Demystifying the concepts of title and better title in a suit for possession

Possession implies actual power over the object possessed and apparent control over it (known as the corpus) and some amount of will to avail oneself of that power exclusively (known as the animus). Neither corpus nor animus is sufficient in itself, the possession begins with their union and lasts only until one or both of them disappear. The concept of possession rules the realm of civil law, which is regarded as one of the complex fields of law. As the practice of law requires a comprehensive understanding of many facets of a case and how a case is conducted, it depends on how one set up pleadings which includes what one should say and what is best to be left unsaid. In that context, the present article aims to elucidate the vexed concepts of title and better title in a civil suit for possession of immovable property.

Section 5 of the Specific Relief Act, 1963, provides that a person entitled to the possession of an immovable property may recover it by filing a suit in the manner as provided under the Code of Civil Procedure. Section 6 of the Act provides for a special remedy of possession through a summary procedure for a person dispossessed from an immovable property without consent otherwise than in a due course of law. Based on the reliefs provided under the Specific Relief Act, there are three types of actions which can be filed for the recovery of specific immovable property and those are:

  1. A suit based on a title by ownership;

  2. A suit based on possessory title; and

  3. A suit based merely on the previous possession of the Plaintiff, where he/she has been dispossessed without his/her consent otherwise than in due course of law.

There is a distinction between all the above types of suits with respect to the points which are required to be established before the Court to succeed. However, it is outside the purview of this article to examine the difference between all the three remedies therefore, for the present context, the discussion is limited to first two types of the suits i.e. suit based on title by ownership and suit based on a possessory title.

A suit under Section 5 can be filed on the basis of prior possession and not on the title (known as possessory title), when the plaintiff while in possession of the property has been dispossessed, under Article 64 of the Schedule to the Limitation Act, 1963, within twelve years from the date of dispossession. Alternatively, a suit under Section 5 can be filed based on the title, under Article 65 of the Schedule to the Limitation Act, within twelve years from the date when the possession of the defendant becomes adverse to the plaintiff.

The point to be established in both cases is different. In cases based on the title, one must show his title i.e. proprietary title over the immovable property. Legally, the term “title” means a bundle of rights in property and generally refers to a formal document, such as a deed, that serves as evidence of ownership. A conveyance of the document may be required in order to transfer ownership in the property to another person. There are various modes of transferring ownership right of immovable property. The primary mode of transferring permanent rights of immovable property to any other person is by way of a registered sale deed under Section 54 of the Transfer of Property Act, 1882. Even an agreement to sell would fall short of requirements of Sections 54 and 55 of the Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property[Suraj Lamps and Industries Pvt. Ltd. v. State of Haryana and others AIR 2012 SC 206]. Therefore, the law is clear and stands well established, in a suit based on title by ownership a valid sale deed or conveyance deed is required to be duly proved. An agreement to sell or General Power of Attorney etc. such documents do not constitute valid title to the immovable property.

In a suit based on a possessory title, one has to prove settled and established possession i.e. the Plaintiff must be in actual physical possession of the property for a sufficiently long period and that the possession must be to the knowledge of the others which is regarded as a good title against all except the true owner[Somnath Barman vs Dr. S. P. Raju & Anr on 16 October 1969: 1970 SCR (2) 869]. The concept of a better title is a Court evolved phrase and has been generally used in exchange to the possessory title which one proves over an immovable property and is considered to be valid as a better title against all but the true and lawful owner. This concept is primarily based on a well-established age-old principle which is given statutory recognition under the Evidence Act i.e. “possession is a prima facie proof of ownership of property” and therefore it is considered to be a good title against all who cannot prove a “better title”. The principle is based upon a legal maxim “in pari causa potior est conditio possidentis” meaning every man can keep what he possesses unless someone can prove that he has a better title.

