➤ Doctrine of possession follows title:
The maxim "possession follows title" is limited in its application to property, which having regard
to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces
accessible to all. The presumption that possession must be deemed to follow title, arises only
where there is no definite proof of possession by anyone else.
L.N. Aswathama And Anr vs P. Prakash, (2009) 13 SCC 229, it was held that in law, possession
follows title. The plaintiffs having established title to the suit property, will be entitled to decree
for possession, unless their right to the suit property was extinguished, by reason of defendant
being in adverse possession for a period of twelve years prior to the suit.
In Nazir Mohammed vs. [Link], (2020) 19 SCC 57, it was held that a decree of possession
does not automatically follow a decree of declaration of title and ownership over property. It is
well settled that, where a Plaintiff wants to establish that the Defendant's original possession
was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be
presumed that possession was adverse, unless there is evidence to the contrary.
The Hon'ble Supreme Court has in the matter of Anathula Sudhakar vs. P Buchi Reddy & Ors
[AIR 2008 SC 2033], clarified the general principles as to when a mere suit for permanent
injunction will lie and when it is necessary to file a suit for declaration and or possession with
injunction as consequential relief, which is reproduced as under:
Para 11.1- When a Plaintiff is in lawful or peaceful possession of a property and such
possession is disturbed or threatened by the defendant, a suit for injunction simpliciter will lie. A
person has a right to protect his possession against any person who does not prove a better title
by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an
injunction against the rightful owner.
Para 11.2- Where the title of the Plaintiff is not disputed, but he is not in possession his remedy
is to file a suit for possession and seek in addition, if necessary an injunction. A person out of
his possession cannot seek the relief of injunction simpliciter, without claiming the relief for
possession.
Para 11.3- Where the plaintiff is in possession but his title to the property is dispute, or under a
cloud, or where the defendant asserts title thereto and there is also threat of dispossession from
the defendant, the plaintiff will have to sue for declaration of title and consequential relief of
injunction. Where the title of the Plaintiffs is under cloud or in dispute and he is not in
possession or not able to establish possession, necessarily the plaintiff will have to file a suit for
declaration, possession and injunction.
In Smt. Noor Aftab Parveen & Others vs. Sri H.N. Chandrashekar & Others from the High Court
of Karnataka in RSA No. 864/2015, decided on 15.01.2021:
Legal Principles Identified
1. Adverse Possession Requirements:
The possession must be:
nec vi (without force)
nec clam (without secrecy)
nec precario (without permission)
Cannot simultaneously claim title under an agreement and adverse possession.
Possession under an agreement of sale (Section 53A of TPA) is permissive—not adverse.
The 12-year period for adverse possession begins only when hostile possession starts (in this
case, only after memo filed on 03.03.2000 renouncing claim for specific performance).
2. Limitation for Possession (Article 65 of Limitation Act, 1963):
A suit for possession based on title must be filed within 12 years from the point possession
becomes adverse.
If adverse possession not established, the right to sue continues.
3. Title and Recovery of Possession:
Even possessory title is valid against the world except the true owner (as per Perry v. Clissold).
A plaintiff in possession under a partition decree and revenue records can assert possessory
rights.
4. Constructive Res Judicata / Order II Rule 2 CPC:
Bar under constructive res judicata or Order II Rule 2 CPC must be specifically pleaded and
proved with previous suit pleadings.
Mere production of earlier judgment without pleadings is insufficient to sustain this bar (Gurubux
Singh v. Bhooralal).
5. Appropriate Relief and Pleading:
When there’s a cloud over title, declaration of title should be sought (as per Anathula Sudhakar
case), but not mandatory when title is uncontested by strangers.
A plaintiff must succeed on strength of their own case, not on the weakness of the defendant’s.
6. Right to Possession:
The right to possession does not extinguish unless the defendant perfects title by adverse
possession