Saji Koduvath, Advocate, Kottayam.

Inquisition.

• Whether Section 110, Indian Evidence Act follows the principle ‘Title Follows Possession’? (Section 110: When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner)
  • Note: Section 110 is pertained to ownership; and NOT, ‘title’.

• Whether Section 114 admits both ‘Title Follows Possession’ and ‘Possession Follows Title’? (Section 114: The court may ‘presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, etc.)
  • Note: The principles ‘Title Follows Possession’ and ‘Possession Follows Title’ apply only when the facts disclose no title/possession, as the case may be, in either of the disputants.

Introduction.

The legal principles, ‘Possession Follows Title’ and ‘Title Follows Possession’, are Rules of Evidence. (In grammar – ‘B follows A’ means ‘A comes before B’ or ‘A is followed by B’.) They are applied in cases where there are no sufficient and independent evidence to prove possession or title, as the case may be.

Under S. 110 Evidence Act, ownership is presumed on the proof of possession. It ‘follows from well settled principle of law that normally, unless contrary is established, title always follows possession’ (Chuharmal v.  Commissioner of Income Tax, M P, AIR  1988 SC 1384; 1988 3 SCC 588).

S. 114 Evidence Act, expressly permits the court to ‘presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case’. Therefore, by virtue of Sec. 114,

• (i) possession can be presumed on the basis of title (possession follows title), and
• (ii) title/ownership can be presumed on the basis of possession (title follows possession).

Read Blog (Cllic): POSSESSION is a Substantive Right in Indian Law

• ‘Possessory Title’ in Indian Law
• Title and Ownership in Indian Law

• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• Adverse Possession: An Evolving Concept

S. 110 Evidence Act & the Principle, ‘Title Follows Possession’

Section 110 of the Evidence Act, 1872, reads as under:

• “110. Burden of proof as to ownership.—When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

This section deals with the burden of proof as to ownership – when a question arises as to whether a person in possession of anything is the owner of such thing. There, the burden of proving that he is not the owner is on the person who avers that he is not the owner.

In State of A.P. v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319, the Apex Court held that the object of Section 110 is based on public policy. The object is to prevent persons from committing a breach of peace by taking the law into their own hands however good their title may be over the land in question. This object underlies provisions such as Section 6 of the Specific Relief Act 1963, Section 145 of the Code of Criminal Procedure 1973 and Sections 154 and 158 of the Indian Penal Code 1860.

In M.  Siddiq   v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1, it is observed as under:

•  “784. Section 110 deals with the burden of proof – Where the provision applies, the burden of proving that another person who is in possession is not the owner lies on the person who affirms against the ownership of that other person. But, for Section 110 to be attracted, there must be a question as to whether any person is the owner of anything and the ownership claimed must be that of which he is shown to be in possession. Section 110 is based on the principle that title follows possession. That is why the provision postulates that where a person is shown to be in possession, and a question arises as to whether that person is the owner, the law casts the burden of disproving ownership on the individual who affirms that the person in possession is not the owner.”
• “785. Several decisions of this Court have interpreted the provisions of Section 110. Section 110 is based on the principle that possession in and of itself may raise a presumption of title. But this applies when the facts disclose no title in either of the disputants in which case, as it is said, possession alone decides. Hence, on the other hand, it is also well-settled that the presumption cannot be arise when the facts are known.”

The Apex Court, in M.  Siddiq   v. Mahant Suresh Das, relied on Nair Service Society v. Fr. KC Alexander, AIR 1968 SC 1165, wherein it was observed that when no title in either of the disputants, ‘possession alone decides’.

S. 110 Attracted only if possession is Not ‘prima facie’ Wrongful

In Municipality Indore v. Gopalpuri, AIR 1956 MB 70, it is pointed out as under:

• “The presumption under Section 110 would apply only if the conditions are satisfied, viz., that the possession of the plaintiff is not ‘prima facie’ wrongful, and, secondly, the title of the defendant is not 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. vs. 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’.

Sec. 6 of the Specific Relief Act reads as under:

• 6. Suit by person dispossessed of immovable property.
• (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
• (2) No suit under this section shall be brought
  • (a) after the expiry of six months from the date of dispossession; or
  • (b) against the Government.
• (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
• (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:

• “17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
• 1907 AC 73 reaffirmed the principle by stating quite clearly:
  • “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
• Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”

If Title not Perfected by Adver. Posn, Can one eject a Trespasser After 6 Months

High Courts differ, as pointed out in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179.

Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner. See: Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Kanti Lal v. Smt. Shanti Devi, AIR 1997 Raj 230.

Sec. 110 is invoked on Ownership; and NOT on ‘title‘

 Section 110 of the Evidence Act, 1872, speaks of the burden of proof as to ownership (contra-distinct to title): when a question arises as to whether a person in possession of anything is the owner of such thing, the burden of proving that he is not the owner is cast on the person who avers that he is not the owner. Though it appears to be based on the principle ‘Title Follows Possession’, what is decisively articulated in this section is ‘ownership’; and not title.

M.  Siddiq  v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1, lays down (paras 784 and 785 – quoted above) the following:

• For Section 110 to be attracted, there must be a question as to ownership of anything.
• Section 110 deals with the burden of proof.
• The ‘thing’ must be in possession of one individual.
• That individual is presumed to be the owner (on the principle that ‘title follows possession’. That is, possession in and of itself may raise a presumption of title.)
• Section 110 applies when the facts disclose no title in either of the disputants in which case, possession alone decides (presumption cannot be invoked when the facts are known).
• The law casts the burden of disproving ownership on that individual in the person who affirms that the individual in possession is not the owner.

As signified in Sec. 110, Evidence Act, in law, ownership alone can be presumed; and not title. Title is the legal and authoritative expression of ownership; or, it is the legal recognition of a right. No doubt, it is true, one can acquire title by adverse possession. But, it is said to be inchoate until the such title is upheld by a competent court.

When Sec. 110 is invoked

It is held in Chief Conservator of Forests v. Collectors, AIR 2003 SC 1805, that Section 110 embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership, and that the presumption, which is rebuttable, is attracted:

• “when the possession is prima facie lawful and when the contesting party has no title“.

The Supreme Court observed further as under:

• ““Section 110 of the Evidence Act reads thus:
  • “110. Burden of proof as to ownership.-When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
• It embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.
• This Court in Nair Service Society Limited v. K.C. Alexander and Ors., A.I.R. (1968) S.C. 1165 observed,
  • “the possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known, when the facts disclose no title in either party, possession alone decides.”
• The pattedars proved their possession of the lands in question from 1312 Fasli (1902 A.D.) as pattedars. There is long and peaceful enjoyment of the lands in question but no proof of conferment of patta on the late Raja and the facts relating to acquisition of title are not known. The appellant- State could not prove its title to the lands. On these facts, the presumption under Section 110  of the Evidence Act applies and the appellants have to prove that the pattedars are not the owners. The appellants placed no evidence on record to rebut the presumption. Consequently, the pattedars, title to the land in question has to be upheld.”
• But See – Notes below under the following headings:
  • “When the principles in Sec. 110 and 114 CANNOT be invoked“
  • “Mutation will not confer ‘title’” and
  • “Revenue Records Do Not Confer Presumptive Value on Title“

This principle in Section 110 of the Evidence Act is usually adopted in cases where it is not independently possible to prove possession (i) due to the nature of the property or (ii) due to the extent of the property available (Devasia @ Kutty v. Jose, 2014-4 KLJ 41; 2014-3 KLT(SN) 50).

It is held in Nazir Mohamed v. J.  Kamala, AIR 2020 SC 4321, as under:

• “52. 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.” 

When ‘Possession Follows Title‘ invoked

In Jones v. Chopman, (1849) 2 Ex. 803: 18 LJ Ex. 456: 76 PR 794; Maule, J, expounded the doctrine ‘Possession Follows Title’ as under:

• “If there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is, which of these two is in actual possession, I answer, the person who has the title is in actual possession and the other person is a trespasser. In such a case who is in possession is to be determined by the fact of the title and having the same apparent actual possession; The question as to which of the two really is in possession is determined by the fact of the possession; following the title, that is by the law, which makes it follow the title.” (Mitra quoted it in “Law of Possession and Ownership of Property”, as pointed out in Indore Development Authority vs. Manoharlal, (2020) 8 SCC 129)

In Indore Development Authority vs. Manoharlal, (2020) 8 SCC 129, Arun Misra, J. pointed out as to possession as under:

• “247. The concept of possession is complex one. It comprises the right to possess and to exclude others, essential is animus possidendi. Possession depends upon the character of the thing which is possessed. If the land is not capable of any use, mere non-user of it does not lead to the inference that the owner is not in possession. The established principle is that the possession follows title. Possession comprises of the control over the property. The element of possession is the physical control or the power over the object and intention or will to exercise the power. Corpus and animus are both necessary and have to co-exist.”