Even if a person in possession is dispossessed by a trespasser, he can sue for recovery of possession on the basis of a possessory title because he has a better title than the trespasser who has no right whatsoever to remain in the property[Rai Kiran Chandra Roy v. Prosanna Kumar Chakravarti, AIR 1934 Cal 561] (emphasis mine). The concept of a better title is found and is usually balanced between the right of the Plaintiff to remain in possession of the property because of the fact he/she has the better title on the basis of his/her previous possession (possession being prima facie proof of ownership), and that the Defendant has no right whatsoever to remain in the relevant property. Where a suit is one for possession against a trespasser, i.e., one having no title to the land, the question is whether it is necessary in such a case for the Plaintiff to succeed that he/she should prove his/her title, or whether it is sufficient if the Plaintiff proves his/her previous possession which is generally termed as the better title.

This may be explained by an illustration: A alleging that the Plaintiff has been in quiet and undisturbed possession of certain land for 11 years and six months and that he/she was forcibly ousted from possession by B, who never had any title to the land at all. A sues B for possession eight months after the date of dispossession in terms of Article 64 of the Schedule of Limitation Act. A has no title to the land at all, but it is proved that he had been in possession as alleged. B also has no title of any kind to land. Is A entitled to decree? Yes, A is, and this is based upon the aforesaid principle i.e. possession is a good title against all, but the true owner and entitles the possessor to maintain ejectment against any other person than such owner who dispossesses.

In Nair Service Society Ltd. v. K.C. Alexander[AIR 1968 SC 1165], the Plaintiff brought a suit for possession of lands alleging his possession for 70 years and forcible dispossession by the Defendant. The Defendant pleaded that the suit for possession did not lie without proving title and that a prior trespasser could not evict a later trespasser and mere possessory suit after the expiry of six months was not possible under Section 9 of Specific Relief Act (now Section 6). The Supreme Court held that the Plaintiff was in prior possession and could maintain a suit based on prior possession without proof of title even after expiry of six months which though entitles the Defendant to raise the question of title, in which circumstances the Plaintiff, therefore, must prove the better title or fail. The term better title, in this case, signifies the prior possession of the Plaintiff. In another case for possession where neither the Plaintiff nor the Defendant was able to prove the title, but the Plaintiff was able to prove his possession for four years until he was dispossessed, the Plaintiff was entitled to the decree of possession since he had a better title (i.e. possessory title) than the Defendant [Naba Kishore Tilakdas vs. Pora Bewa, AIR 1922 Cal 198].

[Ravinder Kaur Grewal v. Manjit Kaur decided on August 07, 2019: Civil Appeal No.7764 of 2014 reported in (2019)8SCC729] Recently, the Supreme Court held that a suit to recover possession can be brought under Article 65 by any person who has perfected his/her title by way of adverse possession. It further stated that once the period of 12 years of adverse possession is over, even owners right to eject the possessor is extinguished and the possessor acquires right, interest and title of the true owner. The said observation and law laid down by the Supreme Court has in effect bred a second type of suit which can be brought under Article 65 of Schedule to Limitation Act i.e. a suit based on title acquired by way of adverse possession. The concept of suit based on a possessory title under Section 5 of Specific Relief Act read with Article 64 of Schedule to Limitation Act, overlaps with the concept of adverse possession where the Plaintiff in addition to settled possession is required to show un-interrupted, peaceful, and open possession i.e. adverse possession for 12 years. Therefore, the concept of possessory title generally termed as “better title” as against all but the true owner, when accompanied with other ingredients such as un-interrupted, peaceful and open possession, the same can be stretched little further and made applicable in cases against true owner also.

The concept of better title in the realm of civil legislation and the suit for possession (on the basis of a possessory title) has always been used in reference to the prior possession of Plaintiff and its application is restricted only against the trespasser who has no title over the property, however, the application of the concept of better title cannot be transported and used in the suit for recovery of possession based on title as per article 65 of schedule to limitation Act, as in such cases the person is required to prove his/her title over the property in terms of the judgment rendered by Supreme Court in Suraj Lamps (supra). In as much as, the General Power of Attorney (issued in exchange of consideration) and Agreement to sell do not constitute any title or interest in the suit property nor can constitute a better title, which term has always been used in analogy to the age-old principle that possession is prima facie proof of ownership of property as against all but the true owner.

Thus, the term better title has been always used in context to provide right and entitlement to a person asserting his/her right over a property on the basis of possessory title as against another trespasser upon such property, as possession is prima facie proof of ownership of property as against all but the true owner.

Article by Nisha Sharma

1st published on Axfait