Supreme court: Hindu Woman Can Claim Full Ownership Of Property Under S.14(1) of Hindu Succession Act Only If She Possesses It

 Seen in the light of the ratio of the above judgments, it is clear that for establishing full ownership on the undivided joint family estate Under Section 14(1) of the Succession Act the Hindu female must not only be possessed of the property but she must have acquired the property and such acquisition must be either by way of inheritance or devise, or at a partition or "in lieu of maintenance or arrears of maintenance" or by gift or be her own skill or exertion, or by purchase or by prescription.{Para 24}

25. Even on going through the pleadings in the Revenue suit for partition filed by Plaintiff Kailash Chand, it is clear that there is not even a whisper in the plaint that Smt. Nandkanwarbai or the Plaintiff Kailash Chand himself were ever in possession of the suit property. As a matter of fact, the suit was filed by pleading that the suit property was a joint Hindu family property and Defendant-Mukat Lal(Appellant herein) had consented to give half share of the suit property to the Plaintiff Kailash Chand on his demand. This assertion was denied by Defendant-Mukat Lal.

26. In this context, when we consider the effect of the earlier civil suit instituted by Smt. Nadkanwarbai(deceased widow), it becomes clear that she was never in possession of the suit property because the civil suit was filed by her claiming the relief of title as well as possession and the same was dismissed. This finding of the civil Court was never challenged. Since, Smt. Nadkanwarbai was never in possession of the suit property, as a necessary corollary the Revenue suit for partition claiming absolute ownership Under Section 14(1) of the Hindu Succession Act could not be maintained by her adopted son, Plaintiff Kailash Chand by virtue of inheritance.

Ratio Decidendi:

For establishing full ownership on the undivided joint family estate under Section 14(1) of the Succession Act the Hindu female must not only be possessed of the property but she must have acquired the property.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6460 of 2024.

Decided On: 16.05.2024

Mukatlal Vs. Kailash Chand (D) through L.Rs. and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

 Citation: 2024 INSC 428, MANU/SC/0447/2024.

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Important highlights of Supreme Court Judgment "Just Rights for Children Alliance and Ors. vs. S. Harish and Ors."

 Ratio Decidendi:

Any act of viewing, distributing or displaying etc., of any child pornographic material by a person over the internet without any actual or physical possession or storage of such material in any device or in any form or manner would also amount to possession in terms of Section 15 of the Protection of Children from Sexual Offences Act, 2012, provided the said person exercised an invariable degree of control over such material, by virtue of the doctrine of constructive possession.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2161-2162 of 2024 (Arising out of Special Leave Petition (Crl.) Nos. 3665-3666 of 2024)

Just Rights for Children Alliance and Ors. vs. S. Harish and Ors. 

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, C.J.I. and J.B. Pardiwala, J.

Citation: 2024 INSC 716, MANU/SC/1041/2024.

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What are different Kinds of Possession of immovable property?

“Possession is nine points in law,” is a principle that highlights the crucial role possession plays in determining ownership and legal rights in property law. There are ten kinds of possession namely;

1) Actual Possession: This is when a person physically occupies and controls the property.

2) Constructive Possession: Here, possession is not physical but through legal rights. For example, a landlord has constructive possession over a property even though they may not physically occupy it.

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Whether the State can claim a right in a immovable property in the basis of gift deed if its name is not mutated in revenue record since long?

 The title of the land in suit had passed on to the State

after the donation and transfer of possession and after

construction, the hospital continued for more than

four decades before filing of the suit. The plaintiff, son

of the donor, also waited for 20 years despite admitted

knowledge of the hospital running over the land in

suit and did not take any action. {Para 26}

27. Article 65 under the Schedule to the Limitation Act

provides limitation of 12 years for filing a suit for

possession based on title. In the present case, merely

because the name of the plaintiff continued in the

revenue records (Jama Bandis), it would not confer

any title upon him. Revenue records (Jama Bandis)

are only entries for the purpose of realising tax by the

Municipal Corporations or land revenue by Gram

Sabhas. The plaintiff having failed to claim relief of

declaration, the suit itself would not be maintainable.

