Recovery of Specific Immovable Property – Section 5 | Specific Relief Act

Section 5 of the Specific Relief Act, 1963 Provides that:

A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Proce­dure, 1908 (5 of 1908).

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1. Adverse Possession:

Adverse possession means a hostile asser­tion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirma­tively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to be animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. Where pos­session could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title.

One who holds possession on behalf of another does not by mere denial of that other’s title make his possession adverse to as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.

As regards adverse possession, it was not disputed even by the trial Court that the appellant entered into possession over the 1 and in dispute under a licence from the respondent for purposes of brick-kiln. The posses­sion thus initially being permissive, the burden was heavy on the appellant to establish that it became adverse.

A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.

Article 65 contemplates a suit for possession of property where the defendant might be in adverse possession of it as against the plaintiff. The purchaser of .a coparcener’s undivided interest in the joint-family property is not entitled to possession of what he has purchased. His only right is do sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased.

His right to possession “would date from the pe­riod when a specific allotment was made in his favour”. Such a suit by such an auction-purchaser does not attract the applicability of Article 65. The defendants-coparceners in such a case cannot claim adverse possession of the properties as against the plaintiff as possession can be adverse against a person only when he was entitled to possession.

The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner’s title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipu­lating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time.

In the latter case the principle of estoppel applies estopling the trans­feree from contending that his possession, while the contract remained executory in stage, was in his own right an adversely against the transferor. Adverse possession implied that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.

When no period of limitation is fixed for filing a suit for partition by co- bhumidhar against his other co-bhumidhars in respect of a joint holding, the question of the other co-bhumidhar acquiring his title to such holding by adverse possession for over 12 years can never arise. If that be so, such plea of perfection of title by adverse possession of a holding by co-bhumidhar against his other co-bhumidhar as defence in the latter’s suit for partition can be of no legal consequence. In the said view of the matter, Supreme Court agree with the Single Judge of the High Court who held that the expla­nation to sub-section (1) of Section 186, Delhi Land Reforms Act came in the way of defendant-1 in raising the issue of his title to the holding said to have been acquired by adverse possession and getting it referred by the Revenue Court to Civil Court to decision.

2. Applicability of:

The maxim “possession follows title” has no appli­cation at all. The plaintiff claims title on the strength of a set of documents. The contesting defendants also claim title on the strength of Ext. B-1. Alter­natively, they would contend that if at all the plaintiff had title that was lost by adverse possession and limitation. In cases like this, where the property is only a small parcel of land cultivated and enjoyed, the presumption that “possession follows title” has no bearing. Both the parties have adduced evidence to prove their respective possession.

The lower appellate Court instead of resting its finding on the maxim “possession follows title” should have reappraised the entire evidence on record and reached its conclusion. As many as seven witnesses on the side of the plaintiff, and five witnesses on the side of the defendants have been examined to prove the respective claim of possession, in addition to that, on the side of the defendants, there is evidence of mutation in their favour and payment of land revenue etc.

There is no discussion of evidence and the decision is based solely on the presumption without considering the relevant evidence on the point. That finding and the consequential decree based on that finding cannot at all be sustained. Since the first appellate Court has failed to exercise its jurisdiction in not reappraising the evidence and reaching its conclusions based on the evidence, the matter has to go back for fresh disposal to that Court.

3. Attempt at concealment:

It was then observed by the High Court that mere sporadic acts of possession exercised from time to time would not be sufficient for the acquisition of title by adverse possession. As dis­cussed above, the High Court has not at all cared even to go through the evidence regarding the nature of the acts said to have been committed by the appellant nor to find out whether they were merely sporadic or inciden­tal.

Another reason given by the High Court was that the adverse posses­sion should have been effective and adequate in continuity and in publicity. Here, the High Court has gone wrong on a point of law. All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on, where an ouster of title is pleaded but that is not the case here.

4. Based on possession:

Article 64 enables a suit within 12 years from dispossession, for possession of immovable property based on pos­session and not on title, when the plaintiff, while in possession of the prop­erty, has been dispossession, Article 65 is for possession of immovable property or any interest therein based on title.

5. Burden of proof:

On aspects, of burden of proof of benami trans­actions the Supreme Court laid down as follows:

“The principle governing the determination of the question whether transfer is a benami transaction or not may be summed up thus, (1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it ‘з such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary, (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the ques­tion as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc.”

