Possession

Contents

CHAPTER I
CONCEPT OF POSSESSION

1. Introduction

2. Concept of Possession

(i) Element of knowledge

(ii) Swallowing substance

(iii) Flexible firm

(iv) Legal concept

3. Elements of possession

(i) Corpus

(ii) Animus

(iii) Three requisites of possession

(iv) Possession both a fact and a right

(v) Conscious Possession

4. Possession in ancient period 

5. Definition of ‘possession’

(i) Possession is evidence of ownership

(ii) Possession itself is a right—

(iii) Importance of possession—

(iv) Illustrative cases

6. Law protects possession—Why?

7. Possessory remedies

8. Juridical possession

9. Possessory title

(i) Importance

(ii) Injunction to protect

(iii) Transferable

10. Kinds of possession

(i) Mediate and immediate possession

(ii) Symbolical possession

(iii) Khas possession

(iv) No khas possession of intermediary

(v) Symbolical delivery of possession in place of actual physical delivery of possession

(vi) Joint possession and exclusive possession

(vii) De facto and de jure possession

11. Acquisition of possession

12. Possession and Ownership

(i) Right of ownership

(ii) Difference

(iii) Sale

13. Presumption—Possession constructive notice

14. Protection of possession of premises

15. Examples on possession dispute

(i) Eviction suit

(ii) Possession over tenanted premises

(iii) Contempt

(iv) Possession protected

(v) Surrender of possession

(vi) Right of defendant

(vii) Suit by transferee for posession

(viii) Resumption of tenanted land by army officer

(ix) Order of police help not proper

(x) Delivery of possession of flat by Development Authority

(xi) Dispossession how to be effected?

(xii) Transferee when not entitled to retain possession?

(xiii) Right of all heirs to succeed statutory tenant

(xiv) Surplus land

(xv) Interruption in mortgagee’s continuous possession

(xvi) Direction for delivery of possession

(xvii) Subsequent suit for possession :

(xviii) Claim of Kudikidappa right on the ground of possession :

(xix) Decree in suit for possession not ignorable by consolidation court :

(xx) Resumption of possession by state of land declared surplus under Ceiling Act :

(xxi) Suit for possession and amendment of provision :

(xxii) No stay of suit :

(xxiii) Landlord entitled to possession after expiry of tenancy :

(xxiv) Eviction on ground of flat in possession of wife :

(xxv) Possession of management of cultivable land :

(xxvi) Liability for eviction :

(xxvii) Application for summary judgment for possession :

(xxviii) Decree for specific performance when property in occupation of tenant :

(xxix) Agreement to vacate as ground for eviction :

(xxx) Eviction and need and sufficiency other accommodation :

(xxxi) Mesne profits :

(xxxii) Restoration of possession :

(xxxiii) No order of restoration of possession :

(xxxiv) Finding of fact :

(xxxv) Decree in suit for possession of evacuee property when nullity?

(xxxvi) Taking of possession by custodian illegal :

(xxxvii) Occupant in possession :

16. Whether possession necessary in pledge :

17. Other issues on/involving possession :

(i) Widow’s entitlement to retain possession :

(ii) Mutation entries :

(iii) No presumption of possession :

(iv) Power of Supreme Court :

(v) Recompensetion of flat owners :

(vi) Exemplary cost for abuse of process of court :

(vii) Limitation for suit for possession by Cantonment Board :

(viii) Minor’s property :

(ix) ‘Possession follows titled’ :

(x) Executive not authorised to dispossess by coercive method :

(xi) Cancellation of allotment not legal :

(xii) Possession not determinable in writ jurisdiction :

(xiii) Plea of limitation when not available?

(xiv) Suit for possession not time-barred :

(xv) Compensation to plaintiff on dismissal of suit for possession :

(xvi) Adjudication of possession :

(xvii) Orders and notifications :

(xviii) Government Circular :

(xix) No putting back in possession :

(xx) Possession of material for unfair means in examination :

(xxi) Restoration of possession :

(xxii) Person not party to contract when can sue?

(xxiii) Adverse Inference :

(xxiv) Disruption of joint Hindu family when not to be construed?

