Dispossession or ouster is wrongfully taking possession of land from its rightful owner. The word 'dispossession' applies only to cases where the owner of land has, by the act of some person, been deprived altogether of his dominion over the land itself, or the receipt of its profits.1) In order to constitute dispossession there must in every case be positive acts, which can be referred only to the intention of acquiring exclusive control. A person cannot be dispossessed of immoveable property unless he was possessed thereof at the time.
The party dispossessed can bring an action of ejectment to recover possession of the land. The plaintiff is put to proof of his title, for the defendant by virtue of his bare possession has a good title as against all who cannot show a better.
Proof that the plaintiff was in possession before the defendant, no matter for how short a time is prima evidence of his having title, for such prior possession raises a presumption that he was seised in fee; but though such presumption cannot be rebutted merely by showing that the plaintiff did not derive his possession from any person who had title2), the weight of authority is in favour of the view that it may be rebutted by showing that the title is in fact in a third person.
To an action of ejectment jus tertii is a good defence. There are, however, exceptions to this:
When possession at a certain time has been satisfactorily proved, a presumption of possession at an antecedent period may in certain circumstances arise.5)
Where the question of possession is doubtful, a presumption will arise in favour of the party who proves title.6)
There was a conflict of opinion between the different High Courts as to whether a plaintiff in a suit for possession of immovable property, other than a suit under s. 6 of the Specific Relief Act 1963, is entitled to succeed merely upon proof of previous possession and dispossession by the defendant within twelve years prior to the suit, or whether he is bound to prove title.
A full Bench of the Bombay High Court has held that possession is a good title against all persons except the rightful owner, and entitles the possessor to maintain ejectment against any other person than such owner who dispossesses him.7) Possession is evidence of title and is primarily exclusive. It is for him who impugns the exclusive title to show that the possession originated in some way which has preserved his own right; otherwise we must attribute a legal origin and the usual incidents to actual, continued and peaceful enjoyment.8)
Thus, a plaintiff, although suing more than six months after the date of possession and without resorting to a possessory suit (Specific Relief Act, s. 6), is entitled to rely on the possession previous to his dispossession as against a person who has no title.9) The view of the Bombay High Court is in accordance with the English law.10) The effect of the Bombay cases is that when there is wrongful ouster of the person in possession, the person who comes into Court to oust such tortfeasor need not prove more than his possession of the lands in dispute, and that he had been ousted by the defendant, and that the plaintiffs prior possession was prima facie evidence of his title. The Privy Council has also decided that lawful possession of land is sufficient evidence of right as owner, as against a person who has no title whatever, and who is a mere trespasser.11) In the case of Hanmantrao v. Secretary of State Ranade, J., said: “Where the conflict is between mere previous possession and recent actual possession, the fact of previous possession will not entitle plaintiff to a decree except in suit under section 9, Act I of 1877 (Section 6 of the Specific Relief Act, 1963), brought within six months from dispossession. Where this period is exceeded before a suit is brought, and is less than the limitation law requires, he must make out a prima facie title. And section 110 (Evidence Act) refers to the presumption to be made of ownership based on the circumstance of such possession, and allows the plaintiff with such prima facie title to claim a decree where no superior title is proved on the other side. It is in reference to such cases that it has been held that possession is evidence of title, and the plaintiff who proves such possession and subsequent disturbance, shifts the burden of proof on the defendant when the prima facie title is made out. Mere wrongful possession is insufficient to shift the burden of proof.” But this view of Ranade, J., is not explicit enough. In two later cases decided after this case, Mr. Justice Batty and Mr, Justice Chandavarkar, fully confirm the principle laid down prior to it. In the first case, Mr. Justice Batty says : “Now prior possession is certainly a ground on which, as prima facie evidence of title, a plaintiff may recover possession in the absence of title set up by the defendant even though his suit does not fall within section 6 of the Specific Relief Act.. .But then it must be found not only that the plaintiff's prior possession was within twelve years of suit, but also that it was a juridical possession of the property claimed,” In this case the judgment of Ranade, J., is not referred to.12) In the second case, Mr. Justice Chandavarkar said : The rule of law on which