One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title cannot divest another of that title by pre­tending that he had no title at all. Mutation in the name of the elder brother of the family for the collection of the rent revenue does not prove hostile act against the other.

The right of the plaintiff to file suit for partition had arisen after the Act has come into force and regrant was made by the Col­lector under Sub-section (1) of Section 5 of the Maharashtra Revenue Patels (Abolition of Officers) Act, 1962. The defendant, therefore, must plead and prove that after regrant, he asserted his own exclusive right, title and inter­est to the plaint schedule property to the knowledge of the plaintiff and he remain in continuous possession and enjoyment of the property in asser­tion of that hostile title during the entire statutory period of 12 years with­out any let and hindrance and the plaintiff stood thereby.

6. Cause of action:

The substance of the matter is that time runs when the cause of action accrues as and a cause of action accrues when there is, in existence, a person who can sue and another when can be sued… The cause of action arises when and only when the affireved party has the right to apply to the proper Tribunal for relief. The statute (of limita­tion) does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding rem­edy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result.

7. Claim for:

Written agreement has to precede the putting of the proposed vendee in possession of the property and in that case, ‘B’ was never put in possession of the property in pursuance of the written agree­ment arrived at between the parties and, therefore, held that the person who has not been put in possession by written agreement, cannot claim protection of Section 53-A of the Transfer of Property Act.

8. Claim of:

Possession by Government or the military authorities of immovable property under rule 75-A of the Defence of India rules 1939 cannot be said to be in the character of an agent or by virtue of any implied permission from the true owner or occupier. Section 2 of the Act of 1939 under which rules were made and in particular Clause (XXIV) of sub-section (2) of that section empowered to authorities mentioned to make orders providing for the requisitioning of any property, movable or immovable, including the taking possession thereof and the issue of any orders in respect thereof. Section 19 (1) of the act only enjoined upon the Government to pay compensation in every case of such requisition and under Section 19-B (1) Government was under an obligation, whenever any property req­uisitioned under any rule was to be released there from, to make such en­quiry, if any, as was considered necessary and specify by order in writing the person to whom possession was to be given.

Sub-section (2) of this section clearly shows that delivery of possession of the property to the person specified in an order under subsection (1) was to operate as full discharge to the Government from all liabilities in respect of the property, but was not to prejudice any rights in respect thereof which any other per­son might be entitled by due process of law to enforce against the person to whom possession of the property was given. Rule 75-A enabled the Central Government or the Provincial Government to requisition any property, mov­able or immovable; subject to certain exceptions mentioned therein.

The net result of the Act the Rules and the effect of order of requisition and relinquishment of possession and/or payment of compensation must be taken to be that possession was taken by virtue of the powers under the Act and the rules irrespective of any consideration as to the rights of the true owner or the occupier who could only make a claim to compensation. It is further clear that even if possession was taken from A but was made over to Б after relinquishment. A could have no cause of action against Government if relinquishment was in terms of Clause (2) of Section 19-B (1).

In other words possession of Government was neither by permission nor in the character of an agent. If possession under the requisition had been taken from a trespasser but had been restored to the lawful owner after the end of the period of requisition, the trespasser could contend that he was wrongfully deprived of possession or that the period of Government’s occupation should be added to the period of his preceding trespass to enable him to claim a prescriptive right by adverse possession.

Possession, which is claimed to be adverse in respect of a mortgaged property, cannot affect the right of a prior mortgagee to bring the properties to sale, and adverse possession against the purchaser under that sale can­not commence prior to the date of the sale.

9. Claim of compensation:

It is no doubt true that under the law every co-owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to other co-owners who have not chosen to enjoy the property. It is also true that liability to pay compensation arises against a co-owner who deliberately excludes the other co-owners from the enjoyment of the property.

It does not, however, follow that the liability to pay compensation arises only in such a case and no other Co-owners are legally competent to come to a any kind of arrange­ment for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property.

There is no principle of law which would exclude them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co-owners compensation. No authority was cited by learned Counsel in support of his contention that ouster of a co-owner is a sine qua non for enabling him to claim compensation from the co-owner who is in occupation and enjoyment of common property. Therefore, the contention was rejected.

10. Co-owners:

In order to prove adverse possession as between co­-owners there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other.

