the trust property as trustee while the property adjoining to the property of the temple, i.e. the suit property, was in possession of the plaintiff as owner occupied by the tenant, the defendant No.2., inducted as such by the father of the plaintiff. At the instance of the Chief Executive Officer of the trust, the defendant No.2, during the continuance of the tenancy in favour of the plaintiff, executed a rent note in favour of the temple attorning the latter as his landlord. This the defendant no.2 could not have done in view of the rule of estoppel as contained in Section 116 of the Evidence Act. It was at the instance of the newly appointed trustees and the Chief Executive Officer who on behalf of the temple started claiming the suit property in occupation of the tenant, defendant No.2, to be trust property belonging to the temple. But for this subsequent development the title of the plaintiff to the suit property would not have been in jeopardy and there would have been no occasion to file the present suit.
  • The learned counsel for the temple, defendant-respondent No.1, faintly urged that the appellant being a trustee of the temple was trying to misappropriate the property belonging to the temple. For such an insinuation there is neither any averment in the written statement nor any evidence laid. Such a submission made during the course of hearing has been noted by us only to be summarily rejected. We have already held that the appellant is the owner of the suit property entitled to its possession and recovery of arrears of rent from the defendant No.2.
  • … A high degree of preponderance of probability proving title to the suit property was raised in favour of the appellant and the courts below rightly concluded the burden of proof raised on the plaintiff having been discharged while the onus shifting on the defendant remaining undischarged. ..”
  • (Quoted in: Anil. Rishi v. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200).

Doctrine, High Degree of Probability in Religious-Office–Claim

The aforestated strict principle as to burden of proof (as to title – burden is on the plaintiff) is definitely appropriate in case of a claim on religious office (ejecting one in office), as found in Moran Mar Basselios Catholics v. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 (Malankara Metropolitan and other trustees) and Brahma Nand Puri v. Nelci Puri, 1965 AIR SC 1506; 1965-2 SCR 233 (Mahantship).

It is held in Brahma Nand Puri v. Nelci Puri, 1965 AIR SC 1506; 1965-2 SCR 233, as under:

  • “The plaintiffs suit being one for ejectment he has to succeed or fail on the title he established and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property.”

High degree of Probability Shifts the Onus on the defendant

In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:

  • “31. The burden of proof
    • [See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]
  • to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
    • [Sec. 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.]
  • of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
    • [Sec. 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]
  • of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder  v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India v. Vasavi Cooperative Housing Society Limited, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes v. K.V.P. Shastri, (2013) 15 SCC 161.]
  • Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

Burden of Proof Loses Significance

Burden of proof loses its importance –

  • if both parties adduced evidence
  • if there is sufficient evidence on an issue.

In such a situation, it remains academic:

  • Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi, 49 IA 286 303: AIR 1922 PC 292 (referred to in Seturatnam Aiyar v. Venkatachala Gounden, (1919)   47 IA 76, and Kumbham Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278);
  • Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673,
  • Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040;
  • Mohd.  Abdullah Azam Khan Vs. Nawab Kazim Ali Khan,(1976) 3 SCC 32

Withholding Documents

In the important decision, Gopal Krishnaji Ketkar v.  Mahomed Haji Latif, AIR 1968 SC 1413, it is held as under:

  • “Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.”

In National Insurance Co. Ltd., New Delhi Vs. Jugal Kishore, 1988-1 SCC 626, Our Apex Court stated the law as under:

  • “This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.” (Quoted in: Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673)

Nemo Dat Quod Non Habet

In P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278), after pointing out that ‘the revenue records are not documents of title’, it is held as under:

  • “18. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., “no one can confer a better title than what he himself has”. In the present case, the plaintiff’s vendor having been denied the right of title in the land by the Commissioner’s order, could not have conveyed the same to her vendee.”
  • “22. Contention advanced on behalf of the plaintiff that through the record of rights the plaintiff has established his title by a preponderance of probabilities is not sustainable. As noted above, the plaintiff failed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant’s title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do.”

Revenue Records Does Not Confer Title

In Union of India v. Vasavi Co-op.  Housing Society Ltd. , AIR 2014 SC 937; 2014-2 SCC 269, it is held as under:

  • “17. This Court in several Judgments has held that the revenue records does not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 held that
    • “it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law.”
  • In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 this Court has held that “that the entries in jamabandi are not proof of title”.
  • In State of Himachal Pradesh v. Keshav Ram and others (1996) 11 SCC 257 this Court held that
    • “the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff.”

