Report No. 185

Section 110

The section deals with 'Burden of proof as to ownership'. It reads as follows:

"110. 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."

The section states that if a person is in possession and the question arises as to title, the burden to start with, will be on the person who contends that the person in possession is not the owner. In other words, possession affords prima facie proof of ownership.

There are some related aspects. Under the Limitation Act, 1963, Article 64 and 65 deal with suits for possession. Article 65 deals with the opposite situation as to how a person having title can lose it in favour of a trespasser who is in possession adversely for twelve years.

There is another aspect. If a person is in possession, be he the true owner or a trespasser, and he is dispossessed by another person, he can, without proving title seek a summary remedy for restoration of possession under Section 6 of the Specific Relief Act, 1963, if such suit is filed within six months of the dispossession.

The law is also that a person in possession can defend his possession against everybody except the real owner. If a person is dispossessed by the real owner, he may not be able to recover possession under Section 6 of the Specific Relief Act, 1963, after the period of six months has elapsed (Nair Service Society v. Alexander: AIR 1968 SC 1165. There is yet another principle in regard to vacant lands that possession is to be deemed to be with the real owner. If one trespasser is dispossessed, the first trespasser can get back possession only on the basis of his prior possession. Section 145 of the Code of Criminal Procedure is also relevant on the question of disputes as to possession.

In the 69th Report, there is some discussion of the related aspects and it has been finally stated in para 52.1 that this section does not require any change. We agree.