Once the title of the Plaintiff seeking possession is proved, onus shifts upon the defendant to plead and prove his right to remain in the occupation of the said property.

In a recent judgment, the High Court of Delhi held that once it is established that the appellant/plaintiff has title to the property, it was for the respondent/defendant to plead and prove the right, if any to remain in occupation of the property. Without the defendants pleading any right to continue in occupation in the property, a decree for possession ought to have followed on the plaintiff proving his title.

The said ratio was delivered by the High Court of Delhi the matter of Anoop Kumar Aggarwal Vs. Shanti Saruo Chowhan (deceased) through LRs, RSA 145/2017 decided on 10.07.2018.

Challenge

In the present second appeal, the only substantial question of law before the court was whether a decree for recovery of possession of immovable property can be denied despite of finding that the plaintiff has the title to the property.

The Plaintiff/ Appellant instituted a suit claiming for recovery of possession of one room on the first floor of the suit property on which the defendants/respondent had allegedly trespassed in collusion with the other tenants in the property.

The trial court and the court of first appeal, though have decided the title of the subject property in favour of the plaintiff/ appellant, however the possession to the same was denied to the plaintiff merely for the reason that the unauthorised trespass by the defendant/ respondent was not proved by the plaintiff/ appellant

Held

The Hon’ble High Court of Delhi set aside the decisions of the courts below by holding that the courts below have erred in holding that it was for the plaintiff/ appellant to prove the factum of trespass by the respondent/defendant into the property.

After placing reliance upon Maria Margarida Sequeria Fernandes Vs. Erasmo Jack de Sequeria (2012) 5 SCC 370, it was held that a title suit for possession has two parts – first, adjudication of title, and second, adjudication of possession. In the present case, the appellant/plaintiff has proved his title to the property and the said finding has not been challenged by the respondents/defendants and has attained finality.

It was further held that once it is established that the appellant/plaintiff has title to the property, it was for the respondent/defendant to plead and prove the right, if any to remain in occupation of the property. In the present case, the respondent/defendant utterly failed to do so. Hence the court was of the opinion that without the respondents/defendants pleading any right to continue in occupation in the property, a decree for possession ought to have followed on the appellant/plaintiff proving his title.