(xxv) Devolution of interest :

(xxvi) Limitation for recovery of property by religious trust :

(xxvii) Setting aside of settlement order not valid :

18. Hindu law and possession :

(i) Obligation for payment of debts :

(ii) Insolvency :

(iii) Word "possessed" in section 14 of Hindu Succession Act :

(iv) Possession of property :

(v) Burden of proof :

(vi) Separate possession :

(vii) Joint possession of coparceners :

(viii) Sale without possession :

(ix) Property in possession of female :

(x) Property in possession of Hindu widow :

(a) Remarriage :

(b) Alienation :

(c) Partition :

(xi) Lease by female Hindu :

(xii) Marumakkattayam and Aliyasantana law—Rights of junior members :

19. Gift and possession :

(i) Position under Hindu law :

(ii) Position under Muslim law :

(iii) Gift in T.P. Act :

(iv) Licence

 

 

chapter ii

joint possession

1. Joint possession

(i) Recovery of possession

(ii) Possession of entire property

(iii) Mortgagee not trespasser

(iv) Suit for declaration of joint ownership

2. Co-sharer—Possession—Injunction

(i) To maintain exclusive possession by injucntion

(ii) Erection of building by one co-sharer when permissible?

(iii) No injunction against other co-sharer

(iv) No injunction against purchaser from other co-sharer

(v) No interference with construction on property in exclusive possession

(vi) Possession of one co-sharer is possession of all

3. Section 145, Proceedings

(i) Joint possession cannot be decided

(ii) Proceedings not barred

4. Pre-emption suit

5. Separate property of coparcener when joint property?

6. Adverse possession

(i) No advrse possession of HUF property

7. Partition suit necessary for giving effect to joint decree

8. Partial performance of contract

chapter iii

dispossession

1. ‘Dispossession’ what means?

2. ‘Dispossession’ implies element of force or fraud

3. Remedy for dispossession

(i) Civil suit

(ii) Suit and section 6 of Specific Relief Act

(iii) Proceedings under section 145, Cr. P.C.

4. Recovery of possession—Object and elements of section 6 of Specific Relief Act

(i) Plaintiff to prove what?

(ii) Title to property not necessary

(iii) Trespass by landlord

(iv) Duty and power of court

(v) Suit within time

(vi) No suit against Government

(vii) Suit by person in adverse possession against trespasser

(viii) No equitable relief available under the Specific Relief Act

(ix) Wrong decisions of consolidation authorities

(x) No prayer No relief

(xi) No mesne profit

(xii) Suit by tenant

(xiii) Suit by landlord/owner

(xiv) No restoration—Compensation for forcible dispossession to tenant

5. Dispossession in due course of law or otherwise

6. Trespasser and dispossession

7. Dispossession of licensee

8. Recovery of possession by person exercising rights of ownership

9. Person acquiring title by adverse possession

10. Injunction

(i) Against dispossession

(ii) Against trespass

(iii) No injunction in favour of real owner against trespasser

11. Lessee

12. Landlord

13. Licensee

14. Res-judicata

15. Co-sharer

16. Suit against or by Government

17. Limitation

(i) Limitation when commences?

(ii) Suit not time-barred

(iii) Applicability of section 22 of Limitation Act

18. Burden of proof on plaintiff

19. Writ

(i) No writ

(ii) Writ on contractual obligations when?

(iii) Delay to disentitle relief

(iv) Relief granted of Supreme Court

(v) Disputed questions of fact not to be decided

20. Notice

(i) Dispossession under Town Planning Scheme

(ii) Taking over possession of factory of defaulter

21. Illegal dispossession

(i) Tenant in possession since long not to be dispossessed

(ii) Right to obstract to illegal dispossession

 

chapter iv

adverse possession

1. "Adverse possession" what is?

2. Elements of ‘adverse possession’

3. Possession of co-owner not adverse

4. ‘Ouster’ of co-sharer what means?

5. Equity and law

(i) Person claiming hostile title not entitled to equity

(ii) Law not to help wrong-doer

6. Right of defendant co-sharer to raise plea of adverse possession in suit for partition

7. Acquisition of Bhuswami rights by adverse possession

(i) Against private person

(ii) Against Government

8. Limitation

(i) Application for delivery of possession by an auction purchaser

(ii) Period of limitation when arrests period of adverse possession?

