In Suit For Possession, Prior Possession Becomes Relevant When Both Parties Fail To Establish Title : Supreme Court

In a suit for possession, if both parties have not established title, then the party who proved prior possession will succeed, held the Supreme Court recently. Such right of the person who had prior possession will hold good against the whole world except the person who has the title over the property.In this regard, the Court applied the maxim "Possessio contra omnes valet praeter eur cui ius sit possessionis’ (he that hath possession hath right against all but him that hath the very right)”.A bench comprising Justices BR Gavai and CT Ravikumar observed :"When the facts disclose no title in either party, at the relevant time, prior possession alone decides the right to possession of land in the assumed character of owner against all the world except against the rightful owner".In this regard, reference was made to the decision in Nair Service Society Ltd v. Rev. Father K. C. Alexander & Ors AIR 1968 SC 1165, which held :"A party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that "possession was without any title."The bench also observed that in a suit for possession, the defendant's claim that a third party has title over the property is not sustainable. This plea is known as the plea of “jus tertii”, which in Latin means ‘right of a third party.’ It is a plea against a claim of interest in property, raised in defence that a third party has a better right thanthe claimant. However, in a suit against trespass, such a plea is not maintainable."....no defendant in an action of trespass can plead the ‘jus tertii’ that the right of possession outstanding in some third person", the bench observed.The bench was deciding an appeal filed by the defendants in a suit against the decree of prohibitory and mandatory injunctions passed against them with respect to certain properties.Also from the judgment - Section 52 TP Act -Alienation Of Suit Property Pendente Lite Not Invalid; But It'll Be Subject To Rights Of Litigants : Supreme CourtCase Title : Shivashankara vs HP Vedavyasa CharCitation : 2023 LiveLaw (SC) 261Code of Civil Procedure 1908 - Order XLI Rule 23 - There can be no doubt with respect to the settled position that the Court to which the case is remanded has to comply with the order of remand and acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be followed in its true spirit - Para 7Code of Civil Procedure 1908 - Order VI Rule 17 -in dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. But at the same time, we should keep reminded of the position that the same cannot be granted on the mere request through an application for amendment of the written statement, especially at the appellate stage - Para 14Transfer of Property Act 1882 - Section 52- Lis Pendens- It is a well-nigh settled position that wherever TP Act is not applicable, such principle in the said provision of the said Act, which is based on justice, equity and good conscience is applicable in a given similar circumstance, like Court sale etc-Transfer of possession pendente lite will also be transfer of property within the meaning of Section 52 and, therefore, the import of Section 52 of the TP Act is that if there is any transfer of right in immovable property during the pendency of a suit such transfer will be non est in the eye of law if it will adversely affect the interest of the other party to the suit in the property concerned. We may hasten to add that the effect of Section 52 is that the right of the successful party in the litigation in regard to that property would not be affected by the alienation, but it does not mean that as against the transferor the transaction is invalid - Para 16Possessory Title- principle of “jus tertii”- ‘right of a third party-no defendant in an action of trespass can plead the ‘jus tertii’ that the right of possession outstanding in some third person-Para 28Possessory Title - when the facts disclose no title in either party, at the relevant time, prior possession alone decides the right to possession of land in the assumed character of owner against all the world except against the rightful owner-‘Possessio contra omnes valet praeter eur cui ius sit possessionis’ (he that hath possession hath right against all but him that hath the very right)” - Para 30Code of Civil Procedure 1908 - Order XXII Rule 2 CPC - Suit can't be held to be abated in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives -In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on...

In Suit For Possession, Prior Possession Becomes Relevant When Both Parties Fail To Establish Title : Supreme Court

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