Dispossession vis-à-vis Discontinuance of possession

The term “dispossession” and “discontinuance of possession” in Article 142, Act IX of 1908 came to be considered before the Calcutta High Court in Brojendra Kishore Roy Chowdhury v. Bharat Chandra Roy and others, AIR 1916 Cal. 751 and the court held:
“Dispossession implies the coming in of a person and the driving out of another from possession. Discontinuance implies the going out of the person in possession and his being followed into possession by another.”
The distinction between “dispossession” and “discontinuance” has been noticed in Gangu Bai v. Soni, 1942 Nagpur Law Journal 99, observing that “dispossession” is not voluntary, “discontinuance” is. In dispossession, there is an element of force and adverseness while in the case of discontinuance, the person occupying may be an innocent person. For discontinuance of possession, the person in possession goes out and followed into possession by other person.
In Agency Company v. Short, 1888 (13) AC 793, the Privy Council observed that there is discontinuance of adverse possession when possession has been abandoned. The reason for the said observation finds mention on page 798 that there is no one against whom rightful owner can bring his action. The adverse possession cannot commence without actual possession and this would furnish cause of action.
Dispossession is question of fact. The term refers to averments in the plaint exclusively and cannot be construed as referring to averments in the plaint in the first instance and at a later stage to the finding on the evidence. The indicas of discontinuance are also similar to some extent. It implies going out of the other person in possession and is being followed into possession by another. U.P. Gandhi Smarak Nidhi v. Aziz Mian, (2013) 119 R.D. 106.

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