Further, for a suit for declaration, period of limitation

would be three years under Article 58 of the Schedule

to the Limitation Act, which in the present case was

long lost.

28. There is nothing on record available from the cross-examination of defendants 1 and 2 that the documents which they proved were either incorrect, doubtful or suspicious. The documents exhibited by the defendants could not be ignored as they were

public documents, copies of which were filed and duly

proved. Even if the deed was not placed on record but

due explanation was given, the facts of the case and

the evidence on record clearly established the case of

the defendant-appellant that the land in suit had been

donated by Sri Inder Singh, father of the plaintiff way

back in 1958. The lethargy/carelessness on the part

of the State in not getting the revenue records

corrected on the basis of the gift deed would not take

away the rights conferred on the State under the gift

deed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………OF 2024

Arising out of SLP (Civil) No.................of 2024

(@ Diary No.17885 of 2020)

THE STATE OF PUNJAB & ORS. Vs BHAGWANTPAL SINGH ALIAS BHAGWANT SINGH (DECEASED) THROUGH LRS.

Author: VIKRAM NATH, J.

Citation: 2024 INSC 518.

Dated: JULY 10, 2024.

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Whether widow will acquire ownership right over property in her possession recognizing her pre-existing right of maintenance?

 It may be noted that in the Will executed by Harinarayanji in favour of Daulalji, there was no mention of the suit property. What was stated in the Will was that whatever movable and immovable property, which belonged to Harinarayanji would be devolved upon Daulalji. It was only in the Probate proceedings filed by Daulalji in respect of the said Will, he had shown the suit property in the Schedule. It is true that the objections raised by Bhonri Devi against granting of Probate in favour of Daulalji were not accepted by the Probate Court, and the alleged Will executed by Harinarayanji in favour of Bhonri Devi was also not proved by her in the said proceedings. Nonetheless, in view of her pre-existing right to maintenance from the estate of the HUF of her husband and in view of her exclusive settled possession of the suit property prior to and after the commencement of the Act of 1956, the only conclusion which could be drawn, would be that Bhonri Devi had acquired the suit property in lieu of her pre-existing right to maintenance, and that she had held the suit property as the full owner and not limited owner by virtue of Section 14(1) of the said Act of 1956. {Para 19}

20. As stated earlier, Hindu woman's right to maintenance is a tangible right against the property which flows from the spiritual relationship between the husband and the wife. Such right was recognized and enjoined under the Shastric Hindu Law, long before the passing of the 1937 and the 1946 Acts. Where a Hindu widow is found to be in exclusive settled legal possession of the HUF property, that itself would create a presumption that such property was earmarked for realization of her pre-existing right of maintenance, more particularly when the surviving co-parcener did not earmark any alternative property for recognizing her pre-existing right of maintenance. The word "possessed by" and "acquired" used in Section 14(1) are of the widest amplitude and include the state of owning a property. It is by virtue of Section 14(1) of the Act of 1956, that the Hindu widow's limited interest gets automatically enlarged into an absolute right, when such property is possessed by her whether acquired before or after the commencement of 1956 Act in lieu of her right to maintenance.

21. In that view of the matter, we are of the opinion that the High Court had rightly held that Bhonri Devi had pre-existing right to maintenance in the suit property that had ripened into full ownership by virtue of Section 14(1) of the Act of 1956.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5894 of 2019

Decided On: 18.05.2022

Munni Devi (Dead) thr. L.Rs. and Ors. Vs. Rajendra (Dead) thr. L.Rs. and Ors.

Hon'ble Judges/Coram:

Ajay Rastogi and Bela M. Trivedi, JJ.

Author: Bela M. Trivedi, J.

Citation: MANU/SC/0665/2022.

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Supreme Court: Suit for declaration of title simpliciter is not maintainable without claiming consequential relief of possession

 In Ram Saran v. Ganga Devi [MANU/SC/0523/1972 : (1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [MANU/SC/0136/1993 : 1993 Supp (3) SCC 129] this Court dealt with a similar issue where the Plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [MANU/SC/0289/2011 : 2011:INSC:97 : (2011) 4 SCC 567).{Para 56}

 

57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.