Patta As Such Does Not Confer Title

In Union of India v. Vasavi Co-op.  Housing Society Ltd. , AIR 2014 SC 937; 2014-2 SCC 269, it is continued as under:

  •  “18. The Plaintiff has also maintained the stand that their predecessor-in- interest was the Pattadar of the suit land. In a given case, the conferment of Patta as such does not confer title. Reference may be made to the judgment of this Court in Syndicate Bank v. Estate Officer & Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.
  • 20. We are of the view that even if the entries in the Record of Rights carry evidentiary value, that itself would not confer any title on the plaintiff on the suit land in question. Ext.X-1 is Classer Register of 1347 which according to the trial court, speaks of the ownership of the plaintiff’s vendor’s property. We are of the view that these entries, as such, would not confer any title. Plaintiffs have to show, independent of those entries, that the plaintiff’s predecessors had title over the property in question and it is that property which they have purchased.”

Revenue Documents alone will not make High Degree of Probability

The Supreme Court held in P.  Kishore Kumar Vs. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278) , Bela M. Trivedi and  Dipankar Datta, JJ., as under:

  • “25. Mr. S.N. Bhat placed reliance on the decision of this Court in R.V.E.  Venkatachala Gounder vs. Arulmigu Viswesaraswami V.P. Temple, (2003) 8 SCC 75,2 to contend that the plaintiff was only expected to prove his title to a high degree of probability and not beyond reasonable doubt. The principle of law argued by the learned senior counsel is not one we wish to dispute, the same having been well settled through numerous decisions of this Court. However, having led in evidence only revenue documents which are essentially fiscal in nature, we have no hesitation in holding that in the present case, the plaintiff has been unable to assert his case to a high degree of probability. It is, therefore, not enough that the plaintiff led in evidence records of rights for a number of years in an attempt to establish his title; such records would not counter the proof of occupancy rights furnished by the defendant, in a test of probative value.”

“Credible Document of Title”

In P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278), after pointing out that the ‘revenue records are not documents of title’, it is held as under:

  • “26. This Court, in Somnath Burman vs. S.P. Raju and Ors., (1969) 3 SCC 129 held that possession can be regarded as a better title against all, except the true and lawful owner. Therefore, the multitude of revenue documents put to use to argue that the plaintiff was cultivating the suit property would not adequately meet the demands of proof made by law. The only credible document of title led as evidence in the present case was in favour of the defendant’s predecessor-in-interest; hence, it must follow that it is only the defendant who can be declared the lawful owner of the ‘B’ schedule property.”

In Union of India v. Vasavi Co-operative Housing Society Limited, (2014) 2 SCC 269, it is held as under:

  • “15. It is trite law that, in a suit for declaration of title, the burden always lies on the Plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the Defendants would not be a ground to grant relief to the Plaintiff.” (Quoted in P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278)

In Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82, it is observed as follows:

  • “44. In the suit for declaration for title and possession, the Plaintiffs- Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.” (Quoted in P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278)

Petitioner to Prove claim (Lease); cannot rely Inconsistencies of Respondents

In OT Alexander v. State of Kerala, LAWS (KER) 2021-5. 23, High Court of Kerala (N. Nagaresh, J.) did not accept the argument of the petitioner in the Writ Petition, against the Government Order for resumption of the land, for the absence of materials to establish the lease of 1933 claimed by the Petitioner.  The prime contention of the petitioner was that the land was originally granted to the predecessors-in-interest of the petitioner, under Ground Rent Patta by erstwhile Collector of South Malabar District during the British regime in 1933; and that Land assigned under Ground Rent Patta could not be resumed by the Government.

The petitioner claimed that the transferees of the original leasee sold their right to a bank. The Bank (State Bank of Travancore) sold the property to a Company in 1995. The petitioner purchased the property from the Company as per the Sale Deed of the year 2004. The petitioner has been paying property tax to the Cochin Corporation. The action for resumption of land by the District Collector was on the ground that the sale deed between SBT and the Company was illegal. Pointing out that the petitioner cannot base his claim on inconsistencies of the respondents, the High Court did not accept the arguments against the resumption of land by the Collector.

