Presumption of possession
Ramasamy
(Querist) 28 November 2011
This query is : Resolved
Dear Sir,
In a suit for declaration of title and for permanent injunction from disturbing his peaceful possession against two defendants, the second defendant set exparte, but in fact the second defendant only holding the possession of the suit property even prior to the filing of this suit and to till date.
But the said second defendant has no title in his favour.
At last after full trial the suit was decreed by declaring the plaintiff’s title and granted a permanent injunction thereby restraining the defendants from causing disturbances to the plaintiff’s possession.
The trial court while granting injunction, confirming the possession of the plaintiff by applying decades-old Madras HC judgment which held that, “So far as the question of possession is concerned, it is indisputable that if the plaintiff is entitled to immovable property and possession thereof and the property sued for is such that actual or effective enjoyment of it by taking produce is not possible, possession will be presumed to be with the person who has the title”.
But the said second defendant is occupying the suit property since 1974 to till date.
Under these circumstances whether the said second defendant can do the following acts:
(a) Whether he can claim adverse possession on the suit property; and
(b) Whether he can seek for cancellation of the said decree reg. with respect of confirming the plaintiff’s possession on invoking presumption of possession follows tittle;
Kindly advise me.
Thanks in advance to the learned Experts.
M/s. Y-not legal services
(Expert) 28 November 2011
your goodness the second defendant not contested the suit's trial..
if he came to contest the suit mean there will be a chance to you for loose your case.,
because without not in possession how you prayed to not to disturbing your peaceful enjoyment?
i think he/she may not be proper legal knowledge about the suit procedures. how ever at the time of execution you will get problem., he wil rush to court for setting aside the exparty decreee..
then case will restart., finally documents ans evidences will decide your case.
Sailesh Kumar Shah
(Expert) 28 November 2011
I also agree with expressed opinion of Mr.tom.
Ramasamy
(Querist) 29 November 2011
Dear Sirs,
I convey my heartiest thanks to all the learned Experts who presenting their valuable opinions on my queries.