58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-Plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.

30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs (2-Judge Bench) MANU/SC/0354/2013 : 2013:INSC:236 : (2014) 14 SCC 502, the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3854 of 2014

Decided On: 13.02.2024

Vasantha (Dead) thr. L.R. Vs. Rajalakshmi (Dead) thr. L.Rs.

Hon'ble Judges/Coram:

Hrishikesh Roy and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation:  MANU/SC/0105/2024.

Read full Judgment here: Click here.

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Whether hindu woman can claim right in immovable property U/S 14(1) of Hindu Succession Act if she was not in possession of that property?

 Section 14 subSection (1) had no application in this case. The essential ingredient of Section 14 sub Section(1) is possession over the property. Admittedly the plaintiff was never in possession of the property. The possession was always that of the defendant and therefore Section 14 subSection (1) would not be applicable. In Ram Vishal (dead) by lrs. and Ors. v.Jagan Nath & Another. reported in (2004) 9 SCC 302 the position of possession being a prerequisite to sustain a claim under subsection (1) of Section 14 of the 1956 Act was confirmed in Para 16 which is quoted below:

 ‘16. In our view, the authority in Raghubar Singh case [(1998)

6 SCC 314] can be of no assistance to the respondent.

As has been held by this Court, a preexisting right is a sine

qua non for conferment of a full ownership under Section 14 of

the Hindu Succession Act. The Hindu female must not only be

possessed of the property but she must have acquired the

property. Such acquisition must be either by way of

inheritance or devise, or at a partition or “in lieu of

maintenance or arrears of maintenance” or by gift or by

her own skill or exertion, or by purchase or by prescription…’

[Emphasis Supplied]

5. As per the law as it existed at their relevant time the

property which was an agricultural property would devolve

upon the male child and daughters would get only a

limited right to maintenance till, they were married and the

widow would be entitled to maintenance from the income

from the property till her death or remarriage. As per the

family Settlement Deed dated 12.03.1938 which was relied

upon by both the parties, the property in dispute was

specifically allotted to Sami Vaidyar and his only son

Sukumaran. Therefore, the widow of Sami Vaidyar i.e.,

Choyichi will not have any right over the property. The

findings of all the courts below were that Choyichi was

never in possession of the property and therefore she

would not get the right, as claimed by her under Section

14(1) of the Hindu Succession Act, 1956.

2023INSC774

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.254 OF 2010

M. SIVADASAN (DEAD) THROUGH LRs. & ORS Vs A. SOUDAMINI (DEAD) THROUGH LRs. & ORS.

Dated: AUGUST 28, 2023.

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Whether Will(Before Death Of Testator) Or General Power Of Attorney(GPA) Can Confer Title In Immovable Property?

 It goes without saying that the power of attorney executed by the Defendant-Appellant is of no consequence as on the strength of said power of attorney, neither sale deed has been executed nor any action pursuant thereof has been taken by the power of attorney holder which may confer title upon the Plaintiff-Respondent. Non-execution of any document by the general power of attorney holder consequent to it renders the said general power of attorney useless. {Para 12}

13. Similarly, the will dated 10.04.2002 executed by the Defendant-Appellant in favour of the Plaintiff-Respondent is meaningless as the will, if any, comes into effect only after the death of the executant and not before it. It has no force till the testator or the person making it dies. The said stage has not arrived in the present case and, therefore, even the aforesaid will in no way confers any right upon the Plaintiff-Respondent.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7527-7528 of 2012

Decided On: 02.06.2023

Ghanshyam  Vs. Yogendra Rathi

Hon'ble Judges/Coram:

Dipankar Datta and Pankaj Mithal, JJ.

Author: Pankaj Mithal, J.

Citation: MANU/SC/0642/2023.

Read full Judgment here: Click here

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Whether the court can protect the possession of a person who is claiming title to an immovable property based on an agreement of sale?

