Section 110 of the Indian Evidence Act, 1872

Burden of proof as to ownership:

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

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Comments:

Principle:

Possession is a prima facie proof of ownership. It is an evidence of complete title. Section 110 has incorporated this principle. But this principle does not apply when possession is obtained by fraud or force. Mere wrongful possession is insufficient to shift the burden of proof. According to this section when a person is shown to be in possession of any property, the presumption is that he is the owner of that property. If anybody denies his ownership, burden lies on him to prove that he is not the owner of the property.

The possession of property, real or personal is presumed prima facie to be full owner of it. The policy of law is to allow a person to continue his possession until a rival claimant proves his title. Thus, the presumption under section 110 would apply only if two conditions are satisfied, viz.—(i) that the possession of the plaintiff is not wrongful, and (ii) that the title of the defendant is not proved. Example: A is in possession of a cycle. В claims the cycle as his, В has to prove that he purchased it and burden lies on B.

In a suit for possession based on title the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant. It is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.

The man in possession starts with a possession of his title and the maxim. presumitur retro, therefore applies. Where the deceased and members of his family were in possession of land prior to 28th June, 1993 under section 110, a presumption would arise that the deceased and the members of his family continued to be in possession.