IMPORTANT POINT
In order to prove that the possession of any person in any immovable property is legal, it is necessary for such person to prove prima facie that he is either the owner of such property or is in possession as a lawful tenant or is in its permissive possession with the express consent of its true owner.

JUDGMENT :

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against the final judgment and order dated 28.08.2018 in Special Appeal No.25 of 2015 and order dated 07.09.2018 in Review Application MCC No.1193 of 2018 in Special Appeal No.25 of 2015 passed by the High Court of Uttarakhand at Nainital whereby the High Court dismissed the special appeal and the Review Application filed by the appellant herein.

3. In order to appreciate the short controversy involved in these appeals, few facts need to be mentioned hereinbelow.

4. Respondent Nos.3 and 4 are the Nagar Palika Parishad, Nainital (hereinafter referred to as “the Nagar Palika”). In 1990, the Nagar Palika issued an advertisement to auction their residential quarter Nos.6 and 7 situated at Waverly Compound (Gopala Sadan) Mallital, Naintal. So far as this case is concerned, it relates to quarter No. 6.

5. The appellant herein claimed to be one of the participants in the auction proceedings and also the highest bidder. The appellant claimed that he occupied quarter No.6 and started living therein since June 1990. The appellant complained that in the year 2001 (18.07.2001), the Nagar Palika instead of executing the sale deed in his favour in relation to quarter No.6, passed a resolution to sell quarter No.6 along with other quarters in public auction.

6. The appellant, therefore, filed an application under Section 35 of the Municipalities Act praying therein for a direction to the Nagar Palika for execution of the sale deed in his favour in relation to quarter No.6.

7. By order dated 21.07.2006, the Commissioner, Nainital passed an order directing Nagar Palika to execute the sale deed in favour of the appellant. He also fixed the rate at which the sale deed was to be executed followed by another order to that effect.

8. The Nagar Palika felt aggrieved and filed application/appeal to the State (respondent No.1). By order dated 12.03.2007, the State set aside the order of the Commissioner dated 21.07.2006 which gave rise to filing of the writ petition by the appellant in the High Court at Nainital. By impugned order, the High Court dismissed the writ petition and also the review application filed by the appellant herein, giving rise to filing of the present appeals by way of special leave in this Court.

9. The short question, which arises for consideration, in this case is whether the High Court was justified in dismissing the special appeal filed by the appellant.

10. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.

11. In our opinion, the possession of the appellant since inception, i.e., since June 1990 in quarter No.6 was unauthorized and was that of a trespasser. This we say for more than one reason.

12. First, there was no allotment letter issued by Nagar Palika in relation to quarter No.6 to the appellant in the socalled auction proceedings held in 1990; Second, the appellant also failed to file any such allotment letter nor could file any acceptance letter of Nagar Palika indicating acceptance of his socalled highest bid; Third, the appellant also failed to show as to how much amount he actually paid to the Nagar Palika towards the sale/auction price for quarter No. 6 and, if so, when; Fourth, there was no privity of contract between the appellant and the Nagar Palika which could justify appellant’s entry in quarter No. 6 as being legal and lastly, in the absence of any document of title or/and legal document executed by the Nagar Palika in appellant's favour in relation to quarter No.6 before the appellant entering in quarter No.6 in June 1990, the appellant’s possession cannot be held legal.

13. It is a settled principle of law that in order to prove that the possession of any person in any immovable property is legal, it is necessary for such person to prove prima facie that he is either the owner of such property or is in possession as a lawful tenant or is in its permissive possessi