11. Effective possession:

Though on a first reading of the High Court judgment calling for a finding it does look as if the High Court was reversing the finding of fact as to possession when it called for a further finding on the question, a closer examination of its judgment calling for a finding along-with the findings by the Munsif and the Subordinate Judge on the crucial question involved in this case shows that it held that there was no finding by the Subordinate Judge on that crucial question, though the trial Court had given a finding in favour of the first respondent in that respect.

As both parties were relying on possessory title, it was necessary that they should prove effective possession over the property in order to succeed on the basis of possessory title. By effective possession we mean either actual possession or possession through a tenant who must have paid rent volun­tarily or under a decree to the person claiming possessory title.

12. Enforcement of:

On the express language of Section 4 (1) of Benami Transactions (Prohibition) Act, 1988 any right of hearing if the real owner in respect of any property held benami would be not enforceable once Section 4(1) operated even if such transaction had been entered into prior to 19.5.1988 and no suit could be filed on the basis of such plea after 19.5.1988.

13. Gifted property:

Once partition stood conceded and disputed prop­erty has fallen to the share of the person showing him to be lunatic, and the plea of his being a lunatic was rejected, the appellant has no stake left to pursue the appeal. Property in dispute has already been gifted and then sold to plaintiff-respondent. Therefore, claim of plaintiff-respondent for pos­session was legitimate in facts and circumstances.

14. Profit-a-prendre in gross:

On aspects of profit-a-prendre in gross it has been held by Supreme Court as follows:

“A profit-a-prendre in gross is a right exercisable by indeterminate body of persons to take something from the land of others but not for the more beneficial enjoyment of a dominant tenement is not an easement within the meaning of the Easements Act To the claim of such a right the Easements Act has no application. Section 2, of the Easements Act expressly provides that nothing in the Act contained shall be deemed to affect, inter alia to derogate from any customary or other right (not being a Licence) in or over immovable property which the Government the public or any person may possess irre­spective of other immovable property. A claim in the nature of a profit-a-prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfied the tests of valid custom.”

15. Interference with:

Where in title suit finding reached by the trial Court and confirmed by the appellate Court as a final Court of fact that the plaintiffs failed to establish their title to the suit premises was based on relevant evidence, High Court refused to interfere with concurrent findings.

16. Interruption of:

A receiver is an officer of Court and is not a par­ticular agent of any party to the suit, notwithstanding that in law possession is ultimately treated as possession of the successful party on the termina­tion of the suit. To treat such receiver as plaintiffs agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong­doing to the Court and its officers.

The doctrine of receiver’s possession being that of the successful party cannot be pushed to the extent of en­abling a person who was initially out of possession to claim the taking on off receiver’s possession to his subsequent adverse possession.

The posi­tion may conceivably be different where the defendant in the suit was pre­viously in adverse possession against the real owner and the receiver has taken possession from his and restores it back to him on the successful termination of the suit in his favour. In such a case the question that would arise would be a discontinuance or abandonment of possession or inter­ruption of the adverse possession.

17. Jurisdiction of Court:

On aspects of jurisdiction of Appellate Court if has been observed by Supreme Court as follows:

“The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evi­dence adduced in the case. In such cases, the Appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies, on fact, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the party on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact.

18. Maintainability of:

A person may be of a weak intellect, incapable of managing his affairs, but that perse would not make him a lunatic. Once partition stands conceded and the property in dispute has fallen to the share of the brother of the appellant and the plea of his being a lunatic rejected, the appellant has to leave to pursue the appeal. The claim of the plaintiff-respondent for possession, thus, was legitimate in the facts and circumstances.

In a suit for possession based on registered lease deed even if there is no prayer for declaration that the lease deed is invalid and or void, the suit would still be maintainable as the necessary averments are there in the plaint and no prejudice has been caused to the other party.

Normally, suit for possession is not maintainable in absence of prayer for declaration of title, but if averments made in plaint are sufficient and Courts below have framed issues on validity of lease etc. and no prejudice is caused to parties, relief for possession can be given.

19. Necessity of:

If Section 9 of the Specific Relief Act is utilised, 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, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one.

Where the appellant-plaintiff had proved her dispossession and title it was not necessary for the High Court to go into the question to ascertaining the date of dispossession.

