Monday, 9 May 2016

Whether plaintiff can seek declaration of title on basis of adverse possession?

 Section 34 of the Specific Relief Act confers

power on the court to grant declaratory reliefs. Section 34

provides that any person entitled to any legal character, or to

any right as to any property, may Institute a suit against any

person denying, or interested to deny, his title to such

character or right, and the court may in its discretion make

therein a declaration that he is so entitled. There is no law

which provides that when a person possesses a property

adverse to the interest of the real     owner, he becomes the

owner of the property. On the other hand, when it is said that

the person in adverse possession has perfected title, it only

means that since the person who had the right to possession

has allowed his right to be extinguished, the person who is in

adverse possession will be entitled to hold the property as its

absolute owner. As such, a suit for declaration of title by

adverse possession can only be treated as a suit for declaration

of a legal character. The question is as to whether a declaration

of such a legal character can be sought.      Article 65 of the

schedule to the Limitation Act deals with the period of limitation

for suits for possession of immovable property or any interest

therein based on title.   As per the said Article, the period of

limitation prescribed for suits of the said nature is twelve years

from the date when the possession of the defendant becomes

adverse to the plaintiff. In other words, if the possession of the

defendant does not become adverse to the plaintiff, there is no

period of limitation for a suit for possession based on title.

Article 65 does not confer any right on the defendant over the

property.   On the other hand, the said Article provides for a

defence to persons in possession of immovable property of

others.   Section 27 of the Limitation Act provides that at the

determination of the period prescribed to any person for

instituting a suit for possession of any property, his right to

such property shall be extinguished. Section 27 would operate

only when a plea of adverse possession is established by the

defendant in an action for possession based on title. In other

words, the extinguishment of the right of the real owner is

dependent on the establishment of adverse possession by the

person in possession and the question of establishment of

adverse possession arises only when a suit is filed for

possession based on title. It is therefore, evident that the plea

of adverse possession is only a shield and not a sword at all. If

that be so, I have no hesitation to hold that a suit for

declaration of title over a property by adverse possession and
limitation is not maintainable. I draw support to this view from

the decision of the Apex Court in Gurudwara Sahib v. Gram

Panchayat Village Sirthala (supra). Paragraph 7 of the said

judgment reads thus:

               "In the Second Appeal, the relief of ownership by adverse

         possession is again denied holding that such a suit is not

         maintainable.   There cannot be any quarrel to this extent the

         judgments of the courts below are correct and without any

         blemish. Even if the plaintiff is found to be in adverse possession,

         it cannot seek a declaration to the effect that such adverse
         possession has matured into ownership.      Only if proceedings filed

         against the appellant and appellant is arrayed as defendant that it

         can use this adverse possession as a shield/defence."
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                      THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

              THURSDAY, THE 13TH DAY OF AUGUST 2015
                                             RSA.No. 592 of 2015 ()
                                           

           MOHINI, AGED 65 YEARS, W/O. LATE NARAYANA HEGDE,
            Vs

           B.THIMMAPPA, AGED 65 YEARS, S/O. THYAMPU, ,
               LALITHA NIVAS, SHANTHIPPALLA, KOIPADY VILLAGE,
             

    Citation;AIR 2016 (NOC)368 kerala


            The plaintiffs in a suit for declaration of title and

injunction is the appellant in this Second Appeal.

            2.   The facts relevant for decision of the Second

Appeal are the following:

            Plaint A schedule property belonged to deceased

Narayana Hegde, the husband of the first plaintiff and the

father of plaintiffs 2 to 5.    On the death of Narayana Hegde,

plaint A schedule property devolved on the plaintiffs. Plaint B

schedule property is situated on the south and east of plaint A

schedule property. According to the plaintiffs, Narayana Hegde

and the first plaintiff trespassed into plaint B schedule property

during December, 1975 and reduced the same to their

possession by constructing a common compound wall enclosing

both plaint A and B schedule properties.          The case of the

plaintiffs is that they have perfected title to plaint B schedule

property by adverse possession and limitation. It is alleged by

the plaintiffs in the plaint that deceased Narayana Hegde and

the first plaintiff had constructed a building also in plaint B

schedule property.       According to the plaintiffs, the first

defendant attempted to demolish the compound wall of the

plaint B schedule property on 23.6.2010 with a view to trespass

upon the said property and the suit was necessitated on

account of the said reason. The relief claimed in the suit was a

declaration that the plaintiffs have perfected title to plaint B

schedule property by adverse possession and limitation.         A

decree of permanent prohibitory injunction restraining the

defendants from trespassing into plaint B schedule property

was also claimed as a consequential relief.