(iii) Heirs of deceased Muslim

(iv) Suit for recovery of possession barred by time

(v) Implications of section 27 of Limitation Act Suit for possession

(a) Permissive possession

(b) Possession obtained under

(vi) Suit not barred by time

9. Appeal

(i) New plea not raisable

(ii) New case not to be made out

10. Suit for possession based on title

11. Benami Transaction

(i) Burden of proof

(ii) Essence and test

(iii) Benami Transaction’s theory also applies to possession of movable property

(iv) Act not retrospective

(v) Bar of section 4 of Act when not attracted?

12. Acquisition of title by adverse possession

13. HUF property No adverse possession of coparcener

14. Hindu law

(i) No adverse possession of trespasser qua reversioners

(ii) Possession by Hindu widow

(iii) Nature of adverse possession against Hindu widow

(iv) Widow can acquire title by adverse possession

15. Adverse possession—Specific Relief Act

16. Possession under contract of sell not adverse

17. No conversion of permissive possession into adverse possession

18. Burden of proof on adverse possessor

19. Co-heir—Requirement of adverse possession

20. Co-sharer and adverse possession

(i) Co-sharer when can succeed in claiming absolute title?

(ii) No ouster

(iii) Assertion of hostile title with exclusive possession essential

(iv) Damages for use of property

21. Claim of adverse possession by licensee

22. Long continued possession not necessarily adverse

23. No conversion of permissive possession into adverse possession

24. Grant of lands by Government

25. Landlord and tenant and adverse possession

(i) No acquisition of permanent right of occupancy of tenant

(ii) No adverse possession

(iii) Surrender of tenancy by tenant necessary

(iv) Tenants right to re-enter reconstructed building

(v) Adverse possession—When starts?

26. Mortgage

(i) Mortgage with possession

(ii) Sale by mortgagor to mortgagee

(iii) Limitation

(iv) Mortgagee cannot claim title adverse to mortgagor

(v) Mortgagee cannot change nature of possession of mortgage

(vi) Possession of mortgagee of usufructuary mortgage lawful

(vii) Simple mortgage and adverse possession

(viii) Adverse possession and right of prior mortgagee

(ix) Res judicata

27. Constructive possession not sufficient

(i) No constructive possession when possession of true owner rightful

(ii) Applicability of theory of constructive possession to suit by trespasser against subsequent trespasser

(iii) Constructive possession of co-sharers

28. A suit for possession on the ground of inheritance

29. Period of adverse possession against local authority

30. Pleadings and proof

(i) Effect of absence of pleadings and proof pleading and proof

(ii) Mutation in name of elder member of HUF not sufficient to prove adverse possession

31. Other concepts on adverse possession

(i) Adverse possession of limited interest

(ii) Adverse possession against the idol—Shebait

(iii) Sale of undivided interest

(iv) Suit for declaration based on unregistered sale deed

(v) Transfer of Scheduled Tribe land

(vi) There can be no adverse possession by public and the use of well by them cannot affect plaintiff’s title or possession—It is only permissive in character

(vii) Mutawalli and adverse possession

(viii) Adverse possession and International law

 

chapter v

illegal possession/unlawful possession

1. Lis pendens and continued illegal possession

2. Public servant to account for possession of excess wealth

3. Unlawful possession of railway property

 

