Report No. 69
Under section 110, when a person is in possession of property, the burden of proving that he is not the owner lies on the person so asserting. Possession affords prima facie presumption of ownership for men generally own what they possess. To put the matter in a different form, the law leans in favour of the legality of an act; and if a person is in possession, it is presumed that the possession is lawful; in other words, the person in possession is also presumed to have a title to do so. The juristic interest of possession is very vast. But we are concerned mainly with possession as establishing a link with ownership. It is therefore proposed to discuss in brief some aspects thereof, though the discussion does not point to any need for amendment of the section.
II. Various Aspects of Possession
52.2. Possession as evidence.-
Section 110 gives effect to a well-known principle of law, common to all systems of jurisprudence, that possession is prima facie evidence of title.1 But possession has several other aspects, which may be briefly dealt with.
1. Luchho v. Harhai, 4890 ILR 12 All 46 (49) (Mahmood, J.).
52.3. Possession as a root of title.-
Possession may itself become a root of title1 when it has been retained over the statutory period of twelve years-what is known as adverse possession. This is governed by the Limitation Act, 1963.
1. Munnalal v. Kashibai, 2 1946 MLJ 453 PC.
52.4. Possession as a foundation of right to recover under statutory provisions.-
Then, under certain statutory provisions1, possession, even though its duration is not for the specific period of twelve years, is itself the foundation of a right to recover possession, unless the dispossession was in the ordinary course of law. Thus, under the Specific Relief Act,2 if any person is dispossessed of immovable property without his consent and otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof notwithstanding any other title that may be set up in such a suit. In such a suit-as is clear from the terms of the section-title is not in issue, while possession is a fact in issue.
1. Section 6, Specific Relief Act, 1963.
2. Section 6, Specific Relief Act, 1963.
52.5. Protection of possession in Roman law.-
Implied in the absolute conception of ownership is a sharp distinction between ownership and possession. The Roman Law did not protect possession as such, but one of the most important parts of the praetorian system was constituted by the "interdicta" (special types of remedy), which protected an existing possession irrespective of its rightfulness, i.e. anyone wishing to interfere with it must bring an action and prove his title. If he interfered on his own authority, the praetor would see that the original state of affairs was restored.1
1. H.F. Jollowaics, in Encyclopaedia Britannica under Roman La.- Possession, 452, also Bond Possession in Roman Law, 23 LQR 259.
52.6. It would appear that the proposition that a suit should be allowed on the basis of mere possession was also recognised in Roman Dutch law.1 The remedies in the Roman Dutch law were somewhat more complicated, the principal remedy being available to persons who had enjoyed quiet and undisturbed possession for more than a year and a day and were-
(i) dispossessed by force, or
(ii) lost their possession.
In an appeal from Ceylon,2 the Privy Council reversing a decision of the Supreme Court of Ceylon held as follows:
"If A enters on land possessed by B, and neither A nor B asserts that the land belongs to him by an investitive fact, there is nothing unreasonable in saying that B should be protected in his possession against A. To use the expression of Paul as between A and B, B has the better right to possession (D. 43.17.2). In a controversy between them, it is immaterial that B does not claim to have any right of property founded on any investitive fact; for A is in the same position."
1. (a) Price The Possessory Remedies in Roman Dutch Law;
(b) Lee Introduction to Roman Law, 3rd Edn., Book II, Chapter V., p. 158.
2. Abdul Aziz v. Abdul Rehman, 1911 AC 746 (PC).
52.7. Possession as an interest entitled to protection in itself.-
Apart from statutory provisions like section 6, Specific Relief Act, mentioned above, a person in possession of land without title has, according to the majority view, an interest in the property which is heritable and good against all the world except the true owner-an interest which, unless and until the true owner interferes, is capable of being disposed of by deed or will or by execution-sale, just in the same as it could be dealt with if the title were unimpeachable.1 Although decisions on the subject are not unanimous, this is the usually accepted view.