No doubt, agreement to sell is not a document of title or a deed of transfer of property by sale and as such, may not confer absolute title upon the Plaintiff-Respondent over the suit property in view of Section 54 of the Transfer of Property Act, 1882, nonetheless, the agreement to sell, the payment of entire sale consideration as mentioned in the agreement itself and corroborated by the receipt of its payment and the fact that the Plaintiff-Respondent was put in possession of the suit property in accordance with law as is also established by the possession memo on record, goes to prove that the Plaintiff-Respondent is de-facto having possessory rights over the suit property in part performance of the agreement to sell. This possessory right of the Plaintiff-Respondent is not liable to be disturbed by the transferer, i.e., the Defendant-Appellant. 

10. In the wake of the finding that the above-mentioned documents have not been fraudulently obtained or have not been manipulated, treating the said documents to be duly executed and as genuine, one thing is clear that the Plaintiff-Respondent is in a settled possession of the suit property at least in part performance of the agreement which cannot be disturbed or disputed by the transferer, i.e., the Defendant-Appellant.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 7527-7528 of 2012

Decided On: 02.06.2023

Ghanshyam  Vs. Yogendra Rathi

Hon'ble Judges/Coram:

Dipankar Datta and Pankaj Mithal, JJ.

Author: Pankaj Mithal, J.

Citation: MANU/SC/0642/2023

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Under which circumstances land acquisition will not lapse even if compensation is not paid or possession of acquired land is not taken?

 366. In view of the aforesaid discussion, we answer the questions as under:

366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.

366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided Under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.

366.3. The word "or" used in Section 24(2) between possession and compensation has to be read as "nor" or as "and". The deemed lapse of land acquisition proceedings Under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

(emphasis supplied)

366.4. The expression "paid" in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition Under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation Under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest Under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the "landowners" as on the date of notification for land acquisition Under Section 4 of the 1894 Act.

366.5. In case a person has been tendered the compensation as provided Under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed Under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount Under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed Under Section 24(2) of the 2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).

366.7. The mode of taking possession under the 1894 Act and as contemplated Under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession Under Section 16 of the 1894 Act, the land vests in State there is no divesting provided Under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse Under Section 24(2).

366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2749/2023 

Decided On: 11.04.2023

Land and Building Department through Secretary and Ors. Vs.

Attro Devi and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J

Citation: MANU/SC/0361/2023.

Read full Judgment here: Click here

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Can the previous owner of acquired land be considered a trespasser if they retain or re-take possession of the land?

 

The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by Constitution Bench of Hon'ble Supreme Court in Indore Development Authority's case (supra). It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land. Relevant paragraphs 244, 245 and 256 are extracted below:

244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.

245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.

256. Thus, it is apparent that vesting is with possession and the statute has provided Under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified Under Section 16, takes place after various steps, such as, notification Under Section 4, declaration Under Section 6, notice Under Section 9, award Under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner.

{Para 12}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2749/2023 

Decided On: 11.04.2023

Land and Building Department through Secretary and Ors. Vs.

Attro Devi and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Rajesh Bindal, JJ.

Author: Rajesh Bindal, J

Citation: MANU/SC/0361/2023,

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Can a person be convicted U/S 27 of the Drugs and Cosmetics Act if the prosecution fails to prove that the medicine in their possession was for sale?

 The possession of the drugs is not disputed in this case by either side. However, this Court in the case of Mohd. Shabir v. State of Maharashtra MANU/SC/0182/1979 : (1979) 1 SCC 568 while allowing an appeal in part and directing the release of an Appellant who had been prosecuted under the provision 18(c) of the 1940 Act, this Court observed that possession simpliciter would not itself be an offence but the prosecution had to prove the essential ingredient Under Section 27 which was that even a 'stock' of the medicine was for sale. It was observed as follows:

4. ...We, therefore, hold that before a person can be liable for prosecution or conviction Under Section 27(a)(i)(ii) read with Section 18(c) of the Act, it must be proved by the prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of Section 27 are not satisfied the plea of guilty cannot lead the Court to convict the Appellant. {Para 15}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 804 of 2023.