chapter vi

suit for declaration and injunction

A. Suit for declaration

A. Suit for declaration

1. Object and scope of section 34 of Specific Relief Act

2. Suit for declaration without possession not maintainable

3. Suit when not to fail on relief of possession not asked for

4. Suit for declaration of right as co-shebait

5. Declaration of right

6. Share of co-owner

7. Suit for injunction maintainable without prayer for declaration of title

8. Suit for declaration by tenant

9. Possession under section 145, Cr.P.C.

10. Further Relief

11. Benamidar

12. Suit by vendee

13. Adverse inference when cannot be drawn?

B. Injunction

1. Introduction

2. What is injunction?

3. Codification of injunction

4. Kinds/classification of injunction

5. Injunction may be granted under section 142, Cr. P.C. at any stage

6. Discretionary power of court to grant or refuse injunction

7. Jurisdiction

(i) High Court

(ii) Court

8. Police aid

(i) Direction to police to give aid to the aggrieved party

(ii) Implementation of injunction order

9. Section 37 of the Specific Relief Act 

(i) Interim order

(ii) Dispossession of tenant

(iii) Appellate Court when can interfere in a discretionary?—Principles

10. Temporary and perpetual injunction

11. Temporary injunction

(i) Consideration—Possession and not title

(ii) Factors

(iii) Plaintiff must have right

(iv) Entitlement

(v) Suit for declaration of title simplicitor

(vi) Vacation order of status quo

(vii) No temporary injunction when need of public at large involved

(viii) Sale by one co-owner

(ix) Ad-interim injunction in favour of allottee

(x) No interim relief greater than final relief

(xi) Appointment of receiver while rejecting interim injunction

(xii) To restrain inference with possession

(xiii) Cases where temporary injunction not grantable

(a) No injury on refusal

(b) To restrain prosecution of proceedings

(c) Possession obtained by force

(d) Affairs of school

(e) Mere allegation

(f) To exclude husband from possession

(g) Equally efficacious relief available

(h) Permanent injunction where not available

(i) Lack of jurisdiction

(j) Suit time-barred

(k) Suppression of material fact

(l) Possession already delivered to auction-purchaser

(m) Exclusive possession of co-sharer

(xiv) Co-sharer

(xv) Vacation

(xvi) Injunction in favour of trespasser—When?

(xvii) Order passed under section 145 (b), Cr. P.C.—Civil court’s power

(xviii) Restoration of possession

(xix) Temporary ad-interim injunction and its validity

(xx) Whether injunction against decree-holder or not

12. Perpetual injunction

(i) Suit suit for bare injunction maintainable

(ii) Condition—Breach of obligation

(iii) Rival claim—Prayer for declaration necessary

(iv) Defence of adverse possession

(v) Interim relief 

(vi) Investigation of title

(vii) Duty to determine lawful possession

(viii) Persons entitled to obtain injunction

(a) Person in long continuing possession

(b) Licensee

(c) Person in possession

(d) Rate payer

(e) Co-sharer

(f) Co-owner 

(g) Tenant or lessee

(h) Prospective vendee

(ix) Kinds of Tort and injunction

(a) Nuisance

(b) Public or private nuisance

(c) Trespass

(d) Waste

(x) Principles for granting interim relief

(xi) Execution of decree for injunction

(xii) No limitation for execution

(xiii) No injunction against execution of decree

(xiv) Prohibition from interference with possession

13. Mandatory injunction

(i) Mandatory and prohibitory injunction—Distinction

(ii) Mandatory injunction—What connotes?

(iii) Discretion of court in granting mandatory injunction

(iv) Burden of proof of plaintiff

(v) Obligation

(vi) Delay

(vii) Restoration of status quo by the order of mandatory injunction

(viii) Temporary mandatory injunction—When can be granted?

(a) No interim relief by deciding main relief

(b) Temporary mandatory injunction when cannot be granted?

(ix) Trespass

(x) Co-sharer and injunction

(xi) Licence and injunction

(xii) Easement and temporary injunction

(xiii) Damages instead of mandatory injunction

14. Refusal of injunction

(i) Provision not exhaustive

(ii) No prohibition in granting temporary injunction

(iii) Exception—Prosecution of multiplicity of proceedings [clause (a)]

(iv) No restraint of proceeding in court not subordinate [clause (b)]

(v) No restraint from applying to legislative body [clause (c)]

(vi) No restraint of criminal proceeding [clause (d)]

(vii) No injunction cannot to prevent the breach of contract [clause (e)]

(viii) No injunction to prevent act on ground of nuisance—When nuisance not clear [clause (f)]

(ix) No injunction to prevent a continuing breach in which plaintiff acquiescing [clause (g)]

(x) No injunction when equally efficacious relief certainly obtainable [clause (h)]

(xi) No injunction if conduct of plaintiff or his agent disentitling [clause (i)]

