Presumption of possession over an open land always is deemed to be that of owner and not of a trespasser

The concept of possession is an abstract one. The ordinary presumption is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land which may excite the attention of the owner that he has been dispossessed. As indicated above, an owner of an open land is ordinarily presumed to be in possession of it and this presumption becomes strong in his favour when the defendant fails to establish the ground on which he claims to have come in possession.

The presumption that possession goes with the title is not limited to particular kind of cases where proof of actual possession is impossible on account of nature of the land, such as boundary land, forest land or submerged land. The presumption applies to all kinds of lands. Where plaintiff proves his title, but not any act of possession and the defendant does not prove possession except unnoticed user of small part of land, the presumption that possession follows title will come into play.

Equivalent Citation : AIR 1998 Guj 17

IN THE HIGH COURT OF GUJARAT

Second Appeal No. 137 of 1985

Decided On: 10.04.1997

Navalram Laxmidas Devmurari
Vs.
 Vijayaben Jayvantbhai Chavda

Hon'ble Judges/Coram:
J.M. Panchal, J.

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What is presumption of continuity of possession of property?

The issue that then arises is as to what is the consequence of the minor dying in such situation -- does the factum of the actual or notional possession of the estate of the legal guardian evaporate in the thin air with the fast breath of the minor? I do not think so. No such fiction can be exercised. There is a settled general rule that if a person is specifically found in possession of an estate at a prior date, there is a presumption of continuity of such possession till the contrary is established. This general rule of law is too well settled to admit of any doubt. Yet, within this jurisdiction, if a precedent was needed, it is first available in the authoritative decision of the Full Bench of this Court in Shiva Prasad Singh v. Hira Singh MANU/BH/0148/1921, and again reiterated in Ghoghar Raut v. Jagannath Prasad Singh MANU/BH/0178/1947, in the following terms : --

"The decision can only be based on the general rule of evidence in favour of presuming the continuity of things shown to exist at a prior date. It is certainly a plausible argument that if the plaintiff has shown that he was in possession in 1896, he must be presumed to have continued in possession, unless and until his dispossession is proved by the defendants. But the presumption in question is a general presumption. It would equally apply, no matter what the evidence on which the plaintiff relied to prove his possession in 1896."

15. It is somewhat plain on both authority and general principle that with regard to a legal guardian in possession of the estate of the minor, there would be a presumption of the continuity of possession after the death of the minor till it has been shown otherwise that he was dispossessed thereof.

Citation : AIR 1987 Pat 239

IN THE HIGH COURT OF PATNA
FULL BENCH

Letters Patent Appeal No. 42 of 1982

Decided On: 29.09.1986

Sudama Devi and Ors.
Vs.
Jogendra Choudhary and Ors.

Hon'ble Judges/Coram:
S.S. Sandhawalia , C.J., L.M. Sharma and S. Ali Ahmad , JJ.

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Whether court can treat suit for injunction as suit for injunction and declaration?

On the finding of facts, we do not wish to interfere. There is no reason to reverse the concurring findings. However, suffice it to state that the lower appellate court should have dismissed the suit filed by the appellants only on the ground that the appellants had failed to prove that they were in possession of the disputed lands. Under Section 38 of the Specific Relief Act, 1963 an injunction restraining disturbance of possession will not be granted in favour of the plaintiff who is not found to be in possession. In the case of a permanent injunction based on protection of possessory title in which the plaintiff alleges that he is in possession, and that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights [See: Mulla's Indian Contract and Specific Relief Acts, 12th Edn., page 2815] In the case of A.L.V.R. Ct. Veerappa Chettiar v. Arunachalam Chetti and others  AIR 1936 Madras 200, it has been held that mere fact that the question of title may have to be gone into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for injunction. There can be a suit only for an injunction. The present suit is only for permanent injunction and, therefore, the lower appellate court should have, on the facts and circumstances of this case, confined itself to its dismissal only on the ground that the appellants have failed to show that they were in possession. This has been done but the declaration that the appellants are not the owners, was not necessary.

Supreme Court of India

Ramji Rai & Another vs Jagdish Mallah (Dead) Through ... on 4 December, 2006

Bench: Arijit Pasayat, S.H. Kapadia

Citation:AIR 2007 SC 900:(2007)14 SCC200

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Whether stranger to decree who is dispossessed is entitled to make application in execution proceeding?

At this juncture, we may refer with profit to the pronouncement in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and Anr.MANU/SC/0191/1997: AIR 1997 SC 856 wherein a two-Judge Bench scanning the anatomy of the rules came to hold that:

...a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order XXI, Rule 99. Order XXI, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order XXI, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order XXI and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him.

21. The aforesaid authorities clearly spell out that the court has the authority to adjudicate all the questions pertaining to right, title or interest in the property arising between the parties. It also includes the claim of a stranger who apprehends dispossession or has already been dispossessed from the immovable property. The self-contained Code, as has been emphasised by this Court, enjoins the executing court to adjudicate the lis and the purpose is to avoid multiplicity of proceedings. It is also so because prior to 1976 amendment the grievance was required to be agitated by filing a suit but after the amendment the entire enquiry has to be conducted by the executing court. Order XXI, Rule 101 provides for the determination of necessary issues. Rule 103 clearly stipulates that when an application is adjudicated upon Under Rule 98 or Rule 100 the said order shall have the same force as if it were a decree.

 Supreme Court of India

Sameer Singh & Anr vs Abdul Rab & Ors on 14 October, 2014

Bench: Dipak Misra, V. Gopala Gowda

Citation: AIR2015SC591, 2014(6)ALD100(SC), 2015(1)ALLMR450, 

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