Decided On: 15.03.2023

 S. Athilakshmi  Vs. The State Rep. by the Drugs Inspector

Hon'ble Judges/Coram:

Krishna Murari and Sudhanshu Dhulia, JJ.

Author: Sudhanshu Dhulia, J.

Citation: MANU/SC/0239/2023

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Whether it is duty of the court to give mandatory injunction in cases of trespass?

  The entire circumstances revealed from the evidence on record unerringly point to the fact that the Appellant had encroached upon land belonging to the Respondent and without bona fides effected constructions which is verandah which is extension of residential building. The object of estoppel, as held in Madanappa's case, would be defeated if the said illegality is recognized and allowance is granted therefor. In the contextual situation, a decision of a learned Single Judge of High Court of Andhra Pradesh in N.C. Subbayya v. Pattan Abdulla Khan (1956) 69 LW (Andhra) 52 extracted in agreement in the decision by the learned Single Judge of High Court of Madras in the decision in Bodi Reddy v. Appu Goundan MANU/TN/0426/1970 : (1971) ILR 2 Madras 155, is worthy to be looked into. In the decision the learned Single Judge of the High Court of Andhra Pradesh after posing a question "has the court an absolute discretion to award damages instead of a mandatory injunction where there is a trespass by the Defendant on the Plaintiff's land?" held thus:

To say the building erected in such circumstances should not be directed to be removed and only damages could be awarded would, in my opinion, be ineffective, to sanction a condemnation of the Plaintiff's property and an appropriation of it for the Defendant's use.... To confine the relief to compensation in such a case is tantamount to allowing a trespasser to purchase another man's property against that man's will. No man should be compelled to sell his property against his will at a valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his purse and his ability to pay damages for it.

To say that a small strip of building site could thus be appropriated by a trespasser would be to admit a Rule of law which can be applied limitlessly. In cases of trespass, the Court should ordinarily grant an injunction directing the Defendant to remove the encroachment and restore possession of the vacant site to the Plaintiff. Neither serious inconvenience to the Defendant--trespasser nor the absence of serious injury to the Plaintiff is a ground for depriving the latter for his legal right to the property.

As held by the learned Single Judge we are of the considered view that in a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. In Bodi Reddy's decision (supra) the learned Judge held that in a suit for recovery of possession filed within the period of limitation provided under Limitation Act, the doctrine of laches or acquiescence has no place to defeat the right of the Plaintiff to obtain the relief on his establishing his title.  {Para 20}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6182-6183 of 2009

Decided On: 02.02.2023

Baini Prasad (D) Thr. LRs. Vs. Durga Devi

Hon'ble Judges/Coram:

B.R. Gavai and C.T. Ravikumar, JJ.

Author: C.T. Ravikumar, J.

Citation: MANU/SC/0088/2023.

Read full Judgment here: Click here

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Can the plaintiff get possession of the suit property if the defendants fail to prove their title over the suit property?

In the above factual background, for the Plaintiff to succeed, she has to establish that she has a legal title to the Schedule 'A' property, and consequently, is entitled to a decree of possession. The Defendants cannot be dispossessed unless the Plaintiff has established a better title and rights over the Schedule 'A' property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner.9 A decree of possession cannot be passed in favour of the Plaintiff on the ground that Defendant Nos. 1 to 12 have not been able to fully establish their right, title and interest in the Schedule 'A' property. The Defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession. {Para 30}

31. The burden of proof10 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 relief11. This is mandated in terms of Section 101 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 exceptions13, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.15 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.16 The weakness of the defence cannot be a justification to decree the suit.17 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 Sections 101 and 102 of the Evidence Act.18 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.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 878 of 2009

Smriti Debbarma (Dead) through Legal Representative Vs. Prabha Ranjan Debbarma and Ors.

Hon'ble Judges/Coram:

Sanjiv Khanna and J.K. Maheshwari, JJ.

Author: Sanjiv Khanna, J.

Decided On: 04.01.2023.

Citation:  MANU/SC/0010/2023

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Can the person who has retained or trespassed on land after land acquisition claim tenancy over acquired land?