peaceable possession prevails without any evidence of title as against a person without any title is expressed by Lord Campbell in Jeffries v. G. W. Ry. (5 E. & B. 802, 806) to be that a person in possession has a good title as against every stranger and that one who dispossesses him, having no title in himself is a wrong-doer and cannot defend himself by showing that the title is in some third person. In such cases proof of previous possession is, without more, evidence of the plaintiff's title to recover from the defendants who are proved to be wrong-doers. There is a difference between such a suit and a suit under section 6 of the Specific Relief Act. In the former the Courts award the claim only when it finds that the plaintiff had peaceable possession before dispossession and that the defendant has no title and is a wrong-doer, the plaintiff's previous possession being in law sufficient proof of his title : in the latter, the Court can only go into the question of dispossession within six months before suit and cannot enquire into the defendant's title.13)
The Calcutta High Court has, on the contrary, held that mere previous possession will not entitle a plaintiff to obtain a decree for recovery of possession except under the Specific Relief Act which entitles him to recover possession if the suit is brought within six months from the date of dispossession.14) Where the plaintiff merely proves that he has been in possession of the disputed land at some time within twelve years previous to the filing of the plaint, such evidence is not sufficient to throw upon the defendant the burden of proving his title to the land.15) Later this High Court distinguished the Privy Council decision mentioned above (Ismail v. Mahomed) on the ground that what the plaintiff (who was in possession) asked for in that case was a decree declaring his right, and an injunction restraining the defendant from disturbing his possession, and therefore that case did not apply where a plaintiff was already dispossessed and brought a suit for possession six months after dispossession. The Court held : In a suit to recover possession brought more than six months after the date of dispossession, the plaintiff must prove title, and mere previous possession for any period short of the statutory period of twelve years cannot be sufficient for the purpose, because, if that were so, anomalous results might arise ; and it would be difficult to determine what should be the relative durations of possession of the plaintiff and the defendant to entitle the former to a decree.16)
The point did not expressly arise in Madras till the decision in Mustapha Saheb v. Santha Pillai. But the two learned Judges who decided the case hold contrary opinions. Subrahamania Ayyar, J., says that a person who has been ousted by another who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title. O'Farrell, J., says that where a plaintiff in possession without any title seeks to recover possession of which he has been forcibly deprived by a defendant having a good title, he can only do so under the provisions of section 6 of the Specific Relief Act and not otherwise.
The Allahabad High Court once ruled that it is usually for a plaintiff who seeks ejectment to prove his title. But where he proves himself to have peaceably enjoyed possession for a considerable time, the person who has recently dispossessed him has to meet the presumption of law that the plaintiff's possession indicates his ownership.17) But subsequently in a Full Bench case it has held that section 6 of the Specific Relief Act does not debar a person who has been ousted by a trespasser from the possession of immovable property to which he has merely a possessory title, from bringing a suit in ejectment or his possessory title after the lapse of six months from the date of dispossession.18)
Mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act. Claim to possessory title has to be based on exclusive and unimpeded possession and user which has to be established by evidence on a preponderance of probabilities. To determine possessory title, held, court has to determine the nature of use of the property concerned as a whole by the contesting parties.19)
Now the settled position is that in a suit for possession filed on basis of possessory title. Plaintiff need not establish his title. It is enough if longstanding peaceful possession is proved.20)
In case of dispossession by another person by taking law in his hand, a possessory suit can be maintained under Art.64, even before ripening of title by way of adverse possession. In Ravinder Kaur Grewal and Others v. Manjit Kaur and Others the Hon'ble Supreme Court held that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person / owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Art.65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Art.64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.21)
The defences to suits other than under section 6 of the Specific Relief Act are mainly twofold:
Plaintiff should show the value of the mesne profits received by the adverse occupant; and nominal damages will only be awarded if no evidence is given as to the period during which defendant was in possession.22) Any extra damages for plaintiff's troubles may be given.23)