Property Lawyer: Third party dispossessed in execution of decree - for getting possession back have to prove tittle - mere possession is not sufficient; SC.

Supreme Court of India

Justice Ashok Bhushan and Justice Navin Sinha

The SC was considering the question that whether the third party who was dispossessed during the execution of decree has to only prove its possession to reclaim possession under Order XXI Rule 98-100 CPC or it is also essential to prove tittle / right / interest in the suit property by the third party for reclaiming possession?

The SC holds that mere possession is not enough for reclaiming possession by the third party in case of dispossession in execution of decree. It also has to prove its right / tittle / interest in the suit property for reclaiming possession under Order XXI Rule 98-100 CPC. The SC also dealt with earlier judicial decisions in: Shreenath and Another Vs. Rajesh and Others, (1998) 4 SCC 543; Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and Another, (1998) 3 SCC 723; Ghasi Ram and Others Vs. Chait Ram Saini and Others, (1998) 6 SCC 200; Ashan Devi and Another Vs. Phulwasi Devi and Others, (2003) 12 SCC 219, in the present case. It was held by the SC that all the issues arising between the parties have to be decided in the proceedings under Order XXI Rule 98-100 CPC by the executing court.

 It was held:

"28. High Court committed error in observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without determination of right, title or interest, the application could not have been allowed. We having already extracted the observations of the High Court, where it clearly held that the title in respect of the property by way of adverse possession need not be gone into in the appeal before it. The above observation of the High Court was erroneous. In the proceeding under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the respondent No.1 cannot claim that he should be put back into possession. We do not accept the submission of the learned counsel for the respondent that on mere fact that respondent No.1 was in possession of the premises prior to being dispossessed, they should be put back into possession. For putting back into possession, the respondent No.1 was obliged to establish his title to the property by adverse possession, without which, he could not have asked the Court to put him back into possession. The High Court clearly erred in allowing the appeal and the Executing Court has rightly rejected the application filed by respondent No.1. We may further notice that suit No.211 of 1990 filed by respondent No.1 seeking declaration of title to the property by adverse possession has been subsequently dismissed by decree on 16.03.2009 and no steps have been taken for restoration of the suit."

The judgment of the High Court was set aside and that of executing court was restored by the SC.