The Supreme Court has observed that the presumption based on the maxim 'possession follows title' that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.
A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation, the bench comprising Justices Navin Sinha and Indira Banerjee said.
In this case, plaintiff filed a suit seeking declaration of title to the suit property and recovery of possession of the suit property from the Defendant. The Trial Court dismissed the suit. The First Appellate Court allowed the plaintiff's appeal and held that being the owner of a portion of the said premises, he was entitled to declaration of title in respect of the said portion of the suit property owned by him, but not to recovery of possession, since the defendant had been enjoying the suit property for a long time. Allowing the second appeal filed by the Plaintiff, the High Court held that the Plaintiff was entitled to recovery of half of the plaint scheduled property, after identifying the same with the help of an Advocate Commissioner, at the time of the execution of the decree.
The Apex court, while considering the appeal filed by the defendant, noted that the High Court had proceeding to allow possession to the Plaintiff on the ground that the Defendant had not taken the defence of adverse possession. It said that the Plaintiff's claim to reliefs is to be decided on the strength of the Plaintiff's case and not the weakness, if any, in the opponent's case, [Baba Kartar Singh v. Dayal Das AIR 1939 PC 201]. The court, in this regard, said:
In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words. It is, however not necessary for this Court to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession or not.
Explaining the maxim 'Possession follows title', the bench observed that the same is is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation. It observed:
A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation. He must show that he had possession before the alleged trespasser got possession. . The maxim "possession follows title" is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.
The bench also noted that the suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. It observed:
"Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence."
Referring to Articles 64 and 65 of the Limitation Act, 1963, the bench, while allowing the appeal, observed:
In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.
Nazir Mohamed vs. J. Kamala
CIVIL APPEAL NOS. 2843-2844 OF 2010
Justices Navin Sinha and Indira Banerjee
K. K. MANI, S. THANANJAYAN