           3.    The first defendant resisted the suit by filing a

written statement.    According to the first defendant, plaint B

schedule property belonged to one Lakshminarayana Naik; that

Lakshminarayana Naik was in possession and enjoyment of the

said property as its absolute owner until his death and that on

the death of Lakshminarayana Naik, the said property devolved
on his wife Lalithamma and his children. It is also their case

that on the death of Lalithamma, her rights also devolved on

the children of Lakshminarayana Naik and that they sold the

property to the first defendant during 2009 by virtue of Exts.B1

and B2 sale deeds. According to the first defendant, plaintiffs

and Narayana Hegde were never in possession of plaint B

schedule property.    As regards the building claimed to have

been constructed by Narayana Hegde and the first plaintiff in

plaint B schedule property, it was contended by the first

defendant that the said building was constructed by the first

plaintiff with the permission of Lalithamma to enable her to

earn a livelihood by leasing out the building.  As regards the

construction of the compound wall, it was contended by the

first defendant that the same was constructed by the earliest

common owner of plaint A and B schedule properties.

           4.   The second defendant who is one of the legal

representatives of Lalithamma also resisted the suit by filing a

separate written statement raising contentions identical to the

contentions raised by the first defendant. He also asserted that
by virtue of Exts.B1 and     B2 sale deeds, the first defendant

became the absolute owner in possession of plaint B schedule

property. The second defendant also endorsed the stand of the

first  defendant  that   the   building  in   the   property   was

constructed by the first plaintiff with the permission of

Lalithamma.

           5.   The trial court found that the plaintiffs have been

in possession of plaint B schedule property for more than

twelve years openly, continuously, uninterruptedly and as of

right with the hostile animus against the true owners and

consequently,   decreed the suit declaring that the plaintiffs

have perfected title to plaint B schedule property by adverse

possession and limitation.   A decree of permanent prohibitory

injunction restraining the defendants from trespassing into

plaint B schedule property or interfering with or disturbing the

peaceful possession, user and enjoyment of plaint B schedule

property was also granted to the plaintiffs as a consequential

relief.

           6.   The defendants have challenged the decision of
the trial court in two separate appeals.     The appellate court,

relying on the decision of the Apex Court in Gurudwara Sahib v.

Gram Panchayat Village Sirthala and Another [(2014) 1

SCC 669], held that a suit for declaration of title by adverse

possession and limitation is not maintainable.       The appellate

court also held that a prohibitory injunction cannot be issued

against the first defendant who is the owner of the property. In

the light of the said findings, the appellate court allowed the

appeals and dismissed the suit. The plaintiffs are aggrieved by

the said decision of the appellate court.

           7.    Heard the learned Senior Counsel for the

appellants and the learned counsel for the first respondent.

           8.    The learned Senior Counsel for the appellants

contended that in view of the provision contained in Section 34

of the Specific Relief Act, it cannot be said that a suit for

declaration of title by adverse possession and limitation is not

maintainable.   He relied on the decision of the Apex Court in

S.Jeevantham v. The State through Inspector of Police,

Tamil Nadu [AIR 2004 SC 4608] and the decisions in Badri
Chaudhuri v. Harbans Jha (AIR 1919 Patna 447) and Shiro

Kumari Debi v. Govind Shaw Tanti (ILR 1877 Vol.II Calcutta

418) in support of the said contention.        According to the

learned Senior Counsel, in the light of the provision contained in

Section 27 of the Limitation Act, if it is found that the suit for

possession based on title is barred, the person in possession of

the property becomes its owner.      The learned Senior Counsel

relied on the decisions of the Privy Council in Perry v. Clissod

and others     (1907 AC 73), Ramanuj v. Ramkrishna (AIR

1922 PC 184), Hem Chand v. Pearey Lal (AIR 1942 PC 64)

and the decision of the Bombay High Court in Fakirappa

Melemani v. Ningappa Matti (AIR 1943 Bombay 265)                in

support of the said contention. As regards the view taken by

the Apex Court in Gurudwara Sahib v. Gram Panchayat

Village Sirthala (supra) that a suit for declaration of title by

adverse possession and limitation is not maintainable, the

learned Senior Counsel for the appellants contended that the

said decision of the Apex Court is a judgment rendered per

incuriam.   The learned Senior Counsel further contended that

at any rate, in so far as the plaintiffs have made out a case of

possession, the appellate court ought to have sustained the

decree of prohibitory injunction granted by the trial court.