1. Gobind v. Mohan, 1901 ILR 24 All 157 (159); following Asher v. Whitlock, 1965 LR Iq B 1, and Sunder v. Parhati, 20 WR CR 114 (PC).
52.8. Possession as evidence.-
In the cases so far mentioned, possession has more than evidentiary value. In the case under section 110, it has an evidentiary value, and creates a presumption. Even apart from section 110, perhaps, possession would have constituted evidence of title, but section 110 not only places the matter beyond doubt, but also goes further and creates a presumption. This aspect is important when there is a suit on title. 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 matter provided by the Code of Civil Procedure, 1908. This is a suit on the basis of title-as is clear from the word "entitled". In such a suit, possession is not a fact in issue; the fact in issue is title, but possession creates a presumption by virtue of section 110 of the Evidence Act, and would, therefore, be a relevant fact. Thus, possession has several aspects.
(i) If it has lasted for the statutory period (twelve years) and is adverse, it becomes a source of title.
(ii) If it has not lasted for the statutory period (twelve years), it still can confer a cause of action in a suit under section 6, Specific Relief Act 1963. Such a cause of action is valid even against the true owner who dispossesses the occupant otherwise than in the ordinary course of law.
(iii) If it has not lasted for the statutory period (twelve years) and the suit is not under section 6 of the Specific Relief Act, even then, it can be defended against all except the true owner-according to the view of the majority of the High Courts.
(iv) Even in other cases, it is evidence of title under section 110, Evidence Act.
III. Suit Based on Possession
52.9. Whether possession can be made the basis of suit for title.-
The question has been often discussed whether possession itself (not being possession for the statutory period so as to amount to adverse possession) confers a good title where the suit is not under section 6 of the Specific Relief Act, 1963. This is the third aspect of possession mentioned above. For the present purpose, it is unnecessary to consider this question, which is not an easy one to answer.1-2 It is enough to state that there are decisions holding that a possession on the part of one party which is not shown to have commenced in wrong, can only be disturbed by distinct proof of superior title in another party. If, as against the possession of the defendant, the plaintiff can show a prior possession on his part and the circumstances are such that the title of the plaintiff can be inferred by invoking section 110, the plaintiff is entitled to a decree for ejectment unless the defendant can show a better title.
1. Ismail v. Mohammed Ghose, 1893 ILR 20 Cal 834 (PC).
2. Armugham Chetty v. Periyar, 25 WR 81 (PC).
52.10. It has been held by several High Courts that a person in peaceful possession can defend it against a person who cannot show a better title. This includes Allahabad,1 Bombay,2 Madras,3 Mysore4 and Patna5-to mention a few In some of the decisions, section 110 is relied,6 upon while in others, the decision is based merely on previous possession.7
The preponderance of judicial authority is thus in favour of the view that apart from section 6 of the Specific Relief Act, a possessory title can be asserted in the ordinary way, at least as against a trespasser. But the Calcutta view8 is different.
1. Ramdayal v. Sarswati, AIR 1927 All 526.
2. Krishna Rao v. Vasudev, ILR 8 Born 371.
3. (a) Karuppan v. Sunder Raj, AIR 1940 Mad 71;
(b) Ponnuswami v. Pappammal, AIR 1958 Mad 497 (reviews Madras cases).
4. Inamasi v. Kalyan Rao, AIR 1961 Mys 80.
5. Lilku v. Amar, AIR 1936 Pat 602 (603).
6. (a) Sahodra Kaur v. Gobardhan, AIR 1917 Pat 546. (b) Bodha Ganderi v. Ashloke Singh, AIR 1927 Pat 1.
7. Ranjit Singh v. fohri Singh, AIR 1929 Pat 60.
8. Kiran Chandra v. Prasanna, AIR 1934, Cal 561: 38 CWR 435 (reviews cases); one of the earliest Calcutta cases in Nisa Chand v. Kanchiram, 1890 ILR 17 Cla 256.
52.11. This discussion of the various aspects of possession was needed in order to distinguish between cases where possession is itself a fact in issue, and cases where it is only a relevant fact. We have no further comments on the section, and we do not recommend any change therein.