20. Permissible character:

It is an acknowledgment and recognition of the title of the vendor which excludes the theory of adverse possession. The well settled rule of law is that if a person is in actual possession and has a right do possession under a title involving a due recognition of the owner’s title his possession will not be regarded as adverse in law, even through he claims under another title having regard to the well-recognised policy of law that possession is never considered adverse if it is referable to a lawful title.

The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in pos­session of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor, in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies stopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor.

Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be ad­verse.

21. Pleadings and proof:

It is well settled that where one co-heir pleads adverse possession against another co-heir then it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. The possession of one co-heir is considered in law, as pos­session of all the co-heirs. The co-heir in possession cannot render his possession adverse to the co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title.

Thus it is a settled rule of law as between co-heirs there must be evidence of open ascertain of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to construe ouster. Thus in order to make out a case of ouster against. Fathima Bee or the plaintiffs, it was necessary for the defendants to plead that they had asserted hostile title coupled with exclusive possession and enjoyment to the knowledge of Fathima Bee. The written statement filed by the defen­dants in the present case is totally lacking in the above particulars and thus apart from the want of evidence, there is no proper pleading of ouster in the present case.

22. Possession of co-sharer:

Once it is held that the possession of co-sharer has become adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse possession. He must actually and effec­tively break up the exclusive possession of his co-sharer by re-entry upon the property or by resuming possession in such manner as it is possible to do. It may also check the running of time if the co-sharer, who is in exclu­sive possession, acknowledges the title of his co-owner or discontinues his exclusive possession of the property.

23. Presumption of title:

Possession may prima facie raise a presump­tion of title which 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.

24. Prohibition against:

The duplication of remedies was however, avoided in the English and the Indian Laws by the operation of the following three rules:

(1) Prior possession is prima facie proof of title. In a suit for possession based on title, the plaintiff need do nothing more than prove that he had an older possession than that of the defendant. The law will then presume from this prior possession a better title in the plaintiff according to the maxim qui prior est tempore potior est jure, (compare Section 1 10 of the Evidence Act).

(2) A defendant is always at liberty to rebut this presumption by proving that the better title Is in himself, and

(3) A defendant is not allowed to set up the defence of jus tertii, as it is called; that is to say, he will not be heard to allege, as against the plaintiffs claim, that neither the plaintiff nor the defendant, but some third person, is the true owner. The principle is:

“Let every man come and defend his own title. As between A and В the right of С is irrelevant.”

25. Proof of:

It is well settled that in order to establish adverse pos­session of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the prop­erties. Ouster of the non-possessing co-heir by the co-heir-in-possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title.

26. Proof of ouster:

To constitute adverse possession, the ouster has to be clearly established in the case of co-sharers and there must be evi­dence of open assertion of a hostile title with exclusive possession an en­joyment.

27. Suit for Possession:

Since the suit is for possession based on title to the suit property and the defendant had denied title of the plaintiff it is necessary for the Court to give a finding on title of the plaintiff even if the defendants in possession had not pleaded adverse possession.

28. Symbolical Possession:

Question of adverse possession is one of fact. If the person against whom adverse possession is set up, shows that he had, in fact, obtained possession, whether lawfully or not, that would interrupt any possession held adversely against him. The question is whether there was in fact, an interruption of the adverse possession and not whether that interruption was justifiable in law. Under the order for delivery of symbolical possession, whether it was legal or otherwise the symbolical possession interrupts adverse possession of the trespasser.

29. Termination of licence:

Supreme Court has heard the Counsel on behalf of the appellant and after hearing him and perusing the judgment of the High Court. Supreme Court find ourselves wholly in agreement with the view taken by the High Court that mere termination of the licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence.

It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after termination his license but that by itself cannot enable the licensee to claim title by adverse possession.

There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. Here in the present case there is nothing to show that at any time after termination of his licence by Dr. Rama Shanker or by the first respon­dent the appellant asserted hostile title in himself.

The High Court was, therefore, right in taking the view that the appellant had not established any title by adverse possession and in that view of the matter, the suit of the first respondent for recovery of possession of the premises from the appel­lant was not barred under Article 65 which is the only Article of the Limita­tion Act, 1963 applicable in the present case. Supreme Court accordingly confirms the judgment of the High Court and dismisses the appeal.