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The Presumption 'Possession Follows Title' Arises Only Where There Is No Definite Proof Of Possession By Anyone Else

In Nazir Mohamed vs J. Kamala And Ors., appeal was filed before the Supreme Court against the judgment of the High Court on a second appeal filed before it.

Disagreeing with the decision of the High Court, the Supreme Court held that the High Court has erred in its conclusion that there was contradiction in the findings of the First Appellate Court, in that the First Appellate Court had declined the Respondent Plaintiff the relief of delivery of possession of the suit property but had granted the Respondent Plaintiff mesne profits for three years, prior to the institution of the suit. 

In this case, plaintiff Sled a suit seeking declaration of title to the suit property and recovery of possession of the suit property from the Defendant. The Trial Court dismissed the suit. The First Appellate Court allowed the plaintiff's appeal and held that being the owner of a portion of the said premises, he was entitled to declaration of title in respect of the said portion of the suit property owned by him, but not to recovery of possession, since the defendant had been enjoying the suit property for a long time. Allowing the second appeal Sled by the Plaintiff, the High Court held that the Plaintiff was entitled to recovery of half of the plaint scheduled property, after identifying the same with the help of an Advocate Commissioner, at the time of the execution of the decree.

The Apex court, while considering the appeal Sled by the defendant, noted that the High Court had proceeding to allow possession to the Plaintiff on the ground that the Defendant had not taken the defence of adverse possession. It said that the Plaintiff's claim to reliefs is to be decided on the strength of the Plaintiff's case and not the weakness, if any, in the opponent's case, [Baba Kartar Singh v. Dayal Das AIR 1939 PC 201]. 

The Supreme Court has observed that the maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation.

A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.

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