Adverse Possession and Burden of Prorof

 

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TOPIC : ADVERSE POSSESSION INTRODUCTION : (1)

In societ society y eever veryth ythin ing g ccann annot ot be covere covered d u unde nderr the the umbrel umbrella la of

govern gov ernanc ance, e, disci discipli plines nes and ord order er.. Some thi things ngs must must be preced preceded ed by spirituality which is higher, lofty, pure and divine thinking. It is just like Directive principles of state policy prescribed in Part IV of the constitution. The Article Articless in thi thiss par partt of the con consti stitut tution ion are cru crucia cial, l, import important ant and sign signif ific ican ant. t. Bu Butt the the ar arti ticl cles es ar aree no nott ju just stif ifia iabl ble. e. Th Thee la law w of ad adve vers rsee possession has to be viewed from the angle of welfare and charity. charity.

(2)

In recen recentt judgm judgment ent Hon'b Hon'ble le Suprem Supremee Court has shown repuls repulsion ion to

the adverse possession of law just because India has spirituality, charity and phila hilant nthr hrop opy y. Ba Basi sica call lly y thes thesee idea ideass gi give ven n to us by Verse erse 1. 1.4. 4.14 14 of Briahadaranyak Upnishad reads in Sanskrit as “Sarve Bhavantu Sukhina : Sarv Sa rvee sa sant ntu u Ni Nira rama maya ya:: Sa Sarv rvee Bh Bhad adra rani ni Pas Pashy hyan antu tu : ma ka kasc schi hitt dukh dukh bhagbhavet”. It means “May happiness, prosperity shower on all, may good health inform all, may all see auspiciousness, No human being may suffer. The lofty altruism is uttered by sages wishing w ishing banishment of all sorrows, all human sufferings and deficiencies and uplifting of all souls spiritually. These thoughts wished by sages may become a reality if no one of us natches wealth from others, if no one dispossesses another of his rightfully owne ow ned d land land an and d no on onee ev evic icts ts a ri righ ghtf tful ul owne ownerr fro from m hi hiss hous house. e. Bu Butt unfortunately humans are greedy, cruel and sadist and that is the cause of all civil litigation. If spirituality envelopes each of us then greed, cruelty and sadism will vanish from our mind minds. s. On the other hand there should should be

 

..2.. control on the persons who are irresponsible and senseless regarding their rights, claims and interest in property. On this back ground the right of adverse possession is to be viewed.

(3)

Law is nothing but an abacus which contains all rules, regulations,

rights and liabilities. Limitation Act is one of the important laws which prescribes the limitation period in which the things should have been done. Object of law of limitation is to make people sensible about their right to claim interest in the property within stipulat stipulated ed and prescr prescribed ibed period. One should not sleep over his right for years together. If Law does not fix time limit for claiming rights or interest in property then there may be a chaos.

(4)

The rationale for adverse possession rests broadly on the

consideration that title to land should not long be in doubt, the society will benefit from some one making use of land the owner leaves idle and that that person who come to regard the occupant as owner may be protected. The maxim that law and equality does not help those who sleep over their rights is invoked in support of prescription of title by adverse possession. In other words, the original title holder who neglected to enforce his right over the land cannot be permitted to re-enter the land after a long passage of time. A situation lasting for a long period creates certain expectations and it would be unjust to disappoint those who trust on them. (5) (5)

Th Thee co conc ncep eptt of ad adve vers rsee pos posse sess ssio ion n co cont ntemp empla late tess a h hos osti tile le po poss sses essi sion on

i.e. The possession which is expressly or impliedly in denial of the title of the true owner to the knowle knowledge dge of the true owner and claim claiming ing the title as

 

..3.. an owner in himself by the person claiming to be in adverse possession. In othe otherr wo word rdss su such ch ho host stil ilee po posse ssess ssio ion n shal shalll no nott be secr secret et an and d pers person on in adverse possession must not acknowledge the title of the true owner but has to deny the title of the true owner owner.. The adverse possession must be capable capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real real owner of the former's hostile action action.. This shows that the posse po ssessio ssion n mus mustt be nec vi nec clam nec precario i.e. In continuity, in

publicit pub licity y and in extent. This shows shows that permis permissive sive poss possession ession is not hostile host ile posse possession ssion.. So also mer meree long posse possession ssion eve even n for 100 yea years rs is not adverse possession. 

Conc Co ncep eptt and and relev elevan antt prov provis isio ions ns of Adve Advers rsee poss posses esio ion n in reference to the Law of Limitation :  

(6)

Section 3 of the Limitation Act says that Court will not take

cogn co gniz izan ance ce of any any su suit it,, wh whic ich h is ba barre rred d by li limi mita tati tion on even even if issu issuee of limitation is not taken as a defence. Thus, the law of limitation bars remedy but not the right. But section 27 of Limitation Act is an exception to the general principle of law of limitation and origin of concept of Adverse poss po sses essi sion on.. It re read adss as as,, if a pe pers rson on fail failss to fi file le su suit it fo forr reco recove very ry of possession, within a period of limitation, his right to recover the possession of that property also extinguishes. If such situation occurs, a true owner extinguishes his ownership over the property. But at the same time property can not left owner less. It must be in name of any other person or any other person must be entitled to have right over it. This situation gives origin to the concept of adverse possession. If any person possesses any property in

 

..4.. adverse to the interest of true owner and true owner fails to file a suit for recovery of possession within a period of limitation, then the person in possession becomes owner of property by way of adverse possession.

(7)

In the case of Karnataka Board of WakfWakf- Vs.- GOI ( 2004) 10 S SCC CC

779,, it has been observed by Hon'ble Apex Court that, in the eye of law, an 779 owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts rights over it and the person having title omits or neglects to take legal action against such person for years yea rs toget together her.. In the cas casee of  Amrendra Pratap Singh vs. Tej Bahadur Praj Pr ajap apat ati, i,(2 (200 004) 4) 10 SC SCC C 65 65,,  it ha hass been een he helld that hat, the pr proc oces esss of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. Thus, a method of gaining legal title to real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by law is a adverse possession. In order to elucidate the concept of adverse possession, we have to consider Art 64 and 65 of the limitation Act Act..