Document Ex-Facie Reveals No Title – Declaration as to Invalidity Not Necessary

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024 3 KerHC 169; 2024-2 KerLT 789; 2024-4 SCR 383, held as under:

  • “If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”

By proving a deed, title of the executing person is not automatically confirmed

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.), 2024 3 KerHC 169; 2024-2 KerLT 789; 2024-4 SCR 383, also held as under:

  • “18. ….But it would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed.. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”

Transfer Ab-Initio Void, Not to Set Aside by a Suit

In Madhegowda v. Ankegowda, (2002) 1 SCC 178.it is held by our Apex Court as under

  • “25………Undoubtedly Smt Madamma, sister of the minor, is not a “guardian” as defined in Section 4(b) of the Act (Hindu Minority and Guardianship Act, 1956). Therefore, she can only be taken to be a “de facto guardian” or more appropriately “de facto manager”. To a transfer in such a case Section 11 of the Act squarely applies. Therefore, there is little scope for doubt that the transfer of the minor’s interest by a de facto guardian/manager having been made in violation of the express bar provided under the section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the de facto guardian/manager.”

Title of Plaintiff Nullity, Defendant need Not file a Suit

In Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, AIR 2004 SC 2546, the defendants contended that the plaintiff’s title, on the basis of the alleged auction sale ‘was a nullity, as it was ultra vires the legal provisions and on the ground of lack of jurisdiction, non-service of demand notice on all the heirs and co-owners’. It was contended from the part of the (original) plaintiff that the sale proceedings could be challenged only by way of a substantive suit, and that the High Court was right in characterising the challenge to the suit by the defendant as a ‘backdoor method’. The Apex Court held as under:

  • “If the title claimed by the plaintiff was a nullity and wholly void, there was no need for any of the defendants including Bajranglal to challenge it by way of a substantive suit. They could always set up nullity of title as a defence in any proceeding taken against them based upon such title. If, in fact, the sale was a nullity, it was non est in the eye of law and all that defendant had to do was point this out. (See in this connection: Ajudh Raz and Ors. v. Moti S/o Mussadi, [1991] 3 SCC 136 and the opinion of the Full Bench of the Bombay High Court in Abdulla Mian v. Government of Bombay, (1942) 44 Bom LR 577.
  • In Vidyadhar v. Manikrao, 1999-3 SCC 573, the plaintiff had filed a suit on the basis of a sale deed executed by D-2 in his favour and sought the relief of possession of the property from defendant no. 1 who was an absolute stranger to the sale deed. The question which arose was whether defendant No. l, who was in possession, could justify his possession by urging the nullity of sale transaction between the plaintiff and defendant No. 2. In these circumstances, this Court held (para 21):
    • ‘The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances.’
  • Here, the plaintiffs suit is for ejection of the defendant and for possession of the suit property. She must succeed or fail on the title that she establishes. If she cannot succeed in proving her title, the suit must fail notwithstanding that the defendant in possession may or may not have title to the property. (See in this connection: Brahma Nand Puri v. Neki Puri, [1965] 2 SCR 233 at p. 237).”

Suit on Possessory Remedy, Other side Admits Possession; Should Will be Proved

No.

Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) are attracted. Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684 considered – when a Will is ‘categorically’ and ‘clearly’ admitted by the other side, should it be proved by calling a witness of the Will under Section 68 of the Evidence Act. The Madras High Court came to the conclusion that Section 68 will not be attracted where the Will is “admitted” by the other side.

Do General Provisions of S. 58 give way to Special Provisions of S. 68

Three views are possible:

  • First: Requirement of calling at lest one witness to prove those documents that requires attestation, in spite of express admission from the opposite party as to the execution of the document in the written statement.
  • Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
  • Third: If only the Will is expressly or categorically admitted, then only there will be alleviation of burden laid down in Sec. 68.

In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.

But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.

Dominant Owner  Cannot Dispute The Title Of The Servient Owner

It is trite law that the dominant owner  cannot dispute the title of the servient owner (Reghuprasad v. M.  Raghunathan, AIR 2020 Ker 16). 

