Supreme Court: When Parties Fail to Disclose Title in Suit for Possession, Prior Possession Decides the Right to Possession

Supreme Court: When Parties Fail to Disclose Title in Suit for Possession, Prior Possession Decides the Right to Possession

The Supreme Court by its division bench of Justices BR Gavai and CT Ravikumar observed that when the facts disclose no title in either party, at the relevant time, prior possession alone decides the right to possession of land in the assumed character of owner against all the world except against the rightful owner. In that context, the Court pertinently referred to the maxim ‘Possessio contra omnes valet praeter eur cui ius sit possessionis’ (he that hath possession hath right against all but him that hath the very right).

In the present case an appeal was preferred against the judgment and decree passed by the Karnataka High Court.

It was contended by the appellant that the respondents had failed to establish his possession over plaint ‘B’ schedule property. That apart, it was contended that the High Court had failed to consider the contention that the subject suit was actually abated owing to the failure of the respondent to bring on record the legal representatives of Sri Hanumaiah, the third respondent who breathed his last during the pendency of the subject suit.

It was their further their contention that Sri Rama Ramamurthy, the deceased second defendant had purchased the suit property from Sriman Madhwa Sangha which is an organization and Sri Vittal Rao as per sale deed executed on 5 October, 2000 jointly by the latter and the authorized representative of the former organization and therefore, the High Court ought not to have confirmed the judgment and decree of the Trial Court

The High Court, inter alia considered the following aspects as well:

1. That, in the written statement filed by the defendants they did not disclose their defense and at the same, they also did not plead therein that they are in possession of the suit property.

2. That their plea, essentially attracts the principle of ‘just tertii,’ which expression in Latin means ‘right of a third party’, that the third parties, according to them, are Sriman Madhwa Sangha, which is an organization and Sri Vittal Rao, that it has come in evidence that those third parties filed a petition for evicting the respondent herein/plaintiff.

In the present matter, the defendants had pleaded that the ownership of the suit property was with the said third parties and did not claim possession specifically and thereafter they sought to bring in a plea that pursuant to an agreement for sale entered into between those parties viz., the first defendant/the first appellant herein dated 1 March, 1993 possession of the suit property was delivered to the first appellant.

The Apex Court evidently noted that the High Court had declined to act upon the same, in the light of the doctrine of lis pendens.

The bench commented, “even if it is taken for granted that the provisions under Section 52 of the Transfer of Property Act are not applicable as such in the case on hand it cannot be disputed that the principle contained in the provision is applicable in the case on hand. It is a well-nigh settled position that wherever TP Act is not applicable, such principle in the said provision of the said Act, which is based on justice, equity and good conscience is applicable in a given similar circumstance, like Court sale etc.”

In this regard, the Court observed, Transfer of possession pendente lite would also be transfer of property within the meaning of Section 52 and, therefore, the import of Section 52 of the TP Act is that if there is any transfer of right in immovable property during the pendency of a suit such transfer will be non-est in the eye of law if it will adversely affect the interest of the other party to the suit in the property concerned.

The Court vehemently added that, the effect of Section 52 is that the right of the successful party in the litigation in regard to that property would not be affected by the alienation, but it does not mean that as against the transferor the transaction is invalid.

In this regard, the bench referred the decision passed in Thomson Press (India) Ltd. v. Nanak Builders and Investors Private Limited, in which the Court held the provision of Section 52 of the Transfer of Property Act, 1882, did not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation.

Therefore, the Apex Court held that the High Court was perfectly justified in the circumstances, to come to the conclusion, while considering the application for amendment of the written statement filed at the appellate stage, that granting the same would have, in effect, necessitated framing of fresh issues and constrained the parties to agitate their rights as if in a de novo trial.

Further, indisputably the Court noted the case of the respondent herein/the plaintiff was based on prior possession and illegal dispossession by the respondents. It was evident that on a careful consideration of the available pleadings of the defendants, the High Court held that they did not disclose their defense in their written statement and at the same time did not even contend therein that they are in possession of the suit property.

The Apex Court observed, “in such circumstances, when the facts disclose no title in either party, at the relevant time, prior possession alone decides the right to possession of land in the assumed character of owner against all the world except against the rightful owner.”

The bench also observed that in a suit for possession, the defendant's claim that a third party has title over the property is not sustainable. This plea is known as the plea of “jus tertii,” which in Latin means ‘right of a third party.’ It is a plea against a claim of interest in property, raised in defense that a third party has a better right than the claimant. However, in a suit against trespass, such a plea is not maintainable.

Therefore, the Court without hesitation held that that the appellants had failed to raise sufficient and appropriate pleadings in the written statement that they have better right for possession of the suit properties, and accordingly dismissed the appeal.