It held further:

• “251. A person with title is considered to be in actual possession. The other person is a trespasser. The possession in law follows the right to possess as held in Kynoch Limited v. Rowlands, (1912) 1Ch 527. Ordinarily, the owner of the property is presumed to be in possession and presumption as to possession is in his favour.”

Sec. 114 Evidence Act– Title Follows Possession & Possession Follows Title

In M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1, the Apex Court quoted the following from State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 where Justice B.S. Chauhan explained as under:

• ‘21…..The said presumption is read under Section 114 of the Evidence Act and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim – possession follows title – is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another.
• Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him.
• A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/ encroachment, etc.
• Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version.
• Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession.
• Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act.’ ”

In Anathula Sudhakar  v. Buchi Reddy, AIR 2008 SC 2033, Apex Court held as under:

• “But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession.”

In Arumaraj Devadhas v. K. Sundaram Nadar, 2009-17 SCC 467, also it was held that the principle possession follows title applies in vacant land. This principle is applied in ‘open space‘ in Praprai N Kothari Vs. John Braganza, AIR 1999 SC 1666 and in Rajendar Singh Vs. Santa Singh, AIR 1973 SC 2537. In Naval Shankar Ishwarlal Dave v. State of Gujarat, AIR 1994 SC 1496,  the Apex Court observed that it was ‘settled law that in respect of open land, title follows possession’. In  Kashi Bai v. Sudha Rani Ghose, AIR 1958 SC 434, it was observed that when the land was vacant and was lying open, it was presumed to be that of the owner (possession follows title).

Possession Follows Title and Adverse Possession

It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144 that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

• “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

When the principles in Sec. 110 and 114 CANNOT be invoked

As we find in M.  Siddiq  v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1, Section 110 or the principle ‘title follows possession‘ applies when the facts disclose no title in either of the disputants in which case, possession alone decides (presumption cannot be invoked when the facts are known). But, with respect to the principle ‘possession follows title‘, as we find in Anathula Sudhakar  v. Buchi Reddy, AIR 2008 SC 2033, if only title is proved by one party, then only the principle ‘possession follows title’ comes in.

It is equally important that both these principles on presumption, ‘possession follows title’ and ‘title follows possession’, cannot be invoked in cases where:

• (i) the defendants do not claim title/possession to the suit property (Devasia @ Kutty v. Jose, 2014-4 KLJ 41; 2014-3 KLT(SN) 50).
• (ii) the facts (on title/possession) are known (M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1), or
• there is evidence of independent possession/title (Bhavnagar Municipality Vs. Union of India, AIR 1990 SC 717).

Possession is a Good Title of right Against any one who cannot Show a Better

In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:

• “9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence states:­
  • “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.
  • x x x x x In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to  restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
  • Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
• 10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
• 11. It was also observed by this Court in Nair Service Society Ltd (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”

Settled Possession and Established Possession

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

• “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

See Blog (Click): Declaration and Injunction

Nature of Property and Claim of Occupant Whether Bona Fide were Determinative Factors

In Government of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134,  the question considered was whether summary remedy for evicting a person provided for by section 6 of the Andhra Pradesh Land Encroachment Act, 1905, could be resorted to. It was pointed out

• the duration of encroachment, short or long, was not the determinative matter
• what was relevant for the decision was more the nature of the property and
• whether the claim of the occupant was bona fide.

It was also found that if there was bona fide dispute, on title between the Government and the occupant, it must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily. Duration of occupation would be relevant requiring an impartial adjudication according to the established procedure of law, if the person –

• occupied openly for an appreciable length of time and
• could be taken, prima facie, to have a bonafide claim to the property.

Possession is Heritable and Transferable

Possession by itself is a substantive right recognised by law. It is heritable and transferable. (Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186; Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864). 

Injunction is a Possessory Remedy.

Courts protect settled possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769). Injunction is a possessory remedy. (See: Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402. Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533. Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145. )

But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.

See Blog: Civil Rights and Jurisdiction of Civil Courts

Kesar Bai v. Genda Lal – HC and SC Approached in different Perspectives

Kesar Bai v. Genda Lal, 2022-10 SCC 217, arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:

• the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;
• the plaintiffs could not have been permitted to take both the pleas at the same time;
• but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.

Setting aside the High Court judgment the Apex Court held as under:

• “The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.