(8) (8)

Th Thee llaw aw o on n aadv dver erse se p pos osse sessi ssion on is ccon onta tain ined ed in th thee Ind India ian n Lim Limit itat atio ion n

Act. Article 65, Schedule I of The Limitation Act prescribes a limitation of 12 years for a suit for possession of immovable property or any interest therein based on title. It is important to note that the starting point of limi limita tati tion on of 12 ye year arss is co coun unte ted d fr from om the the po poin intt of ti time me “w “whe hen n th thee possession of the defendants becomes adverse to the plaintiff”. Article 65 is

 

..5.. an indep independen endentt Article applicab applicable le to all suits for posse possession ssion of immova immovable ble property based on title i.e., proprietary title as distinct from possessory title. Article 64 governs suits for possession based on possessory right. Twelve years from the date of dispossession is the starting point of limitation under Article 64. Article 65 as well as Article 64 shall be read with Section 27.

Necessary elements to constitute adverse possession. (9) (9)

Th Thee ne nece cessa ssary ry eele leme ment ntss of aadv dver erse se p pos osse sessi ssion on aare re d dis iscu cuss ssed ed iin n de deta tail il

as infra -

1.

Property :- There must be certain property, which may be movable

or immovable.

2. 

Nature of possession required over the property to constitute

adverse possession :- In order to constitute adverse possession, there must be actual possession of a person claiming as of right by himself or by persons deriving title from him. It is not sufficient to show that some acts of possession have been done. The possession required must be adequate in continuity,, in publicity and in extent to show that it is adverse to the owner continuity owner.. In other words the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation.

3.

Possession mu must b bee co continuous:- To constitute adverse possession,

poss po sses essi sion on mu must st be co cont ntin inuo uous us.. Bu Butt it is not not nece necess ssar ary y to esta establ blis ish h possession of every moment of the requisite period.

 

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4.

Po Poss sses essi sion on m mus ustt be w wit ith h in inte ten ntion tion o off ou oust ster er of tthe he rea reall ow owne nerr :-

Animus possidendi necessary. Possession does not become adverse when the intention to hold adversely is wanting. Person holding property by way of adverse possession must publish his intention to deny right of the real owne ow nerr. Hi Hiss inte intent ntio ion n of ad adve vers rsee po poss sses essi sion on mu must st be with within in no noti tice ce,, knowledge of the real owner. If there are circumstances showing open and notorious act of taking possession, knowledge may be presumed. Where the assertion of right is secret and not open, the possession can not be held to be adverse. In tthe he ccase ase of of Bhimrao  Bhimrao Dnyanoba Patil Vs State of Maharashtra, Maharashtra,  2003 (1) Bom. L.R. 322; 2003(1) All MR 565 ; 2003 (2) LJSoft 131, 131, it  it has been held that, unless enjoyment of the property is accompanied by adverse animus, mere possession for a long period even over a statutory period, would not be sufficient to mature the title to the property by adverse possession.

5.

Dispossess ession of the true owner :- In reference to this point the term

di disp spo osse ssessi ssion

and

disc scon onttinu inuan ancce

of

po poss sses essi sio on

are are

rele releva vant nt..

In

dispossession a person comes in, and drives out another from possession. In discontinuance of possession, the person in possession goes out and is foll followe owed d into into po posse ssessi ssion on by othe others. rs. To co cons nsti titu tute te di disc scon onti tinu nuan ance ce of possession, there must be dereliction by the person who has right and actual possession by another, whether adverse or not.

6.

Po Poss sses essi sion on of an anot othe herr ess essen enti tial al for for d dis ispo poss sses essi sion on :- “Dispossession”

implies the coming in of a person and driving out of another person from possession. “Dispossession” implies ouster and the essence of ouster is that

 

..7.. the person ousting is in actual possession of the property. The mere finding that the persons are not in possession of the disputed property does not decide the question, whether there was dispossession. Dispossession occurs only when a person comes in and drives out another from possession.

What acts do not amount to dispossession :(10) (10) To co cons nsti titu tute te dis ispo poss sses essi sion on,, th thee ot othe herr si side de must must ta take ke and and keep keep posse po ssessio ssion n wit with h the int intent ention ion to acq acquir uiree the proper property ty for himsel himself. f. Acts between neighbours, occasional acts of interference which are naturally explained by the desire of the person doing them to protect their own property do not amount to dispossession.

1.

Pe Perm rmis issi sive ve p pos osse sess ssio ion n do does es n no ot am amou ount nt tto o disp dispos osse sess ssio ion n :- A true

owner is neither dispossessed nor does he discontinued his possession, if a third person takes possession with his permission. It is however true that, if the person in permissive possession changes his animus and continues to hold with an open and continuous assertion of a hostile title, his possession becomes adverse to the owner. A person put into the occupation of property, or person put into permissive possession of that property property,, does not occupy it as of right. In such cases, the owner of the property is properly considered to be in possession. An owner who accommodates a poor relation in his premises, does not necessarily part with the possession of his property occupies by such poor relation. The possession of such poor relation is the constructive possession of the owner and the later may retain and continue to ex exer erci cise se his his pr prop opri riet etar ary y an and d po poss sses esso sory ry ri righ ghts ts so as to rebu rebutt th thee presumption that he has parted with the possession of the property and prevent the operation of the statute of limitation. If an owner allows his

 

..8.. gardener, or servant, or work man employed upon his estate, to live in a cottage thereon, rent-free, their possession is his possession, however long it may be continued. If an owner, for motives of kindness or charity, allows a relative or friend to occupy a cottage and land upon his estate, and the owner, during such occupation, continues to exercise acts of ownership over the land so occupied, e.g., he repairs the building, or cuts down plants, trees, or causes drains to be made through the land or quarri quarries es away stone stone,, all such acts of dominion do not show that he had ever parted with the posses pos sessio sion n of his pro proper perty ty,, alt althou hough gh he had all allowe owed d anothe anotherr per person son to occupy it.

