Adverse Possession
arvind
(Querist) 09 December 2010
This query is : Resolved
We are dealing a 'suit for title declaration' on the grounds of adverse posession. The client have adverse posession for more than 25 years on suit land. However, trial court while convinced that the plaintiff have the adverse possesion, dismissed the suit on the ground that plea of advrse posession is not avalaible to Plaintiff and this is only available as defence to the defendent. Court referred the Article 65 of the Limitation Act and Judgement of Chandigarh High Court namely Bhim Singh and others Vs. Zile Singh and others, 2006(3), Civil Court Cases, 479 (PH), In this Judgement it was held that only defendent can take the plea of adverse possesion in his defence and this plea is not avaibale to plaintiff. We have filed the Appeal against this dismissal by trial court.
We need latest and specific SC judgements which supports our point that 'Adverse Posession Plea is available to anybody whether Plaintiff or defendent, who raises this plea'. If anybody have these judgemnts of Supreme Court or can tell me the source like CD etc. from where I can serach the same, it will be a big help for me.
Regards
Arvind
Khaleel Ahmed
(Expert) 09 December 2010
You are advised hereby, that all civil cases of declaration of title should be proved by the plaintiff only.The civil cordinal principle is it is the duty of plaintiff to prove his claim.There is no burden of proof on defendent, the defendant can plea that , the plaintiff is not the owner of the suit property with bald pleadings.Accordingly the suit may be dismissed.
arvind
(Querist) 11 December 2010
I Thank Mr. Khaleel and other experts for replying this query. I also agree with the opinion of Mr. Khaleel and other experts that onus of proving the title is on Plaintiff and not on defendant.
My point was little different - I request to read my query again - I am saying that we took the plea of Adverse Posession as our clients are in possession for more than 25 years and on the basis of that this suit was filed. The factual aspect of possession of pliantiffs is already proved before the court. However, the trial court dismissed the suit on the 'Question of Law' that you being Plaintiff cannot take the plea of Adverse Posession beacuse this plea is only available to defendent in his defence. He supported his view by Bhim Singh and others Vs. Zile Singh and others, 2006(3), Civil Court Cases, 479 (PH). The judgment is attached herewith for reference.
Now, we filed an appeal and we need specific SC judgements which supports our stand that 'Adverse Posession Plea is available to anybody whether Plaintiff or defendent, who raises this plea'.
R.Ramachandran
(Expert) 11 December 2010
Dear Mr. Arvind,
Please try to understand the legal position. Even when there is a Sale Deed in favour of a person, if that sale deed was unregistered, he cannot approach the court for 'declaration' on the basis of such an unregistered Sale Deed. The only thing he can do is to use such an unregistered sale deed as a defence.
If that be the case for a situation where there exists a Sale Deed (though unregistered), in your case what document you have to say that the property belongs to you, except saying that your client is in possession of the same for the past 25 years. On the basis of such a position, without any legal document in favour, one cannot approach the Court for 'declaration' of title. The Court is right in dismissing the suit.
There are no SC decisions supporting your fiew point. Very recently, the SC also commented adversely upon the benefit of 'adverse possession' itself, saying that unscrupulous and dishonest persons should not be permitted to claim adverse possession as against the honest persons. The SC has recommended to the Central Government to review the legal position and to amend the same suitably.
arvind
(Querist) 11 December 2010
Dear Mr. Ramachandran,
Thanks for your views. I have also read the latest judgement of SC on Adverse possesion you are referring herein i.e. something about forceful and unauthorised possession. Regarding Ist para of your, pl. read the SC judgement in 'Bonder Singh & Others Vs Nihal Singh & Others, 2003(1), PLJ, 366(SC). In this case, the sale deed was un-registered, still SC held that "A sale deed on the basis of which possession is taken, held invalid afterwards, still it shows that initial possession of the Plaintiff was not illegal and un-authorised." In this case SC decided in favour of plaintiff on the basis of adverse possession, which was started by un-registered sale Deed.
We are also citing this Judgment in our appeal, beacuse our clients case is same.But we are searching for some more specific Judgement on the specific Point that "Adverse posession plea is available to anybody who raise the same, whether plaintiff or defendent." This is 'question of law'. The question of fact that Plaintiff are in possession for more than 25 years has alredy been proved in trial court. All other requirement of Adverse Possession have also proved. But trial court stucked on the 'question of law' that 'Adverse Posession' is only available as a defence to defendent and not as a plea to plaintiff. Rest I cleared in my original query.
The Case of Bonder Singh is attched for your reference.
Thanks.