(xii) No injunction where plaintiff has no personal interest in matter

15. Injunction to perform negative agreement

(i) Negative agreement to be either expressed or implied

(ii) No injunction if term of agreement harsh

16. Miscellaneous based issues on injunction

(i) Subsequent events

(ii) Injunction in favour of co-sharer on private arrangement

(iii) re-examination of questions

(iv) Restoration of possession

(v) No error of law

(vi) Proof of right over disputed land

(vii) No prima facie case—No temporary injunction

17. Principles on court fee

(i) Wrong principle applied—Interference

(ii) Valuation of agricultural land for court fee

(iii) Valuation in suit for recovery of possession from lessee on expiry of lease

(iv) Valuation of tenanted property

(v) Suit by indingent person

(vi) Suit for declaration of possession

(vii) Question of court-fee

 

chapter vii

recovery of possession

1. Introductory

2. Recovery of possession of immovable property—Provisions of Specific Relief Act

3. Sections 5 and 6 of Specific Relief Act

(i) Not mutually exclusive

(ii) Title not necessary for suing under section 5

4. Object and scope of section 6

(i) Expression "person claiming through"

(ii) "Notwithstanding any other title"

(iii) "Immovable property" what means?

(iv) Summary remedy of restoration of possession within six months of dispossession

(ii) Plaintiff to prove what?

(iii) Special limitation

(iv) No suit against Government

(v) No other relief except recovery of possession

(vi) No damages and mesne profits

(vii) Suit for declaration of title and recovery of possession not barred [section 6(4)]

(viii) Injunction/interim relief

5. Possession

(i) Right to exclude others

(ii) Combination of corpus and animus

6. Possessory title

(i) Principle

(ii)

(iii) Transferable and heritable

7. Permissive possession

(i) Perfection of title

(ii) Suit against lessee holding over within time

(iii) No conversion into adverse possession

(iv) No adverse possession when under agreement of sale

(v) Permission for part

8. Dispossession

(i) What means?

(iii) Suit by purchase against tenant

(iv) Dispossession otherwise than in due course of law not permissible

(v) No restoration but compensation when?

(vi) Injunction when available?

(vii) Real owner when not entitled to injunction

9. Right of trespasser to recover possession

(i) No relief if section 6 of Specific Relief Act invoked beyond six months of dispossession

(ii) Two trespassers

(iii) No trespasser

(iv) Trespasser liable to mesne profits

10. Licensee’s right to recover possession

(i) Possession of licensee permissive and he can be thrown out at any time

11. Servant

12. Landlord

13. Right of lessee to recover possession

14. Co-sharers

15. Mortgagee’s right

16. Person in possession by mutual arrangement

17. Parties to suit for recovery

18. Suit by person dispossessed in proceeding under section 145, Cr. P.C.

19. Appointment of receiver

20. Recovery of specific movable property

(i) Distinction between sections 7 and 8 of the Specific Relief Act 

(ii) "Person entitled to immediate possession"

(iii) Specific movable property

(iv) Goods in possession of third party

(v) Limitation

(vi) Suit for recovery of money—Limitation when commences

(vii) Decree how to be framed?

(viii) Possession and control

(ix) Effect of judgment

(x) Movable held as agent or trustee

(xi) Compensation and difficulty to ascertain actual damage 

(xii) Possession wrongfully transferred from plaintiff

21. Miscellaneous concepts

(i) Illegal acts—Injunction

(ii) Restoration of status quo by mandatory injunction despite want of prayer for recovery of possession

(iii) Restoration of status qua ante on application for mandatory injunction

(iv) Relief of possession

(v) Restoration of possession

(vi) No illegal dispossession of lessee even after expiry of lease 

(vii) Proceeding for restoration of possession against licensee 

(viii) Benami transaction

(ix) Landlord’s right to seek recovery of possession despite having another house

(x) No striking off names of heirs of deceased as parties

(xi) No res judicata

(xii) Suit for recovery of possession not maintainable

(xiii) Suit for recovery of possession of trust property

(xiv) Article 142 of Limitation Act not applicable

(xv) Relief of possession where deniable

chapter viii

Delivery of possession

1. Gift

(i) Delivery of possession and Hindu law

(ii) Acceptance of gift essential under Hindu law

(iii) Actual delivery of possession

2. Power to grant relief for possession

(i) Suit for specific performance—Independent prayer for delivery of possession not necessary