In the case of Indore Development Authority vs. Manoharlal and others, reported in MANU/SC/0300/2020 : (2020) 8 SCC 129, Apex Court has observed, as under:

"it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser ensures for his benefit and on behalf of the owner. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same."

In view of aforestated observations, petitioners could not have claimed tenancy through their landlord to justify their possession. Even otherwise, the Suit No. 5204 of 1996 instituted by Mr. Ambroce Creado, against 'Airport Authority' was withdrawn by him on 29th March, 2013. Having considered the evidence, the eviction orders, passed against the petitioners being unauthorised occupants of 'Airport Premises" calls for no interference, in supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

 IN THE HIGH COURT OF BOMBAY

Interim Application Stamp No. 12671 of 2022 in Writ Petition Stamp No. 3715 of 2020, 

Decided On: 06.06.2022

Becharabhai B. Chauhan and Ors.  Vs.  Mumbai International Airport Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: MANU/MH/2095/2022

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Whether land acquisition shall be deemed to have been lapsed if authorities can not take possession of the acquired land due to pending litigation?

366.3. The word "or" used in Section 24(2) between possession and compensation has to be read as "nor" or as "and". The deemed lapse of land acquisition proceedings Under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8197 of 2022 

Decided On: 02.12.2022

 Land Acquisition Collector (South), New Delhi and Ors.Vs.  Suresh B. Kapur and Ors.

Hon'ble Judges/Coram:

M.R. Shah and M.M. Sundresh, JJ.

Author: M.R. Shah, J.

Citation: MANU/SC/1562/2022

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Can the owner of land get compensation under land acquisition if he fails to prove that he was in possession of that land?

  Considering the facts of the present case in the light of the law laid down by the Hon’ble Supreme Court in Syed Maqbool Ali (Supra), this Court is of the considered view that the present matter involves disputed questions of fact which cannot be adjudicated in a writ petition. The Petitioner claims to be the purchaser of the land in question. However, it appears that the Respondents were in possession of the land in question even before the execution of the sale deed in respect of the said land in favour of the Petitioner. There appears to be nothing on record to show that the vacant possession of the land in question was ever handed over to the Petitioner. The identity of the land in question is still under dispute and the issue as to in whose possession is the land in question is yet to be established. How, when and under what circumstances, the Respondents came into possession of the land in question is also to be ascertained. All these facts, according to this Court, have to be established by leading evidence in accordance with law. The Petitioner has to establish its right under the law to claim the substantial relief as claimed in the present Writ Petition. Merely by placing on record the Sale Deed will not absolve the Petitioner from its burden to establish its right to claim compensation in respect of the land in question when the factum of possession in favour of the Petitioners not established from the documents available on record. In view of several factual issues which still remain open for adjudication in the light of evidence, therefore, the Writ Petition is not the appropriate remedy for the Petitioner.  {Para 22}

IN THE HIGH COURT OF DELHI AT NEW DELHI

 W.P (C) No. 8312 OF 2022

CITICAP HOUSING DEVELOPMENTS LTD Vs UNION OF INDIA & ORS

CORAM:

HON’BLE MR.JUSTICE SIDDHARTH MRIDUL

HON’BLE MR. JUSTICE GAURANG KANTH

Author: GAURANG KANTH, J.

Judgment delivered on: 06 .07.2022

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Can the court give possession of suit property to the decree-holder if Plaintiff has not claimed relief of possession in the suit for specific performance of the contract?

