Supreme Court on 29th July reiterated the principles of adverse possession, while holding the judgment of the Calcutta High Court in error. Court held that the right, title or interest in the property has to be determined, and mere finding that a person was in possession prior to being dispossessed from the property, will not give him the right to repossession of the same.
Justice Ashok Bhushan and Justice Navin Sinha in Shamsher Singh v Lt. Col Nahar Singh, observed that by simply proving that he was in possession prior to the date he was dispossessed by decree-holder, he is not entitled to be put back in possession.
The Court in Shreenath and Another Vs. Rajesh and Others, (1998), had pointed in paras 3 & 5 that:
“3. In interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.
- The question raised is, whether the third party in possession of a property claiming independent right as a tenant not party to a decree under execution could resist such decree by seeking adjudication of his objections under Order 21 Rule 97 of the Civil Procedure Code?”
High Court committed error in allowing the appeal and the Executing Court has rightly rejected the application for acquisition of title by way of adverse possession. Supreme Court has observed that, without determination of right, title or interest, the application for putting the applicant back into possession could not have been allowed.
The scope of Order XXI Rule 101, after amendment in 1976, has completely changed. The court noted:
“Earlier a person who was a bona fide claimant and who satisfied that he was in possession of the property on his own account or on account of some other person then the judgment-debtor could have been put in possession of the property on an application under Rules 100 and 101, whereas now after the amendment for putting back into possession an applicant has not only to prove that he is in bona fide possession rather he has to prove his right, title or interest in the property.”
— India Legal Bureau