2.

Mere non-user by the owner is not dispossession :- The meaning of

the word “dispossession” is well settled. A man may cease to use his land because he cannot use it, since it is under water. He does not, thereby, discontinue his possession. Constructively his possession continues until he is dispossessed and upon the cessation of the dispossession before the lapse of the statutory period, constructively it revives. Dispossession must be actual and the person dispossessing must have physical control and exercise acts of ownership, which would mark hi him m as oc occcup upiier er.. He mu must st po possse sess ss the desir esiree to posse ssess. ss. Ac Actts of dispossession must be such as are inconsistent the character of the property possessed and the purpose for which it is used by the owner. Only slight acts of user on the part of the owner may, in certain circumstances be sufficient to preserve his possession unless such acts are inconsistent with the positive acts of exclusive ownership exercised by the trespasser. There is no dispossession until someone else takes possession.

 

..9.. (11) (11)

It be rememb remembered ered that the plea of Adverse Adverse Posses Possession sion is always always

based on facts which must be ascertained and proved. A person who claims Adverse Possession must show on what date he came into possession ? What was the nature of the Adverse Possession ? Whether the factum of his possession was known to the then claimant ? And how long his possession con onti tinu nued ed ? He mu must st also also sho how w that hat hi hiss poss posseessi ssion was was ope open and and undisturbed. Unless plea of Adverse Possession has been specifically raised in the pleadings, put in issue and then cogent and convincing evidence led on the multitude on the points and opportunity to refute, the case made out by the plaintiff availed of by the defendant, plea of Adverse Possession cannot be allowed to be flung all of a sudden as a surprise for the first time in appeal.

PRINCIPLE OF TACKING (12)

To ttaack m meeans ““tto ffaasten”, ““tto st stitch to together”, “t “to an annex” or or

“to append”. append”. In view of the princi principle ple of tacki tacking ng if someon someonee derives a title from a person in adverse possession he can tack the period of adverse possession enjoyed by earlier person so as to complete his title as an owner by adverse possession for a total period of 12 years. Thus, a person can

usef us eful ully ly cl clai aim m for for the the pu purp rpos osee of his his ad adve vers rsee po poss sses essi sion on ev even en th thee advers adv ersee pos posses sessio sion n of his pr prede edeces cessor sor from from who whom m he der derive ivess right right. However, a trespasser cannot tack adverse possession of earlier trespasser, since second trespasser does not derive possession from earlier trespasser. Accordingly, Five Judge Constitution Bench of the Supreme Court has held in the case of Gurbinder Singh & another Vs. Lal Singh & another (AIR 1965 SC 1553).

 

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Incidents in respect of adverse possession/no adverse possession.

(13)) Whe (13 Where re the ow owner ner re revok voked ed the llice icense nseee by issu issuee of noti notice, ce, but but did not not take steps to evict him, mere service of notice does not create any cloud on the title of the owner and no inference can be drawn that the owner intended to abandon his title in the absence of any evidence to show that the licensee claimed to be in possession in his own aright or against the wishes of the owner (AIR 1979 All.5 All.54). 4).

(14) (14)

As p per er L Law aw o off Pl Plea eadi ding ngss by M Mog ogha ha tthe he aadv dver erse se p pos osse sessi ssion on iiss one one of

the defence. The period limitation is 12 years against private land and 30 years against Government land and starts from the date when the possession of the defendant becomes adverse to tthe he plaintiff. For adverse possession it is necessary for the person to admit the title of the real owner and to establish his open and hostile possession without any interruption. It is not sufficient to plead that a party has been in adverse possession for 12 years, it sh shou ould ld be de defi fini nite tely ly al alle lege ged d ho how w an and d wh when en ad adve vers rsee po poss sses essi sion on commenced. Such as the defendant has dispossessed the plaintiff and has been in possession continuously ever since, or the defendant has been open and continuously in possession for more than 12 years to the knowledge of the plaintiff, or the defendant has been in possession continuously for more than 12 years so openly that either the plaintiff was aware of his possession or ought to have been aware had he exercise due diligence.

(15 (15)

The leg legal al po posi sittion ion as reg regaard rdss the acq acqui uisi siti tio on of tit itle le to la lan nd by

adverse possession has been succinctly stated by the Judicial Committee of

 

..11.. the Privy Council Council in Perry vs. Cli Clissold ssold (1907) (1907) AC AC 73, at 79: “It cannot cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly perfe ctly good title again against st all the world but the rightful owner. owner. And if the rightful owner does not come forward and assert his title by the process of law law wi with thin in the the pe peri riod od pr pres escr crib ibed ed by th thee pr prov ovis isio ions ns of th thee stat statut utee of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.” (16) (16)

Ad Adv ver erse se po poss sseess ssio ion n of the the la land nd is the pro process cess by whic which h ti titl tlee to

another’s anot her’s land is acqui acquired red without his permission. permission. Adv Adverse erse Possession is a possession which is opposed to once interest of the real owner of the property.. It is possession in denial of the title of the tr property true ue owner.

(a)

Actual :- Adverse possession consists of actual occupation of the

land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property—for example, planting and harvesting crops or cutting and sell sellin ing g timb timber er—i —ind ndic icat ates es actu actual al po posse ssessi ssion on.. In some some stat states es acts acts th that at constitute actual possession are found in statute.

(b)

Open a an nd N No otorious ::-- An adv advers ersee pos posses sessor sor must pos posses sesss lan land d

openly open ly fo forr the the en enti tire re wo worl rld d to se see, e, as a tr true ue owne ownerr woul would. d. Secr Secret etlly occupying another’s lands does not give the occupant any legal rights.

