Application For Putting Back Into Possession Cannot Be Allowed Merely Because Applicant Was In Possession Prior To Dispossession: SC [Read Judgment]

In the proceeding under Order XXI Rules 99, 100 and 101 of the Code of Civil Procedure, right, title or interest has to be determined and without establishing right, title or interest, and on mere fact that the applicant was in possession of the premises prior to being dispossessed, he could not be put back into possession, the Supreme Court has held.

The Executing Court, in this case [Shamsher Singh vs. Lt. Col. Nahar Singh (D)], dismissed an application filed by a person for putting him back into possession under Order XXI Rules 98, 99 and 100 CPC, on the ground that he failed to establish his case that he has clear right, title and interest over the suit property by way of adverse possession. The High court set aside the order observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question.

In appeal, the bench comprising Justice Ashok Bhushan and Justice Navin Sinha, scanning through these provisions, observed that, without determination of right, title or interest, the application could not have been allowed. For being put in possession, an applicant has to prove his right, title or interest in the property and by simply proving that he was in possession prior to the date he was dispossessed by decree-holder, he is not entitled to be put back in possession, the court said.

The court further observed that the applicant while he filed his application claiming to be put back into possession, he was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The bench further observed:

"In view of the statutory scheme which is delineated by amended provisions of Rule 101, the submissions of the counsel of the respondent that by simply proving the fact that he was in possession prior to he being dispossessed by decree-holder, he should be put back in possession cannot be accepted. The respondent-applicant had to prove his right, title or interest 

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The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When the respondent No.1 filed his application claiming to be put back into possession, it was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The Executing Court has considered the application of respondent No.1 in right perspective and has clearly held that respondent No.1 failed to prove his title by adverse possession, hence application deserves to be rejected."

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