Is the title holder of the property the absolute owner?

Dr Ajay Kummar Pandey, Advocate Supreme Court of India

Your common answer to this question will be in affirmative. But then, it is not so simple and straight or else why does the police not entertain your complaint and just evict the person in possession of the property? Two, why are so many litigations pending all over the courts in the country and even after a decision in favor of the title holder, the matters are dragged in higher courts for years?

Before coming to finer points of law on this subject, let us first understand property rights. Actually, the law of land, recognizes both the rights, that the ownership by virtue of title and also possessory title, that by virtue of actual possession of the property. Now, we need to see that in case of conflict between title holder and possessor of immovable property, who has got an upper hand, at least in legal terms.

Let’s try to decode this with a real-life example. In this case, a person, named Moti Ram, was in possession of a property for a number of years, whereas the ownership right was vested with one, Poona Ram. When Poona Ram, (the owner by virtue of property title), wanted Moti Ram (the person in possession of the property) to vacate the property, he refused.

Poona Ram, moved the court and submitted his title deeds in the suit filed for possession, but despite the submission of better title of the ownership, the trial court decided in favor of Moti Ram, who was in possession of the property. Poona Ram, approached the First Appellate Court, which reversed the order of Trial Court and held that, Poona Ram, in lieu of title deeds had proved his title over the suit property in question.

However, in Second Appeal, the High Court of Rajasthan, restored the order of the Trial Court and observed that Poona Ram was not able to prove his title over the property on two grounds: i) claim for a better title, or disposition of Moti Ram title over the property, ii) Moti Ram not being in possession of suit property, but Moti Ram had possessory title to suit property on the basis of his long-term possession.

So here once again the title holder of the property, Poona Ram, was left in lurch and lost the case to Moti Ram, who was in possession of the property for several years. Left with no option, Poona Ram approached the Apex Court, which decided in his favor. The Apex Court in its judgement opined that “a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such right against the true owner”.

With regard to immovable property, the court resolved that, “Possession is ninth-tenth of the law”. It further established that it is necessary to establish that there must be an establishment of “settled possession” to establish possessory title claim over an immovable property under Indian Law. Thus, to state that any person having casual possession over the immoveable property will not have possessory title over the said property. The Apex Court ruled that, any person claiming the right over property on the basis of possession, will have to show he is under settled or established possession of the said property.

As per the Limitation Act, wherein a suit for possession of immovable property based on previous possession and not on title, if brought within 12 years for date of dispossession, such suit is based on possessory title as opposed to proprietary possession. In the same suit, it also elaborated on the term, “settled possession” holding that such possession over the property which has existed for a long period of time and such effective possession of a person without title would entitle him to protect his possession, similar to that of a true owner.

It further held that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has perfectly good title against the entire world except the rightful owner. The court went beyond and even justified the use of necessary force by the true owner to obstruct or remove the stray act of trespass, or a possession which has not matured into settled possession. It also laid down another requirement of proving the requisite intention to possess in addition to factual possession.

The difference between Possessory Title as opposed to Proprietary Title has been laid down under the law. The claim of property either on the basis of Possessory Title or Proprietary Title is governed by the Limitation Act. The Limitation Act, stipulates that a person aggrieved on either count, may file a suit for recovery of possession of immovable property within 12 years from the time when the possession was adversed or from the date of dispossession. However, in both cases if the period of 12 years expires and the challenge to title of immovable property is not made, then it amounts to closure of the said right.

Based on this case and many more on the same subject, it can be safely concluded that

1. Settled possession must be an effective and undisturbed possession;
2. The possession must be to the knowledge of the owner or without any attempt being made by trespasser to conceal the same;
3. The person claiming the possessory title, must prove his own case and prove a title better than that of the person against whom the relief is claimed;
4. The claim of the party claiming possessory title cannot succeed in the weakness of the case of the party against whom the relief is claimed.
5. Lastly, the better title to the suit property must be proved by passing the trial of settled or established possession by showing an intention to possess the suit property with an intention to subsequent possession for a sufficient period of time, within the knowledge of the owner of the suit property.