 There was no provision in the Specific Relief Act, 1877 corresponding to Section 22 of the Act. Section 22 came to be part of the Act, in pursuance of the recommendation of Law Commission in its 9th Report submitted on 19th July, 1958.The Law Commission was chaired by Mr. M.C.Setalvad and had members including Mr. S.M.Sikri, Mr. G.S.Pathak and Mr. N.A.Palkhivala. The Law Commission had recommended as under:-

“35. It will be useful, we think to introduce a rule which has been now settled by judicial decisions, that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance even though, strictly speaking, the right to possession accrues only when specific performance is decreed (Krishnaji v. Sangappa, A.I.R. 1925 Bom. 181, Velayuda v. Kumaraswami, 52 I.C. 700 (Mad.). No doubt, it has been laid down that possession can be asked for in execution of a decree for specific performance even though possession was not claimed in the plaint, on the ground that the relief of possession is merely incidental to that of execution of a deed of conveyance (Kartik v. Dibakar, A.I.R. 1952 Cal. 362; Arjun Sing v. Sahu, A.I.R. 1950 All. 415). At the same time it has been held that the plaintiff decree-holder does not acquire title or the right to recover possession unless a saledeed is executed in execution of the decree for specific performance (Enayat Ullah v. Khalil Ullah, A.I.R. 1938 All. 432.). We think it would be simpler to make a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession (Cf. Abdul v. Abdul, 46 Mad. 148.)” {Para 12}

The argument that the plaintiff must claim possession in a suit for specific performance of a contract in all cases was also negated as Section 22 talks about the relief of possession in appropriate case. This Court addressed the history of the provision so enacted and held as under: -

“11. Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2726 OF 2022 

MANICKAM @ THANDAPANI & ANR. Vs VASANTHA

Coram:  HEMANT GUPTA; V. RAMASUBRAMANIAN, JJ.

Author: HEMANT GUPTA, J.

Dated:  APRIL 05, 2022 

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Whether any unauthorized sale made by the agent will tantamount to the Principal parting with possession of immovable property?

 The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession. {Para 14}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

Civil Appeal No. 2592 of 2022 

MRS. UMADEVI NAMBIAR Vs THAMARASSERI ROMAN CATHOLIC DIOCESE 

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Whether court can suo moto convert suit for possession of property purchased in court auction into application U/O 21, Rule 95 of CPC?

In the case of K. R. Lakshminarayana Rao Vs. New Premier Chemical Industries, (2005)9 S.C.C. 354, the plaintiff/decree holder himself purchased the property in the year 1972. Auction sale was confirmed in the year 1973. Sale certificate was issued in favour of plaintiff/respondent on 28.11.1980. The respondent did not however take any step to obtain delivery of possession of the said property within a period of one year in terms of Order 21, Rule 95 of the C.P.C.. In the year 1998, the plaintiff-respondent filed a suit praying for declaration of title and possession of the suit property, which was dismissed by the Trial Court. It is observed in para 8 that a bare perusal of provisions of Order 21, Rule 95 of C.P.C. would leave no manner of doubt and in particular having regard to the amendments carried in C.P.C. by reason of the C.P.C. Amendment Act, 1976 that the steps for obtaining delivery of property in occupancy of the judgment-debtor is required to be taken by the auction-purchaser in terms of Order 21, Rule 95, C.P.C. and, thus a separate suit to enforce such a right would, therefore, be not maintainable. In para 9 of the said case it is observed that application under Order 21, Rule 95 must be filed within the prescribed period of limitation as provided for under Article 134 of the Limitation Act, 1963. After referring to the cases of Kailash Shankar (Supra), Harnanadrai (Supra) etc. it is observed that High Court committed error in holding that even if suit was not maintainable, the Court has ample power to treat the plaint to be application filed under Order 21, Rule 95 of the C.P.C.. It was held that this cannot be done since the suit was not filed within one year. So, the judgment in the case of K.R. Lakshminarayanaya Rao (Supra) clearly shows that separate suit is not tenable. 

22. So, the above discussion clearly shows that separate suit is not tenable. Since suit was not filed within one year after sale becoming absolute, it could not be treated as application under Order 22, Rule 95 of the C.P.C.. Mainly relying on the ratio laid down in the case of K. R. Lakshminarayanaya Rao (Supra), in which property was put on auction and sold in 1972, the auction sale was confirmed in the year 1973, and the suit was filed in 1998, I hold that the present appeal must be allowed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.R. BORKAR, J.

Baburao Vishwanath Dighe Vs. Kisan Bhivaji Sanap

Second Appeal No.328 of 1990

24th November, 2009

Citation:  2010(1) ALL MR 756

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