 

..12.. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious notorious possessio possession n of all. The owner must have actual knowl knowledge edge of the adverse use, or the claimant’s possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.

(c)

Exclusive ::- Adverse possession will not ripen into title unless the

claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.

(d)

Hostile ::-- Possession must be hostile, sometimes called adverse, if

title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner’s rights. One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession.

 

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(e)

Cont Contiinuo uous us & U Uni nin nterru errupt pteed : –  – All elements of adverse possession

must be met at all times through the statutory period in order for a claim to be successful. The statutory period, or “statute of limitations”, is the amount of time the claimant must hold the land in order to successfully claim “adverse possession”.

What is adverse possession?

 

(17)) Adv (17 Adverse erse po posse ssessi ssion on is a met method hod,, roote rooted d in commo common n law law,, of obtainin obtaining g title to land through use. The common law rules for adverse possession have been codified under both federal and state statutes. A typical statute allows a person to obtain title to land from the actual owner simply by using the land. The use must be open for all to see. An example of openly using land for the purposes of adverse possession would be if your neighbor built a fence on your land with the intention of taking the property, paid your property taxes, and though you knew about it you did nothing. If this continued for a period of time set by state law, your neighbor may be able to claim this property as his/her own. The theory is that by not disputing your neighbor’s use of your property through a lawsuit, you, as the actual owner have abandoned your rights to the property. Gaining title to land through adverse possession requires strict compliance with the law, and can have dramatic impact upon land ownership rights. The plea of adverse possession is mixed question question of law and fact. It is well settled law that bef before ore a party can succeed in establishing title on the basis of adverse possession, a plea to thatt tha

eff effect ect must be speci specific ficall ally y raised raised.. It is observed observed by Hon' Hon'ble ble Apex Apex

courtt that cour that,, “ It would be imp imperativ erativee that one who claims claims posse possession ssion must give all such details as enumerated hereunder hereunder.. They are only illustrative and

 

..14.. not exhaustive. a) who is or ar aree the owner or owners of th thee property property;; b) title of the property; c) who is in possession of the title documents d) identity of the claimant or claimants to possession; e) the date of entry into possession; f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method; g) sintake case the property what is t,theli consideration; if he ha has ta ken n he it purchased on ren ent, t, ho how w property, mu much ch is, the th e ren ent, lice cens nsee fe feee or le leas ase e amount; h) if taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed; i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;  j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and k) basis of his claim that not to deliver possession but continue in  possession.” (2 (22) 2)

Me Mere re lo long ng p pos osse sess ssio ion n of de defe fend ndan antt for a pe peri riod od o off more more th than an 1 12 2

years without intention to possess the suit land adversely to the title of the plaintiff and to latter's knowledge cannot result in acquisition of title by the defendant to the encroached suit land. A possession is adverse only if in fact one holds possession by denying title of the lessor or by showing hostili hostility ty

 

..15.. by act or words or in cases of trespassers as the case may be as against lessor or other owner of the property in question.

(23) Recently, in the case of He Hema majji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and others, Hon'ble Supreme Court observed thus: "Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest dish onest person who had illegally illegally taken possess possession ion of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law.. This in substance would mean that the law gives seal of approval to the law illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank ran k tre trespa spasser sser and com compel pelli ling ng the own owner er to loose loose its pos posses sessio sion n only only because of his inaction in taking back the possession within limitation. The same view was expressed by Hon'ble Apex Court in the case of State of Haryana Vs. Mukesh Kumar and others decided on 30.09.201 30.09.2011. 1.  

Conclusion :(24)) Adv (24 Adverse erse po posses ssessio sion n is a one of the meo meotho thod d for acq acquir uiring ing title title to the the real property by possession for a statutoty period under certain conditions. The said period is governed by statute. Under this doctrine the person may establish his ownership against the true owner after the fulfillment of all

 

..16.. legal requirements. The owner of the property must have actual actual knowledge knowledge of adverse possession. The word contin continuity uity means regul regular ar uninterrupted o off the occupancy occupancy land land.. As per the Arti Article cle 6 and 65 of the Limitati Limitation on Ac Act, t, the pres prescr crib ibed ed pe peri riod od is 12 ye year arss an and d the the pr pres escr crib ibed ed pe peri riod od in case case of Government Govern ment iiss 30 years years..

The star starting ting p point oint o off limit limitation ation begin beginss from the

expression of hostile animous animous amounting to d denial enial of title of the the real owner to his knowledge. The onus is lies on the party to set up the title on the basis of adverse possession. possession. Presumption and probabilities ccannot annot be substituted for the evidence.

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..17..

BURDEN OF PROOF (1) (1)

Pa Part rt II IIII and and ccha hapt pter er VII VII to IX of th thee Ind India ian nE Evi vide denc ncee Ac Actt d dea eall w wit ith h

the burden of proof. Section 2 defines “proved” by stating that a fact is said to be proved when after considering the matter before it the court either believes it to exist or considers its existence so probable that a prudent man ought oug ht unde underr the cir circum cumsta stance ncess of the parti particul cular ar

cas case, e, to act upon upon the

suppositi supp osition on that it exist exists. s. Theref Therefore ore the Proof mean meanss that “matte “matter” r” from which the court either believes the existence of a fact or considers its existence so probable that a prudent man should act upon the supposition that it exists. Burden to prove a fact is o on n the person who asserts it .

(2)

The re ressponsi sib bility of producing the evidence in court is called

burden of proof. Section 101 to 114 of Evidence Act deal with burden of proof. The burden of proof play very important role in parties. In the Indian Evidence Act, there are 5 rules which decides the burden of proof. They are provided in Section 101 to 105 of Evidence Act as under :

1. He who pleads must prove (S.101) 2. He who files must prove (S.102)  3. He who wish to prove prove a particular fact must p prove rove (S.103) 4. He who who wish tto o pr prove ove the main fact has to prove prove (S.104) 5. He who claims exceptions has to prove (S.105)

(3) (3)

Se Sect ctio ion n 10 101 1 at atte temp mptts to d deefine fine b bur urde den n of p pro roof of..