           9.   Per contra, the learned counsel for the first

respondent contended that in the light of the decision of the

Apex Court in Gurudwara Sahib v. Gram Panchayat Village

Sirthala (supra),    the   plaintiffs are  not entitled     to the

declaration sought in the suit.        According to the learned

counsel, since the case of the plaintiffs is that they are

trespassers to the property, they are not entitled to the decree

of injunction against the first defendant who is the true owner

of the property.

           10. The questions fall for consideration, in the

circumstances, are (i) whether a suit      for declaration of title

over a property by adverse possession and limitation is

maintainable and (ii) whether a trespasser is entitled to a

decree of injunction against the true owner of the property.

           11.   Section 34 of the Specific Relief Act confers

power on the court to grant declaratory reliefs. Section 34

provides that any person entitled to any legal character, or to

any right as to any property, may Institute a suit against any

person denying, or interested to deny, his title to such

character or right, and the court may in its discretion make

therein a declaration that he is so entitled. There is no law

which provides that when a person possesses a property

adverse to the interest of the real     owner, he becomes the

owner of the property. On the other hand, when it is said that

the person in adverse possession has perfected title, it only

means that since the person who had the right to possession

has allowed his right to be extinguished, the person who is in

adverse possession will be entitled to hold the property as its

absolute owner. As such, a suit for declaration of title by

adverse possession can only be treated as a suit for declaration

of a legal character. The question is as to whether a declaration

of such a legal character can be sought.      Article 65 of the

schedule to the Limitation Act deals with the period of limitation

for suits for possession of immovable property or any interest

therein based on title.   As per the said Article, the period of

limitation prescribed for suits of the said nature is twelve years

from the date when the possession of the defendant becomes

adverse to the plaintiff. In other words, if the possession of the

defendant does not become adverse to the plaintiff, there is no

period of limitation for a suit for possession based on title.

Article 65 does not confer any right on the defendant over the

property.   On the other hand, the said Article provides for a

defence to persons in possession of immovable property of

others.   Section 27 of the Limitation Act provides that at the

determination of the period prescribed to any person for

instituting a suit for possession of any property, his right to

such property shall be extinguished. Section 27 would operate

only when a plea of adverse possession is established by the

defendant in an action for possession based on title. In other

words, the extinguishment of the right of the real owner is

dependent on the establishment of adverse possession by the

person in possession and the question of establishment of

adverse possession arises only when a suit is filed for

possession based on title. It is therefore, evident that the plea
of adverse possession is only a shield and not a sword at all. If

that be so, I have no hesitation to hold that a suit for

declaration of title over a property by adverse possession and

limitation is not maintainable. I draw support to this view from

the decision of the Apex Court in Gurudwara Sahib v. Gram

Panchayat Village Sirthala (supra). Paragraph 7 of the said

judgment reads thus:

               "In the Second Appeal, the relief of ownership by adverse

         possession is again denied holding that such a suit is not

         maintainable.   There cannot be any quarrel to this extent the

         judgments of the courts below are correct and without any

         blemish. Even if the plaintiff is found to be in adverse possession,

         it cannot seek a declaration to the effect that such adverse

         possession has matured into ownership.      Only if proceedings filed

         against the appellant and appellant is arrayed as defendant that it

         can use this adverse possession as a shield/defence."

I also draw support to the said view from the decision of the

Delhi High Court in Prem Nath Wadhawan v. Inder Rai

Wadhawan (1993(3) Punjab Law Reporter (Delhi Section) 70),

the decision of the Gouhati High Court in M/s.Brahmaputra

Automobiles Pvt. Ltd. v. State of Assam [AIR 2014 (NOC)

73] and    decisions of the Punjab and Haryana High Court in

Bhim Singh v. Zile Singh [AIR 2006 Punjab and Haryana 195]

and   Joginder Kaur v. Gurbachan Kaur [(2013) 1 CCC 522

(P&H)].