(ii) Bar of section 22(2) not to operate in all cases

(iii) Amendment of plaint at any stage

(iv) Amendment in appeal

(v) Subsequent suit for possession not barred

4. Section 28 of the Specific Relief Act

(i) Rescission of contract and restoration of possession

(ii) Scope of section 28(3)

(iii) Separate action for recovery of purchase price not barred 

5. Alternative relief

6. Cancellation of instruments, suit, relief and limitation

(i) Instrument altogether void

(ii) Discretion to be excersided judicially

(iii) Limitation

7. Relief of recovery of possession

(i) Article 134 of Limitation Act to apply

(ii) Limitation for delivery of possession by virtue of sale in execution

(iii) Objection by third party resisting executioOrder 21, Rule 35, Order 21, Rule 97

chapter ix

execution of decree for possession of property

1. Execution under compromise decree by transferee

2. Execution of decree by which court?—Powers and limitations

(i) Theory of intention

(ii) Decree not superseded because of agreement

(iii) Removal of person in possession when not necessary?

(iv) Claim of partition by auction purchaser

(v) Enquery on objection by third party

(vi) Entitlement to obstruct execution defending illegal dispossession

(vii) Right of third party in possession to get his claim adjudicated

(viii) Non-delivery of possession—Dispute of civil nature

(ix) Execution time-barred

(x) Execution by appointment of receiver

(xi) No setting aside in revision of common and inseparable order in execution

(xii) Grant of police aid without enquiry into objection of third party not proper

(xiii) Enquiry and order for removal of obstruction

(xiv) Fresh warrant of possession

 

chapter x

proceedings under Cr. P.C. and suit for possession

1. Jurisdiction of criminal court normally not available

2. Dispute not on right to but question of possession

3. Suit maintainable

4. Magistrate’s order subject to decision of civil court

5. Declaration under section 145, Cr. P.C. binding on plaintiff 

6. No ground to quash proceedings under section 145, Cr. P.C. 

7. Notice of dispossession

8. Appointment of receiver by civil court

9. Restoration of possession when not grantable under Cr. P.C.?

10. No restoration of possession by Supreme Court under Article 142 on proceedings under Cr. P.C.

11. Proceeding under section 145, Cr. P.C. not permissible when civil suit pending

12. Proceeding under section 145, Cr. P.C.—Co-sharer

13. Disputed possession

14. Proceedings under section 145, Cr. P.C.

(i) Condition precedent for initiating

(ii) Attachment

(iii) Attachment without deciding question of possession not valid 

(iv) Attachment when comes to end?

(v) Attachment and direction to approach civil Court

(vi) Joint possession not decidable

(vii) Right or title not to be decided

(viii) Enquiry by Magistrate essential for conclusion of emergency

(ix) Land in dispute when can be taken into Government custody?

(x) Finding on possession final

(xi) Order of status quo not finding on possession

15. Wrongful possession—Joint liability—Mesne profit—Limitation

chapter xi

possession in criminal law

1. Meaning of possession

2. Concept of possession

(i) Element of knowledge essential

(ii) Swallowing substance

(iii) Constructive possession

(iv) Conscious possession

(v) Person entitled to maintain his possession—To the use of reasonable force

(vi) Innocent possession cannot be declared as offending

(vii) Continuing wrong and limitation

3. Railway property (Unlawful possession)

(i) Conviction for possession without knowledge not sustainable 

(ii) Essential requirements of offence

(iii) Conviction upheld but sentence reduced

4. Possession under Prevention of Corruption Act

5. All members of family not liable for conviction

6. ‘Possession’ under Arms Act

7. Joint possession

8. Offences under TADA Act

(i) Presumption regarding unauthorised possession of aims

(ii) Mere Conscious possession enough

(iii) Conviction where sustainable

(iv) Conviction where not sustainable

8. Compensation to accused

9. Punishment

(i) Recovery of weapon not to connect accused with murder 

(ii) Conviction where sustainable

(iii) Conviction where not sustainable

10. Possession under Opium Act

11. Possession under NDPS Act

(i) Possession of brown sugar

(ii) Unlawful possession

(iii) Possession of opium

(iv) Possession of heroin and cocaine

(v) Possession of charas

12. Restoration of property

13. New plea of law raisable in appeal