Thi hiss prov provis isiion

proceeds to say in positive terms as to the person on whom burden of proof lies whereas whereas section 10 102 2 puts it in negative ter terms. ms. These two prov provision isionss

 

..18.. deal with a general situation and lay down general propositions, whereas sectio sec tion n 103 to sec sectio tion n 11313-B B dea deals ls wit with h spe specif cific ic situat situation ionss and can be viewed as exceptions to the general rule. While dealing with the specific situations, the provisions also mention about the presumptions which the court may or shall presume as well as what would be conclusive proof.

(4) (4)

Ge Gene nera rall ru rule le ttha hatt a pa part rty y wh who o de desi sire ress to mo move ve tto o the the Co Cour urtt mu must st

prove all the fact necessary for that purpose (Ss. 101-105) is subject to two exceptions: 

[a] [a] He wi will ll no nott b bee rreq equi uirred to prov provee ssuc uch h ffac acts ts as are are sspe peci cifi fica call llyy within the knowledge of the other party (S. 106); and [b] [b] He will not be req requi uirred to prov provee so much of his alle allega gati tion onss in respect of which there is any presumption of law (S. 107-113), or in some cases, all fact (S. 114) in his favour.

(5 (5))

Th Thee bu burd rden en o off pr proo ooff li lies es o on n th thee pa part rty y wh who o su subs bsta tant ntia iall lly y asse assert rtss th thee

affirmativ affir mativee of the issue and not upon the par party ty who denie deniess it. This rule of convenience has been adopted in practice,not because it is impossible to prove a negative,but because of negative does not admit of the direct and simple sim ple pro proof of of whi which ch the affi affirma rmativ tivee is cap capabl able. e.

Mor Moreov eover er,, it is but

reasonable and just that the suitor who relies upon the existence of a fact, should be called upon to prove h his is own case. In the application of this rule, regard must be had to the substance and effect of the issue, and to its grammatical from, for in may cases the party, by making a slight alteration in the drawing of his pleading, may give the issue a negative or affirmative form, at his pleasure.

 

..19.. (6) (6)

Th Thee st stri rict ct m mea eani ning ng o off th thee te term rm b bur urde den n of p pro roof of (on (onus us pro proba band ndi) i) is is

this, that if no evidence is given by the party on whom the burden is passed the issue must be found against him. The expression burden of proof really mean me anss tw two o diff differe erent nt thin things gs.. It me mean anss (1 (1)) some some ti time mess th that at th thee part party y is required to prove an allegations before judgment is given in its favour. (2) It also means that on a conte contested sted issue one of the two contend contending ing parties has to introduce evidence. evidence. In criminal cases it is accepted princi principle ple of Criminal Jurisp Jur isprud rudenc encee tha thatt Bur Burden den of pro proof of is always always on prosec prosecuti ution, on, it never never changes. This conclusion is derived from fundamental principle that, the accused accu sed should be presu presumed med to be innocent till he is proved guilty beyond reas reason onab able le do doub ubtt an and d accu accuse sed d ha hass go gott ri righ ghtt to ta take ke bene benefi fitt of some some reasonable doubt. doubt. If the accused succeeds in creatin creating g reasonable d doubts oubts or shows preponderance of probability in favour of plea, the obligation on his part gets gets dischar discharge ge and would be entitl entitled ed to be acquitte acquitted. d. There are many cases in which the party on whom the burden of proof in the first instance lies may shift the burden to the other side by proving facts giving rise to a presumption in his favour favour..

(7) (7)

Th Ther eree ar aree ttwo wo ssen ense se iin nw whi hich ch th thee word word bur burde den n of pr proo ooff is use used d (a (a))

Burden of proof arising as matter of pleading i.e. called the legal burden and it never shift. (b) Burden of proof which deals with the question as to who has first to prove a particular fact and is called the evidential burden and it is shift from one side to other. It is well settled that (1) Permissive presumption i.e. presumption of fact (Natural) (2) Compelling presumption i.e. presumption of law (Rebuttable/Artificial) (3) Irrebuttable presumption of law i.e. conclusive proof (Mixed law and fact).

 

..20.. (8) (8)

The evidence in Civil litigation can be very well divided into

documentary and oral evidence and, therefore, the oral evidence which is nearer to documents is acceptable in deciding the case. Many factors such as “Character” (Section 52 of the Evidence Act) is irrelevant in Civil case exce ex cept pt in case casess of da dama mage gess wh whic ich h af affe fect ct the the am amou ount nt to be gran grante ted. d. However, opinion (Section 49) is relevant to prove the usage while as (Section 47) opinion of the handwriting expert become relevant in Civil cases. Section 40 of the Evidence Act read with the Section S ection 11 of the C.P.C. C.P.C. makes the previous previous Judg Judgment ment relev relevant ant as it amounts to resjud resjudicata icata.. Then entries in the public record made in performance of duty (Section 35) and entries made in books of account made during the transactions or kept regularly in the course of business (Section 34 of the Evidence Act) are some of the provisions which are important in the determination of Civil cases. In the same way the statement in maps, charts made by authorities are also relevant.

(9) (9)

Wha hatt is called burden of proof on the pleadings sho hou uld not be

confus con fused ed wit with h the bur burden den of add adduci ucing ng evi eviden dence ce whi which ch is descri described bed as shifti shi fting. ng. The bur burden den of proof on the plea pleadin dings gs never shi shifts fts,, it always always remainss constan remain constant. t. The init initial ial burde burden n of proving a prima faci faciee case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaint plaintiff. iff. As the case cont continues inues to develop, develop, the onu onuss may shift back ag again ain to the plaintif plaintiff. f. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other other..

