Possession and Ownership
It is well settled that possession cannot
become adverse to the owner so long as he is not entitled to claim immediate
Sik.dar Vs. Tokejaddy (1951) 3 DLR 484.
Possession is one of the ‘methods by which
property can be acquired. If a person takes possession of a property which
belongs to another, he does not become the owner, but his possession is good
against all except the true owner, and if he is dispossessed by a stranger, he
is entitled to recover possession as a possessory owner.
Joardar Vs. Abdul Karim Bari (1953) 5 DLR 305.
must apply for delivery of possession within 3 years— possession if amicably.
The auction-purchaser must apply for delivery
of possession within 3 years, from the date of confirmation of sale. If he
comes after that, the court will not help him and restore possession to him.
There is nothing in law which suggest that the auction— purchaser could not
acquire title if possession be not taken through court. If after confirmation
of sale he gets possession amicably or otherwise he need not apply for delivery
of possession through Court.
Sarker Vs. Monser Ali Shaikh (1953) 5 DLR 344.
—If title is transferred during the
submergence, the transferor must be deemed to be in possession from the date of
the transfer. It makes no difference whether the transfer is by a private
treaty or by a court sale. Ibid.
raiyat is entitled to retain possession as against real owner when he was let
into possession by a de facto landlord—bonafide must be proved.
The principle that an agricultural raiyat who
was let into possession of the land by and holds it under a defacto proprietor
bona fide, is entitled to retain posses ion as a raiyat although the de facto
proprietor is subsequently proved to be not a real owner, is an encroachment
upon the ordinary rule of law that the granter is not competent to confer upon
the grantee a better title than what he himself possesses and as such must be
cautiously applied and must not be extended.
Sikdar Vs. Tokejaddy (1951) 3 DLR 484.
—To make the principle applicable there must,
therefore, be a bonafide belief of the lessor and the lessee that the former
had sole interest in the land to create the interest and the latter also
believed that he obtained a valid right available against the sole real owner.
trespasser is dispossessed by vis major the constructive possession is deemed
to be with the rightful owner.
The doctrine of constructive possession is no
available to a trespasser when he is dispossessed by vis major because such
dispossession has the same effect d voluntary abandonment of possession by him.
Where it appeared that the land in suit
remained under water during the rainy season and the submergence of the land
did not interfere with rising of the usual crops, it could not be said that
there was break in pos session. The submergence contemplated by law must 1 such
as to render the land derelict, that is, incapable of use for any purpose, and
not a seasonal submergence during which the possession of the then possessor
not interrupted or discontinued. I PLR
Criminal Court’s finding regarding possession
not conclusive. S.N. Gupta & Co. Vs.
Sudananda Ghose. (1959) 11 DLR 470
in fact and possession in law
If two persons are in possession of a piece
of land, one having title and the other not, then the one who has title is in
possession in the eye of law and then other is a mere intruder. Possession in
fact is not all ways possession in law; nor is it necessary that possession, in
order to be possession in law, must be possession in fact.
Shaik Vs. Fayazuddin Ahmed. (1954) 6 DLR 253.
under a mistaken or invalid title
Possession under a mistaken or invalid title
is as effective as that of a trespasser, and, if sufficient in length of time
and continuity, gives the holder a good title.
Vs. Suruj Ali (1955) 7 DLR 94.
delivery of possession
So long as the previous proceeding stands the
decree holder is not entitled to get a fresh delivery of possession in a
subsequent execution case if he was dispossessed by the judgment—debtors after
the previous delivery of possession. His remedy is to move the executive court
for vacating the order or to move the superior tribunal against that order. It
cannot be challenged in a subsequent proceeding started by a separate execution
Rahmen Vs. Jamimi Mosahar (1955) 7 DLR 82.
In the absence of any evidence that the
submergence of the land during the rainy season was such as to make ii
incapable of possession of the nature to which the land is susceptible, it
cannot be held that inundation of the land in the rainy season is an
interruption with possession.
Nath Vs. Kamar Au (1955)7 DLR 163.
In Bengal every land goes under water during
the rainy season. But that cannot be interpreted as an interruption with the
possession of the actual occupier of the land. Ibid.
Symbolical possession—Decree-holder being
entitled to khash possession can get symbolical possession where circumstances
Pal Vs. Asgar Ali (1955) 7 DLR 425.
Symbolical possession of land—effective as
against tenant judgment debtor.
Vs. Ezhar Mia (1956) 8 DLR 82.
A person is not entitled to oust his
co-sharer from a plot of land in exclusive possession of the latter on the plea
that he has got title to every inch of the joint property. If he feels that his
co-sharer is in possession of some lands in excess of his share his remedy lies
in a suit for partition.
Sheik Vs. Abjanennessa Bibi (1953) 5 DLR 39.
Mere possession immediately before the suit
when counter-balanced by previous possession within lmitation of the other
party will not be a sufficient ground for claiming possession. (1954) PLR (Lah.) 371.