Should the Defendant-Rightful-Owner Approach the Court Again For Recovery?

No.

Before Kesar Bai v. Genda Lal, our Apex Court held in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) to the following effect (see ‘End Notes’ below):

• The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
• In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession
• the plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
• The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be “to file a substantive suit to get back the possession is noticed only to be rejected outright”.
• In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
• In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:
  • “In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.”

Even the Rightful Owner is NOT entitled to Eject a Trespasser, by Force

It goes without saying that the the rightful owner is not legally entitled to eject the interloper or trespasser by force, otherwise than by due process of law; especially when the trespasser is in settled possession.

In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property.  It was held as under:

• “The ultimate position, therefore, reduces itself to this:
• Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
• Yes.
• In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in Aiysumma Vs. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )

It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

Person in possession can use Reasonable Force to keep out a Trespasser

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:­ 

• “8. It is thus clear that 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.
• The law will come to the aid of a person in peaceful and settled possession by injuncting 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 possessor 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 have 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.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306)

What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:

• “9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, 2022 SCC OnLine SC 564)

No decree for recovery unless ‘present right to the possession’

While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) 2019-1 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.

See Blog: Mandatory Injunction – Law and Principles

Govt. to Prove Title, When Pattedars are in Possession – Chief Conservator of Forests v. Collectors, AIR 2003 SC 1805

It is held in Chief Conservator of Forests v. Collectors, AIR 2003 SC 1805, that Section 110 embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership, and that the presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title. The Supreme Court observed further in Chief Conservator of Forests v. Collectors, as under:

• “Section 110 of the Evidence Act reads thus:
  • “110. Burden of proof as to ownership.-When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”
• It embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title.
• This Court in Nair Service Society Limited v. K.C. Alexander and Ors., A.I.R. (1968) S.C. 1165 observed,
  • “The possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known, when the facts disclose no title in either party, possession alone decides.”
• The pattedars proved their possession of the lands in question from 1312 Fasli (1902 A.D.) as pattedars. There is long and peaceful enjoyment of the lands in question but no proof of conferment of patta on the late Raja and the facts relating to acquisition of title are not known. The appellant- State could not prove its title to the lands. On these facts, the presumption under Section 110  of the Evidence Act applies and the appellants have to prove that the pattedars are not the owners. The appellants placed no evidence on record to rebut the presumption. Consequently, the pattedars, title to the land in question has to be upheld.”

In short, in Chief Conservator of Forests v. Collectors (supra) our Apex Court decided the case against the State for the following:

• State could not prove its title to the lands;
• the respondents/pattedars were in possession, and hence presumption under Section 110  of the Evidence Act (‘Possession Follows Title’) applies; and
• therefore, the State had to prove that the pattedars are not the owners.

Chief Conservator of Forests v. Collectors – Proffers a Bad Law

It is beyond doubt that the following important and subsequent decisions took a contra-view to Chief Conservator of Forests v. Collectors (supra):

• R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203;
• Government of Kerala v. Joseph, AIR 2023 SC 3988.

In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

• “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
• The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. …”

In Government of Kerala v. Joseph, AIR 2023 SC 3988 – It was pointed out –

• “When the land subject to proceedings wherein adverse possession has been claimed, belongs to Government, the court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”

Chief Conservator of Forests v. Collectors Stands Against Several Decisions on the following Propositions

• 1. Mutation will not confer ‘title’ (see notes below)
• 2. Revenue Records Do Not Confer Presumptive Value on Title (see notes below).

The principles in Sec. 110 and 114 CANNOT be invoked –

It is held in the following decisions that the Principle ‘Possession Follows Title’ does not apply in the following situations-

• The facts (on title/possession) are known (M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1)
• There is evidence of independent possession/title (Bhavnagar Municipality v. Union of India, AIR 1990 SC 717).

As we find in M.  Siddiq  v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1, Section 110 or the principle ‘title follows possession‘ applies when the facts disclose no title in either of the disputants in which case, possession alone decides (presumption cannot be invoked when the facts are known). But, with respect to the principle ‘possession follows title‘, as we find in Anathula Sudhakar  v. Buchi Reddy, AIR 2008 SC 2033, if only title is proved by one party, then only the principle ‘possession follows title’ comes in.