 

..21.. (10) (10)

Wh Wher eree bot both h par parti ties es ha have ve al alre read ady y pro produ duce ced d whate whateve verr evi evide denc ncee the they y

had, the question of burden of proof ceases to be of any importance; but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way will definitely vitiate the judgment.

(11)

Evidentiary admissi sio ons are not conclusiv sive proof of the fac facts

admitted and they may be explained or shown to be wrong but they do raise an estoppel and shift the burden of proof to the person making them or his representative-in-interest.

(12) (12)

Wh Wher eree the there re is an ad admi miss ssio ion n by a part party y the bu burd rden en of pr proo ooff sh shif ifts ts

and it is for the party making the admission to explain it away.

Burden of Proof and Onus of Proof – Distinction. 

(13)) The (13 There re is an ess essent ential ial di disti stinct nction ion be betwe tween en burden burden of proof proof an and d onus of proof; burden of proof lies upon a person who has to prove the fact and which whi ch ne never ver sshif hifts. ts. Onu Onuss of pro proof of shi shifts fts.. Suc Such h a shif shiftin ting g of on onus us is a continuous process in the evaluation of evidence.

(14)

The burden of proof in any particular case depends on the

circumstances in which the claim arises. In general the rule which applies is “Ei qui affirmat non ei qui negat incumbit probatio .” It is is an ancient ancient rule founded on considerations of good sense and should not be departed from without strong reasons.

 

..22.. (1 (15) 5)

Th This is ru rule le is ad adop opte ted d pri princ ncip ipal ally ly be beca caus usee it is but but just just tha thatt he who who

invokes the aid of the law should be the first to prove his case; and party because in the nature of things, a negative is more difficult to establish than an affirmative.

(1 (16) 6)

Bu Burd rden en of pro proof of mea means ns tw two o dif diffe fere rent nt th thin ings gs.. It means means so some meti time mess

that a party is required to p prove rove an allegatio allegation n before Judgment can be given in its its favo favour ur;; it also also me mean anss that that on a co cont ntes este ted d issu issuee on onee of th thee two two contending parties has to introduce evidence. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. This burden will, at the beginning of a trial, lie on one party, party, but during the course of the trial it may shift from one side to the other. At the end of a case when both the parties have led evidence and the the conflicting evide evidence nce can be weighed tto o determine which way the issue can be decided, the abstract question of burden of proof becomes academic.

(17)

The tteerm onus probandi, probandi, in its proper use, merely means that, if a

fact has to be proved, the person whose interest it is to prove it, should adduce some evidence, however slight, upon which a Court could find the factt he des fac desire iress the Court to fin find. d. It does not mean th that at he shal shalll call all conceivable or available evidence. It merely means that the evidence he lays before the Court Court should be suff sufficien icient, t, if not contr contradict adicted ed to form the basis of a judgment and decree upon that point in his favour.  

 

..23.. (18) (18)

In cr crim imin inal al ca case sess usua usuall lly y the the bu burd rden en of pro proof of is on the prose prosecu cuto torr

(expre (ex presse ssed d in the  Latin brocard ei incumbit probatio qui dicit, non qui negat , "the burden of proof rests on who asserts, not on who denies"). This principle is known as the presumption of innocence, and is summed up with "innocent until proven guilty,"

(19) (19)

Th Thee acc accus used ed has has to br brin ing g mer merel ely y thi thiss defen defence ce in th thee preci precinc ncts ts of

preponderance of probabilities. probabilities. This difference is bec because ause of the fact that it is very difficult to bring the negative evidence. Regarding the shifting of the legal burden, it is a fundamental principle of criminal jurisprudence that an accused is presum accused presumed ed to be innocen innocentt and the burden burden lies on the prosecution prosecution to prove the guilt of the the accused beyond reasonable doubt. And that burden never shifts but when the accused pleads insanity under Section 84, I.P.C., or any of the exceptions contained in I.P.C., like right of private defence etc., it is the accused that has to prove the same, though the degree of proof on the accused is not as high on the prosecution and it would be sufficient for him to satisfy satisfy the test of a stand standard ard of a prudent prudent man. In criminal criminal trial burden burd en of proof never shif shifts ts to the accused. If a reasonable exp explanat lanation ion is given by the accused it would be upto the court to acquit the accused.

(20) (20)

Wh When en iitt is th thee que quest stio ion n of an al alib ibi, i, it is is not not a case case,, of pr prov ovin ing g the

existence of circumstances bringing the case within any of the general exceptions or special exceptions of the Indian Penal Code, and therefore, Sectio Sec tion n 105 of the Ind Indian ian Evi Eviden dence ce Ac Act, t, does not appl apply y.

The sect section ion

applicable is Section 103 illustration of which specially mentions the case of plea of alibi and provides that it is for the accused who pleads alibi to

 

..24.. prove it. Burden to prove plea of alibi is on accused p pleading leading it it.. Burden is on the accused who is setting up defence of alibi to prove it but even so, the burd bu rden en of prov provin ing g the the case case ag agai ains nstt the the accu accuse sed d is on th thee pr pros osec ecut utio ion n irrespective of whether or not the accused have made out plausible defence. Onus is on accused to substantiate plea of alibi and make it reasonably probable. (2 (21) 1)

Pres Presum umpt ptio ion n is an in infe fere renc ncee of fa fact ct,, dr draw awn n fro from m ot othe herr kno known wn or

proved

facts.