           12. True, in Perry v. Clissod and others (supra),

Ramanuj v. Ramkrishna (supra), Hem Chand v. Pearey Lal

(supra) and      Fakirappa Melemani v. Ningappa Matti

(supra), it was held that since the provisions of the Limitation

Act extinguishes the right of the real owner on determination of

the period of limitation, in the absence of any provision to

indicate as to the person in whom that right is to vest, it is

reasonable to hold that the title of the property would vest in

the person in possession of the property. The question whether

a suit for declaration of title by adverse possession and

limitation is maintainable or not did not arise for consideration

in the said cases.  As far as the decision in Shiro Kumari Debi

v. Govind Shaw Tanti (supra) is concerned, I am unable to

agree with the view taken in the said decision, for, it only

reiterates a similar view taken by the said court in an earlier

case. Badri Chaudhuri v. Harbans Jha           (supra) is a case

where the owner of a property after executing a fraudulent

transfer continued to be in possession of the property for more

than twelve years and it was in the said context, the court held

that the plaintiff being in possession for more than twelve

years, has acquired title by adverse possession and he is

entitled to claim a declaration to that effect. The question

whether a trespasser is entitled to get a declaration to that

effect did not arise for consideration in the said case also. A

decision can be held to be per incuriam only when it is rendered

contrary to a statutory provision or against the binding

decisions of the courts. There is no statutory provision which

enables a trespasser to file a suit for declaration of his title to

the property by adverse possession and limitation. There is also

no decision by any larger bench of the Apex Court which took a

contrary stand on the said issue. As such, the contention

advanced by the learned Senior Counsel for the appellant that

the decision in Gurudwara Sahib v. Gram Panchayat

Village Sirthala (supra) is a decision rendered per incuriam is

liable to be rejected.   The contention raised by the learned
Senior Counsel for the appellants based on the decision of the

Apex    Court  in   S.Jeevantham v.         The State through

Inspector of Police, Tamil Nadu (supra) is also liable to be

rejected, for, the issue whether a suit for declaration of title

over a property by adverse possession and limitation is

maintainable or not has not been considered in the said case.

           13. As regards the contention of the learned Senior

Counsel for appellants that at any rate, the plaintiffs were

entitled to a decree for injunction, I must point out at once that

there is no pleading in the plaint as regards the right of the

plaintiffs to  obtain   a   decree     of  injunction  against  the

defendants.    As noticed above, a decree of injunction was

sought in the suit as a consequential relief to the declaratory

relief sought in the suit to the effect that the plaintiffs have

perfected title to the property by adverse possession. Further,

the specific case of the plaintiffs is that they are trespassers. It

is now settled that no injunction can be granted against the true

owner at the instance of a trespasser. (See Premji Ratansey

Shah v. Union of India [(1994)5 SCC 547), Mahadeo

Savlaram Shelke v. Pune Municipal Corpn. [(1995)3 SCC

33], Tamil Nadu Housing Board v. A.Viswam (AIR 1996 SC

3377) and Sopan Sukhdeo Sable v. Asst. Charity Commr.

[(2004) 3 SCC 137). Paragraphs 25 and 26 of the decision of

the Apex Court in Sopan Sukhdeo Sable v. Asst. Charity

Commr. (supra) read thus:

                   "25. Now the other aspect of the matter needs to be

            noted.    Assuming a trespasser ousted can seek restoration

            of possession under Section 6 of the Specific Relief Act,

            1963, can the trespasser seek injunction against the true

            owner?      This question does not entirely depend upon

            Section 6 of the Specific Relief Act, but mainly depends upon

            certain general principles applicable to the law of injunctions

            and as to the scope of the exercise of discretion while

            granting injunction.    In Mahadeo Savlaram Shelke v. Pune

            Municipal Corpn. it was held, after referring to Woodroffe:

            Law Relating to Injunctions; Goyle, L.C.: Law of Injunctions;

            Bean, David: Injunctions; Joyce: Injunctions and other leading

            articles on the subject that the appellant who was trespasser

            in possession could not seek injunction against the true

            owner. In that context this Court quoted Shiv Kumar Chadha

            v. Municipal Corpn. of Delhi wherein it was observed that

            injunction is discretionary and that: (SCC p.175, para 31)




                   "[J]udicial proceedings cannot be used to protect or to

             perpetuate a wrong committed by a person who approaches

             the court."


                   26.   Reference was also made to Dalpat Kumar v.

             Prahlad Singh in regard to the meaning of the words "prima

             facie case" and "balance of convenience" and observed in

             Mahadeo case that: (SCC p.39, para 9)


                   "9.   It is settled law that no injunction could be

             granted against the true owner at the instance of persons in

             unlawful possession."

In the light of the aforesaid decisions of the Apex Court, I do not

think that the plaintiffs in this case are entitled to a decree of

injunction against the first defendant who is the real owner of

the property.

           In the result, the Second Appeal fails and the same

is, accordingly, dismissed.



                                                       Sd/-
                                              P.B.SURESH KUMAR,
                                                    (JUDGE)

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