In factual matrices involving property transfer, it has been observed in the instant second appeal that a mere possession of property does not equate with actual ownership. Arising from a judgment and decree dated 28th February, 2019, passed by the learned Additional District and Sessions Judge, the present appeal was before the quorum of Harish Tandon J.and Kausik Chanda J. in the matter of Manik Lal Jaiswara v Manju Devi [S.A.T. 250 OF 2019].
The parties were related to each other which was discernible from the facts pleaded in the plaint. The plaintiff no. 1 is the father of the defendant no.1 and father-in-law of the defendant no. 2 whereas the remaining plaintiffs are the sons and daughters of the plaintiff no. 1. The plaintiffs jointly filed a suit for declaration that the deed of conveyance being no. 1774 for the year 2009 registered with Additional Registrar of Assurances III in favour of the first defendant is fraudulent, invalid and inoperative. The second relief claimed in the plaint further relates to a declaration that the defendants did not acquire any right, title and interest on the basis of the purported deed of conveyance.
In the instant case, the plaintiffs admitted to have executed the purported deed of conveyance voluntarily but sought for declaration of such deed to be void on the ground of fraud and misrepresentation The misrepresentation appears to have taken a front seat and the fraud ancillary thereto. It is not in dispute that the consideration mentioned in the purported deed of conveyance was received by the plaintiffs and a logical inference can be drawn that the same was duly appropriated in due course. The evidence was lacking on the alleged fraud or misrepresentation which could be deciphered from the findings recorded.
The Apex Court in case of Maria Margarida Sequeria Fernandes and Others Vs Erasmo Jack de Sequeria (Dead) through L.Rs. reported in 2012 (5) SCC 370 was referred to by the bench wherein it is held that in an action for recovery of possession of immovable property the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right.
The possession is an incident of the ownership and is capable of being transferred to any person and such possession does not create a right but the constructive possession remains with the owner. Mere possession in the property how long it be, does not ipso facto establish a right into a person allowed to continue in possession by a title holder except a case of adverse possession is claimed and proved by cogent evidence. The relationship of the plaintiff with the defendant/appellant is also one of the relevant factor when the permission to continue in possession is evident and the moment such permission is revoked no impediment can be seen against the title holder to recover the possession.
The court pronounced judgment that, “It is beyond cavil of further discussion that the title over the property has been established and proved by production of the sale-deed which the appellant could not get away therewith as they claim that the same was to secure the loan and it was intended that the title holder would revert the title by executing a deed of gift in future is failed. We, thus, do not find that the findings of the Appellate Court can be faulted with warranting interference by us in the instant second appeal.”