There

are

tw o

classe sess

of

presum sumptions,

namely,

1) Presumptions of fact and 2) Presumptions of law. Presumptions of fact are inferences which the human mind naturally and logically draws from facts and they are generally rebuttable, unless they are conclusive. Sections 86 to 88, 90, 113A and 114 of the Evidence Act relate to presumptions of fact. Presumptions of law are arbitrary consequences expressly annexed by law to particular facts and may either be conclusive or rebuttable. Sections 41, 79 to 85, 89, 105, 107 to 113, 113B and 114A of the Evidence Act relate to presumptions of law. Presumptions other than conclusive presumptions are merely rules of evid evidence. ence. Sectio Section n 114 of the Eviden Evidence ce Act is of crucial importance to Courts and the Court may presume the existence of any fact which it thinks likely to have happened, having regard to(a) Common course of natural events, (b) Human conduct, and (c) Public and private business, -in their relation to the facts of the particular case. The illustrations to Sect Se ctio ion n 114 of the the Ev Evid iden ence ce Act ar aree im impo port rtan ant, t, th thou ough gh th they ey are no nott exhaustive. Section 114 plays a vital role in the matter of appreciation of evidence and arriving at conclusions.

 

..25.. (22)

The main rules of burden of proof  which   which are embodies in Section

101 to 104 could be stated as under :[1] One who ass assert ertss ha hass to prove prove his ass assert ertion ions. s. [2] [2]

As Asse sert rtio ions ns mus mustt be abo about ut po posi siti tive ve fact fact an and d not of nega negati tive ve facts or events which did not happen.

[3]

If law g give ivess pr presu esumpt mption ionss in favo favour ur of one one par party ty,, the bur burden of pr proof lies on other party to rebut the presumptions.

[4] [4]

If one wa want ntss to pr prov ovee that that hi hiss evid eviden ence ce is ad admi miss ssib ible le,, he should prove the grounds or the circumstances about its admissibility.

[5]

Thi Thiss rul rulee ge gener nerall allyy app applie liess whe when n evi eviden dence ce is admi admissi ssible ble a ass an exception to the general rules, such as under section  32,65 etc.

[6] [6]

Bu Burrden den o off p prroo ooff n nev ever er sh shif ifts ts..

[7] [7]

Wh What at sshi hift ftss is o onu nuss or proo proof. f. Tho Thoug ugh h in co comm mmon on par parla lanc ncee burde urden n and on onus us are syn synon onym ymo ous words ords,, th they ey hav avee somewhat different meaning in legal language.

(23) General Principle Principless regarding Burden of Proof  [1] [1]

The la law wd doe oess n no ot re reco cog gni nize ze the pr priincip nciple le of giv ivin ing g the the be bene nefi fitt of do doub ubtt to a part party y on whom whom th thee burden of proof lies.

[2]

The question o off b bu urden o off pr proof at tth he en end o off th the case case wh when en bo botth pa part rtie iess hav have addu adducced th thei eirr evidence is not of very great importance and the Court has to come to a decision on a consideration of all materials.

[3]

The doctrine of onus probandi applies to a situation in whic hich the mi min nd of the Judge determining the suit is left in doubt as to the point on which side the balance should fall in forming a conclusion.

 

..26.. [4]

It is n no ot aallwa way ys n neecessa sarry ttha hatt th the p paarty w wh ho ha has the burden must himself lead evidence. He may sustain susta in the onus cast upon him by the facts which he may have elicited by cross-examination of the other party's witnesses.

[5]

Where tthe he rreelevant fa faccts ar aree be beffore tthe he C Co ourt and and all that remains for decision is what inference is to be drawn from them, the question of burden of proof is not pertinent and this is more so at the appellate stage.

[6]

Where th thee no nottice to qu quiit se sen nt by re reg gistered po posst was received by Treasurer and secretary of tenant Comp Co mpan any y bu butt re regi gist ster er of lett letter erss rece receiv ived ed an and d issued mai issued mainta ntaine ined d by ten tenant ant Com Compan pany y was not produc pro duced ed by ten tenant ant Com Compan pany y adv adverse erse inf inferen erence ce could be drawn against tenant Company Company..

[7]

If the Court bases his finding only on determination of question of burden of proof when the parties have led evidence, when it bases its Judg Judgmen mentt on err error or of pr prin inci cipl plee go gove vern rnin ing g th thee ques qu esti tion on of bu burd rden en of pr proo oof, f, the the Judg Judgme ment nt is wrong and may be set aside.

[8]

A p paarty aacccepting tthe he b bu urden o off pr pro oof ccaannot b bee allowed to complain in appeal.

[9] [9]

If it is not the gri riev evan ance ce tha hatt the the de defe fect ctiive bur urd den of proof has caused a prejudice in the matter of leading evidence, it would be duty of the Court even at the appellate stage to correct the error of wrongly thrown burden on the aggrieved party.

[10]

So far as the rule of burden of proof goes, no difference can be made between corporations and individuals. ::::::::::::::::

 

..27..

Latest Pronouncement on – Adverse Possession (1)

Abrah Ab raham am Mat Mathew hew and ors ors.. -Vs.-Vs.- Maria Mariamma mma Yoha ohanna nnan n AIR

2014 (557) (KER.) where the Hon'ble Kerala High Court held that, the clai cl aim m fo forr ad adve vers rsee po poss sses essi sion on by th thee defe defend ndan antt is no nott te tena nabl blee when when defendant defe ndant cla claims ims true owner ownership ship and righ rightt of adverse possession possession at same time. Mere possession without proof that same became hostile against true owner does not convert permissive possession into adverse possession.

