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Occupancy By Itself Does Not Create Any Title Or A Right To Remain In Possession

In SAVYASACHI K. SAHAI vs Union Of India, the Delhi High Court has dismissed a review petition filed by four applicants who claimed to be the sons of previous Mutawalli or caretakers of the dargah at Amir Khusro Park and, therefore, asserted their right to some construction inside the tikona graveyard park, also known as Amir Khusro park.

Mohd Shakeel, Mohd Allauddin and Mohd Mehmood (claiming to be the three sons of the late Mohd Yusuf and the late Mohammed Yunus) and Mohd Nasir (son of Mohd Hakmuddin) had sought review of an order passed by the high court on May 16. Under the said order, the court had observed that the petitioners did not have sufficient documentary evidence to prove their claim and sought a status report from the authorities concerned.

What the court said

After examining all the submissions and evidence on record, a division bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar held that presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land, which may excite the attention of the owner that he has been dispossessed.

Case Background

The Delhi Wakf Board asserted that the said land was a Muslim graveyard and that it had the structures of two graveyards, namely Dargah Shah Firdaus and Dargah Musafir Shah with a wall type mosque. The review petitioners claimed several structures wherein they claim to have been
residing. They claimed that their fathers were predecessor-in-interest for the said structures
as they were appointed as a Mutawalli (caretaker) for the two Dargahs at this park.

After examining all the submissions and evidence on record, a division bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar held that presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land, which may excite the attention of the owner that he has been dispossessed.

Article referred: http://www.livelaw.in/occupancy-not-create-title-right-remain-possession-delhi-hc-dismisses-claim-encroachers-dargah-land-read-judgment/

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