Onus of proof in suit under article 64

Querist : Anonymous (Querist) 13 November 2020 This query is : Resolved
This is from the judgement of court on article 64 of limitation act but I am not able to understand the correct meaning.

"The section 6 of specific relief act does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one."

I just wish to know that as a plaintiff onus to proof in terms of what will lies on whom?

Obviously onus to prove possession on plaintiff but what about the onus to prove title?

Is it the defendant who is in possession of the property has onus to prove title and only when defendant proves his title then plaintiff have to prove better title than defendant ?

OR

Irrespective of the fact that defendant proves title or not the plaintiff will have to prove both possession and title to the property?

OR

How it should happen for plaintiff to succeed?

Thank you

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Isaac Gabriel (Expert) 13 November 2020
Possession could be establshed by patta/ chitta, tax recepts , revenue records, address proofs, and evidences by neighbours.The court takes into cignizance about the proof by the defendant while deciding.

Querist : Anonymous (Querist) 13 November 2020
Thank you for the reply.
Our suit is based on previous possession and defendant dispossed us and transferred the property on the name of defendant in collusion with brothers of plaintiff. The title of plaintiff is not clear because suit property was in the name of uncle of plaintiff as a karta of family and it was admitted in family settlement (no written agreement) and plaintiff was in possession of property for more than 12 years on behalf of the family. This family settlement was accepted by the parties in a statement to police before dispossession and defendant was aware of the fact but plaintiff was not ready to sell property to defendant for which brothers of plaintiff had already taken money from the defendant and hence they dispossessed the plaintiff and misplaced the file of property from revenue record and bribed the revenue authority and shown uncle of plaintiff as sole owner.

Relief claim is possession and cancellation of sale and no declaration of title.

Defendant sold property to third party in violation of injunction and they both have refused to accept delivery of copy of application under 39 2a and hence the it is likely to go ex parte.

Reason behind asking above question is that in ex parte there is no question of proving of title by the original defendant even though he has disputed the title of plaintiff and claimed title in written statement

Can plaintiff succeed without the declaration of title only based on previous possession if there is no defendant to prove his title in ex parte?

Advocate Bhartesh goyal (Expert) 13 November 2020
Alhough suit Proceeded ex-parte even than plaintiff has to prove title and possession.Sometimes court dismisses ex-parte suit due to failure to prove facts by plaintiff.

Querist : Anonymous (Querist) 13 November 2020
Thank you for your valuable reply.
I am party in person.
It means that apart from the possession the plaintiff has to prove that transfer in favour of defendant is illegal. Only proving possession will not work.

Thank you.

Advocate Bhartesh goyal (Expert) 13 November 2020
Yes, you have to prove all facts & allegations mentioned in Plaint. You need not to prove in case any fact or allegation If defendant admits in w.s.

Querist : Anonymous (Querist) 14 November 2020
Thank you for the reply.
I understood that we can not succeed on the mistakes of defendant and we have to succeed on our strength.
We have very good evidence of possession and that transfer in favour of defendant is illegal even without considering the dispossession of plaintiff as transfer of title in favour of defendant is done via unregistered sale deed and during pendency of proceedings under 145 of crpc.

Only one confusion is there that title of plaintiff is not clear because property is mutated in the name of uncle of plaintiff and plaintiff claim his title from the family settlement and record of revenue authorities is lost (no record available) and transfer effected by showing uncle of plaintiff as full owner and hence is it necessary for plaintiff to ask for declaration of title or without declation of title, plaintiff can prove his title as co owner just by producing documents in support of his claim of family settlement?

P. Venu (Expert) 14 November 2020
Though lengthy, the posting is unable to highlight the material facts or the cause of action.

Rajendra K Goyal (Expert) 15 November 2020
Full case file has to be referred, discuss in detail with your lawyer.

J K Agrawal (Expert) 16 November 2020
I suppose Exparte is 39 2A Proceedings where proof of title not required. It is contempt proceeding.

Possession more than 12 year? how long?

If it is more than 20 year, you are owner of the property acquiring right by prescription and you are having "Propritory Title" over the property.

If possession is between 12 to 20 year, you are having 'Possessive Title' and you can not be evicted forcibly.

If you are having possession for less then 12 year and you entered into possession right fully you can not be evicted forcibly but if the possession is wrongful, as a trespasser, you can be evicted forcibly.

Now question comes to procedure.

If you go under section 6 of Specific Relief Act you are to prove possession only (Not Possessive Title or Proprietory Title).

If you are not under section 6 but it is a regular suit you are to prove Possessive Title against third party.

If you are not under section 6 but it is a regular suit you are to prove Possessive Title as well as Proprietory Title against true owner of Property.

Querist : Anonymous (Querist) 16 November 2020
Thank you to all the expert for your valuable time to this lengthy query.

May god bless you.

Rajendra K Goyal (Expert) 18 November 2020
Seems author satisfied, query may be treated as resolved.