(2)

Jogendra Panda -Vs.- Collector, Kalahandi and ors. AIR 2014

Orisa 167, where the Hon'ble Orisa High Court held that, the non-triable can not claim the title by adverse possession on land belonging to member of Schedule Tribe. (3)

Sarat kumar Panda and another. -Vs.- Sashibhusan Tripathy

and another AIR AIR 2014 Orissa 182, Limitation Act Act (36 of 1963), Arti. 64, 65,  wh wher eree the the Ho Hon' n'bl blee Or Oris isaa Hi High gh Co Cour urtt held held th that at,, when when a su suit it fo forr declaration of right, title and interest over property on basis of adverse possession and plaintiff possessing property on basis of agreement for sale and there being no denial of title and rights of true owner. The possession was permissive in nature and plaintiff not entitled to relief claim. (4)

Tikk Ti kkam amch chan and d Ra Ramv mvil ilas as Gi Gild lda a an and d an anot othe herr -V -Vs. s.-- Sarl Sarlab abai ai

Nandalal Shrivas and others 2014 (5) Mh.LJ 625, where the Hon'ble Bomb Bo mbay ay Hi High gh Co Cour urtt he held ld that that,, wh when en suit suit is not not fi file led d fo forr de deli live very ry of possession of immovable property purchased in auction sale in execution of decree but suit is filed on the basis of title and for recovery of possession

 

..28.. from party who is illegal possession a suit is governed by Article-65 of the Indian Limitation Act and Article-134 could not apply apply..

(5) Guruvayoor Devaswom Managing Committee, Thrissur -Vs  P.K.Varkey Son of Kunhippalu and others. AIR 2014 KERLA 152, Transferee Tra nsferee by life estat estatee hold holder er is not entit entitled led to raise plea of adve adverse rse possession against full owner owner.. (6)

Saraswatibai w/o Ramkrishna Kshirsagar (legal representives

assister of deceased) V V.. Lila w/o Sampatrao T Tarhekar arhekar 2014 (3) Mh. L.J. 597 Adverse possession – Not available to the defendant in a suit by plaintiff for recovery of possession, if he or his predecessor entered in ps psse sess ssio ion n lawf lawful ully ly un unde derr an ag agre reem emen entt an and d co cont ntin inue ued d to rema remain in in possession till the date of suit. (7)

Shant Sh antib ibai ai wd/ wd/o o Son Sonba ba Ma Madav davii V Naniba Nanibaii w/o Ud Udeha ehan n Uik Uikee

2014(2) Mh.L.J. 873.  Adverse possession – Stray act of trespass cannot ripen into adverse possession. (8)

Balkri Bal krishn shna a s/o s/o.. Bha Bhagwa gwanji nji Loh Lohii and ano anothe therr V Pra Prakas kash h s/o

Shesh Sh eshrao rao Loh Lohii an and d oth other er.. 201 2014(3 4(3)) Mh. Mh.L.J L.J.. 453  Adverse Adverse possession possession Evidence and proof – No evidence produced to show that possession of defendants with animus possidendi began from particular date – No date or year has been stated by defendants to be point of time from which they started occupying property with requisite animus possidendi to knowledge of plaintiffs- It cannot be said that defendants have prove their title on basis of plea of adverse possession.

 

..29..

BURDEN OF PROOF (9)

Ramaiah @ Rama -Vs.- State of Karnataka AIR 2014 (SC) 3388 ,

where Hon'ble Supreme Court of India in para 24 held that, when death of victim within six month occurred marriage and it is not established whether the death was accidental as claimed by defence or a suicide. No evidence showing that, soon before her death she had been subjected to cruelty or harassment for or in connection with any demand for dowry. The question of drawing any presumption by invoking provision of Section 113 (b) of Evidence Act would not arise.

(10) Paramsivam and others -Vs.- State through Inspector of Police AIR 2014 (SC) 2936, where the Hon'ble Supreme Court of India held that, evidence of eye witness that, accused person had abducted deceased no explanation by accused person as to how they dealt with abducted victim. The burden of proving fact within knowledge is with the accused. The presumption U/s 106 of Evidence Act can be drawn against accused that, accused persons have murdered deceased.

(1 (11) 1)

Devi Singh and another -Vs.- Rafiq Ahemad and another AIR

2014 Rahasthan 562, where the Hon'ble Rajasthan High Court held that, in suit for erection when defen defendant dant has alleg alleged ed that, document/ document/rent rent note is forged and fabricated. The burden of proof lies on the plaintiff.

(12)

Kund Kunda a Wd/o Maha Mahadev dev Supa Supare re and othe others rs -Vs.- Haribhau Haribhau S/o

Dhusan Supare, where the Hon'ble Bombay High Court held that, the expression may presume U/s 114 of the Indian Evidence Act indicates  judicial discretion to be used by a P Presiding residing Officer of Trial Court in given facts and circumstances of the case.

 

..30..

(13)

Bhan Bhanudas udas Yashwa ashwant nt Naga Nagawade wade (dec (deceased eased)) through through Lrs. -Vs.-

Dhondiba @ Bhimrao Bhanudas Nagawade, where the Hon'ble Bombay High Court held that, the presumption as to burden lies on party alleging that, child is illegitimate. No evidence produced to show basis on which school record was prepared. No value at all could be given to such record on basis of which defendant wanted to prove plaintiff was born in particular year and his father was particular person.

(14)) (14

Sta State te of Pun Punjab jab -Vs -Vs-- Gu Gurmi rmitt Sin Singh gh AIR 201 2014 4 SUP SUPTEM TEME E

COURT 2561 Relative of husband for purpose of dowry death means such persons, who are related by blood, marriage or adoption.

(15)

Anjani kumar Chaudhary – Vs- State of Bihar and others. AIR

2014 SUPREME COURT 2740 In order to attract S. 307 of Penal Code, injury need not be on vital part of body body..

(16)

Sau. Kamal w/o Anna Gaikwad -Vs- Anna s/o Balaji Gaikwad

and others. AIR 2014 BOMBAY BOMBAY 130 Amend to Divorce Act by Act of 2001, deleted provision requiring confirmation of decree for dissolution passe pa ssed d b by y Di Dist stri rict ct

Co Cour urtt iiss pr pros ospr prec ecti tive ve

in oper operat atio ion. n.

Decr Decree ee of

dissolution of marriage passed prior to enforcement of amendment required confirmation.

(17)

Union of India and others -Vs- Robert Zomawia Street AIR 2014

SUPREME COURT 2721 Entries made in Govt. Land Records maintained under cantonment Land Manual are conclusive proof of title.

::::::::::::::