In Omana v. Reji Kurian, AIR 2022 Ker 91, it is held (K. Babu, J.) as under:

  • “19. Yet another aspect that requires consideration is that the pleadings of the defendants in the written statement go in the line, denying the title of the plaintiff over the ‘B’ schedule way. One of the fundamental ingredients in a claim of easement is the admission of the title of the servient owner by the dominant owner. On this ground alone, the claim of the defendants over plaint ‘B’ schedule property by way of easement by prescription must fail.”

Proof of Title – Preponderance of Probability Sufficient

In Kshetrimayum Ibohal Singh v. Ibemhal Devi, 2012-112 AIC 769; 2011-3 GauLD 803; 2011-6 GauLJ 629; 2012-6 GauLR 680; 2011 5 GauLT 680; 2012-4 NEJ 387, it is held as under: 525;

  • “In a civil suit, the plaintiff cannot be expected to prove his title beyond any rea­sonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged.” (relied on: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752.)

In Kshetrimayum Ibohal Singh, the Gauhati High Court relied on J. Yashoda v. K. Shobha Rani: (2007) 6 SCC 730, which held that the rule which is most universal, namely, that best evidence the nature of the case will admit shall be produced only means that, so long as the higher or su­perior evidence is within the possession of a person or may be reached by a person, that person shall give no inferior proof in relation toil.

R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: Onus Shifts

In a suit for recovery on title, where both plaintiff and defendant claim title, if plaintiff has been able to create a high degree of probability, he will Win, if the defendant fails to discharge his onus. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

  • “29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.”

Quoted in:

  • Anil. Rishi v. Gurbaksh Singh, (2006) 5 SCC 558;
  • Sebastiao Luis Fernandes v K. V. P. Shastri, 2013-15 SCC 161;
  • City Municipal. Council, Bhalki v. Gurappa, (2016) 2 SCC 200)

Referred to in:

  • Mahakali Sujatha v. Branch Manager, Future Generali India Life Insurance Company Limited, AIR 2024 SC 2019; 22024-8 SCC 712
  • Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355
  • Mohd.  Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022-11 JT 214; 2022-16 Scale 689

In Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355,it is held bu our Apex Court as under:

  • “31. The burden of proof
    • [See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]
  • to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
    • [Sec. 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.]
  • of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
    • [Sec. 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]
  • of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder  v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
  • Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

When evidence has been led by both sides, “onus” is out of place

  • “Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam vs. Union, AIR 1964 SC 880]”

Section 116 of the Evidence Act

Section 116 of the Indian Evidence Act reads as under:

  • “Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be heard to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.”

In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335: 1976 4 SCC 838, it is held as under:

  • “The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant”.

The principle behind the proposition, which asserts that the owner/landlord has the right to recover the property based on his title if the defendant-tenant raises claim of title, is founded upon the notion that a tenant is precluded from disputing the title of the landlord or owner, as laid down in Section 116 of the Evidence Act.

Bar u/S. 116: Not Extend To Challenge – Landlord Lost Tile After ‘Commencement Of The Tenancy’  

D. Satyanarayana v. P. Jagadish (A.P. Sen, B.C. Ray, JJ.), AIR 1987 SC2192, 1987 (4) SCC 424, is a leading decision on this matter.

  • (Note: ‘D. Satyanarayana v. P. Jagadish’ is said to be an exception to the general rule. See: Masonic Club v. Jamna Lodge, 2014-207 DLT 62; 2014-140 DRJ 396; L. Rs.  of Arjun Lal v. L. Rs.  of Kundan Lal, 2013 AIR(CC) 2193; 201260 RCR(Civ) 769 (Raj); M. L.  Dawar v. M. L.  Seth, 2011-125 DRJ 564 (Del); Manoharlal v. Baijnath Jalan, 2005-4 Jhk CR 58; 2005-3 Jhk LJR 474.)

The following are the facts (of D. Satyanarayana v. P. Jagadish) in a nutshell.

The owner had leased the demised premises to a tenant. The (original) tenant sub-leased it to the respondent. The head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee.  The sub-tenant atoned in favour of the original lessor and started paying monthly rent directly to the superior landlord (owner).

In this decision, it is held that the estoppel or bar under Sec. 116 of the Evidence Act operates only –

  • (i)  during the continuance of the tenancy,
  • (ii) to the challenge of the title of the landlord at the beginning of the tenancy.

In this decision, it is held as under:

  • “3. …Section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words ‘during the continuance of the tenancy’ have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy…”
  • “4. The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord…”

It was further held that since (or, after) the date of tenancy, the title of landlord came to an end; for, the head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee, and the sub-tenant atoned in favour of the original lessor. It was pointed out –

  • A tenant is not estopped from contending that the title of the lessor has “since come to an end” (or the landlord lost title after the commencement of the tenancy),

The Apex Court (in D. Satyanarayana v. P. Jagadish) quoted from Mangat Ram & Anr. v. Sardar Meharban Singh, AIR 1987 SC 1656,  (1987) 4 SCC 319, (A.P. Sen, V. Balakrishnan Eradi, JJ.) saying:

  • “Quite recently, this Court in Mangat Ram v. Sardar Meharban Singh, [1987] 1 Scale 964, to which one of us was a party, observed:
  • “The estoppel contemplated by s. 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end.”
  • See also: Fida Hussain v. Fazal Hussain & Ors., AIR (1963) MP 232,
  • K.S.M. Guruswamy Nadar v. N.G. Ranganathan, AIR (1954) Mad. 402, 
  • S.A.A. Annamalai Chettiar v. Molaiyan & Ors., AIR (1970) Mad. 396 and
  • Chidambara Vinayagar Devasthanam v. Duraiswamy, ILR (1967) 1 Mad. 624.”

D. Satyanarayanana v. P. Jagdish Distinguished

In E. Parashuraman (v.  V. Doraiswamy,  AIR 2006 SC 376; 2006-1 SCC 658, it is stated as under:

  • “18. We have carefully examined the decisions of this Court in D. Satyanarayanana vs. P. Jagdish (supra) and A.V.G.P. Chettiar and Sons and others vs. T. Palanisamy Gounder : (2002) 5 SCC 337 and we are of the view that the principles laid down therein are not applicable to the facts of this case. The exception to the rule of estoppel embodied under Section 116 of the Evidence Act arises if it is shown that since the date of the tenancy of title of the landlord came to an end, or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property, under a threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenant had come into existence between them. Such a situation has not arisen in the instant case. In this case there is no finding that the title of the landlord has come to an end. The Corporation has not established its title in any proceeding in accordance with law. In these circumstances the exception to the rule of estoppel embodied in Section 116 of the Evidence Act cannot be pleaded by the appellants.”

Sec. 116 ceases to have applicability once the tenant has been evicted

In Vashu Deo v. Balkishan, 2002-1 SCR 171, it is held that Sec. 116 ceases to have applicability once the tenant has been evicted. (It stands incongruent to the view in D. Satyanarayana v. P. Jagadish where it was held – estoppel operates even after the termination.) It is said as under:

  • “6. …Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features :
    • .(i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy;
    • (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and
    • (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant.
  • The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case… the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord’s title having been extinguished by a paramount titleholder…”

Forfeiture of tenancy under Clause (g) of Section 111 of the TP Act

In Sheela v. Firm Prahlad Rai Prem Prakash (Ruma Pal, R.C. Lahoti, JJ.), AIR 2002 SC 1264; 2002-3 SCC 375 it is held as under:

  • “In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel, so long as it binds the tenant, excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule.
  • “Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact – situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself.
  • “In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
  • 13. The law as to tenancy being determined by forfeiture by denial of the lessor s title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with Justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply (See – Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Anr. – AIR 1965 SC 1923). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord.
  • “14. Denial of landlord’s title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive Evans & Smith state in the Law of Landlord and Tenant (Fourth Edition, 1993, at p.89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or deny the landlord s title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord’s title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it, and so any breach of this condition must be clear and unambiguous. Hill & Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with “Acts which prejudice lessor s title” state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa s General Law of Landlord and Tenant (Eight Edition, para 934, at p.589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.”

‘Possession is Good Against All but the True Owner’ & Sec. 6 of the Sp. Relief Act

The principle ‘Possession is Good against all, but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73. In this decision, it was also pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished, and the possessory owner acquires an absolute title.

The Supreme Court of India, while accepting this principle in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’.

See: ‘Possessory Title’ in Indian Law

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Unknown's avatar

Published by sajikoduvath

Leave a Comment