It is equally important that both these principles on presumption, ‘possession follows title’ and ‘title follows possession’, cannot be invoked in cases where:

• (i) the defendants do not claim title/possession to the suit property (Devasia @ Kutty v. Jose, 2014-4 KLJ 41; 2014-3 KLT(SN) 50).
• (ii) the facts (on title/possession) are known (M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1), or
• (iii) there is evidence of independent possession/title (Bhavnagar Municipality v.. Union of India, AIR 1990 SC 717).

Mutation will not confer ‘title’

It is a settled proposition of law (i) that the mutation entry in revenue documents will not confer any right, title or interest in favour of any person and (ii) that the mutation in the revenue record is only for the fiscal purpose. After pointing out these legal propositions it is observed in Jitendra Singh v. The State of Madhya Pradesh, 2021 SCC OnLine SC 802, as under:

• “6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
• 6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”

Revenue Records Do Not Confer Presumptive Value on Title

The Supreme Court in  Smt. Bhimabai Mahadeo Kambekar v. Arthur Import and Export Company (2019) and Commissioner, Bruhath Bangalore Mahanagra Palike v. Faraulla Khan (2021)observed that mutation in revenue records will not confer or lose title (Relied on Sawarni (Smt.) v. Inder Kaur (1996) 6 SCC 223, Balwant Singh & Anr. v. Daulat Singh (dead) by L.Rs. & Ors. (1997) 7 SCC 137,  Narasamma & Ors. v. State of Karnataka & Ors. (2009) 5 SCC 591).

As pointed out above, it is observed by the Apex Court in State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 that a revenue record is not a document of title; it merely raises a presumption in regard to possession (Quoted in M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1). The argument as to ownership based upon entries in the revenue records had been negated in Prahlad Pradhan  v. Sonu Kumhar,(2019) 10 SCC 259. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. (Quoted in Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj (SC): 2021).

Read Connected Blogs:

• POSSESSION is a Substantive Right Protected in Indian Law
• ‘Possessory Title’ in Indian Law
• POSSESSION is a Substantive Right Protected in Indian Law
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Kesar Bai v. Genda Lal: Does Something Remain Untold?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• ‘Possession is Good Against All But the True Owner’
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• The Law and Principles of Mandatory Injunction
• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

• Relevant provisions of Kerala Land Reforms Act (on Purchase Certificate,  Plantation-Exemption & Ceiling Area) in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Civil Rights and Jurisdiction of Civil Courts
• Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
• Best Evidence Rule in Indian Law
• Pleadings Should be Specific; Why?
• Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
• Modes of Proof of Documents
• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, Order Without Jurisdiction and Sham Transactions
• Res Judicata and Constructive Res Judicata
• When ‘Possession Follows Title’; When ‘Title Follows Possession’?
• Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
• Can Courts Award Interest on Equitable Grounds?
• Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
• Sec. 91 CPC and Suits Against Wrongful Acts
• The Law and Principles of Mandatory Injunction
• Declaration and Injunction
• Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
• Unstamped & Unregistered Documents and Collateral Purpose
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
• Adverse Possession: An Evolving Concept

Evidence Act

• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• Sec. 65B Evidence Act Simplified
• Oral Evidence on Contents of Document, Irrelevant
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Notary-Attested Documents: Presumption, Rebuttable
• Significance of Scientific Evidence in Judicial Process
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation

Constitution

• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Judicial & Legislative Activism in India: Principles and Instances
• Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
• Article 370: Is There Little Chance for Supreme Court Interference
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
• CAA Challenge: Divergent Views
• Secularism & Freedom of Religion in Indian Panorama
• Can Legislature Overpower Court Decisions by an Enactment?

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?

Easement

• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Club/Society

• State-Interference in Affairs of Societies & Clubs
• Election & Challenge in Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Suits By or Against Societies, Clubs and Companies
• How to Sue Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
• Vesting of Property in Societies and Clubs
• Legal Personality of Trustees and Office Bearers of Societies
• Incidents of Trust in Clubs and Societies.
• Management of Societies and Clubs, And Powers of General Body and Governing Body
• Court Interference in Election Process
• Clubs and Societies, Bye Laws Fundamental
• Juristic Personality of Societies and Clubs
• Societies and Branches
• Effect of Registration of Societies and Incorporation of Clubs
• Clubs and Societies: General Features

Trusts/Religion

• Philosophy of Idol Worship
• Vesting of Property in Public Trusts
• Dedication of Property in Public Trusts
• Is an Idol a Perpetual Minor?
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Public & Private Trusts in India.
• What is Trust in Indian Law?
• Incidents of Trust in Clubs and Societies
• Vesting of Property in Trusts
• Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional.