Wednesday, 7 August 2019

Whether person who has acquired right to property by adverse possession can use it sword?

 We hold that a person in possession cannot be ousted by another
person except by due procedure of law and once 12 years' period of

adverse possession is over, even owner's right to eject him is lost and
the possessory owner acquires right, title and interest possessed by
the outgoing person/owner as the case may be against whom he has
prescribed. In our opinion, consequence is that once the right, title or
interest is acquired it can be used as a sword by the plaintiff as well as
a shield by the defendant within ken of Article 65 of the Act and any
person who has perfected title by way of adverse possession, can file a
suit for restoration of possession in case of dispossession.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7764 OF 2014

RAVINDER KAUR GREWAL  Vs MANJIT KAUR 

ARUN MISHRA, J.
Dated:August 07, 2019.
Citation: AIR 2019 SC 3827

1. The question of law involved in the present matters is quite
significant. Whether a person claiming the title by virtue of adverse
possession can maintain a suit under Article 65 of Limitation Act, 1963
(for short, “the Act”) for declaration of title and for a permanent
injunction seeking the protection of his possession thereby restraining
the defendant from interfering in the possession or for restoration of
possession in case of illegal dispossession by a defendant whose title has
been extinguished by virtue of the plaintiff remaining in the adverse
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possession or in case of dispossession by some other person? In other
words, whether Article 65 of the Act only enables a person to set up a
plea of adverse possession as a shield as a defendant and such a plea
cannot be used as a sword by a plaintiff to protect the possession of
immovable property or to recover it in case of dispossession. Whether he
is remediless in such a case? In case a person has perfected his title
based on adverse possession and property is sold by the owner after the
extinguishment of his title, what is the remedy of a person to avoid sale
and interference in possession or for its restoration in case of
dispossession?
2. Historically, adverse possession is a pretty old concept of law. It is
useful but often criticised concept on the ground that it protects and
confers rights upon wrongdoers. The concept of adverse possession
appeared in the Code of Hammurabi approximately 2000 years before
Christ era. Law 30 contained a provision “If a chieftain or a man leaves
his house, garden, and field …. and someone else takes possession of his
house, garden and field and uses it for three years; if the first owner
returns and claims his house, garden, and field, it shall not be given to
him, but he who has taken possession of it and used it shall continue to
use it.” However, there was an exception to the aforesaid rule: for a
soldier captured or killed in battle and the case of the juvenile son of the
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owner. In Roman times, attached to the land, a kind of spirit that was
nurtured by the possessor. Possessor or user of the land was considered
to have a greater “ownership” of the land than the titled owner. We
inherited the Common Law concept, being a part of the erstwhile British
colony. William in 1066 consolidated ownership of land under the Crown.
The Statute of Westminster came in 1275 when land records were very
often scarce and literacy was rare, the best evidence of ownership was
possession. In 1639, the Statute of Limitation fixed the period for
recovery of possession at 20 years. A line of thought was also evolved
that the person who possesses the land and produces something of
ultimate benefit to the society, must hold the best title to the land.
Revenue laws relating to land have been enacted in the spirit to confer
the title on the actual tiller of the land. The Statute of Wills in 1540
allowed lands to be passed down to heirs. The Statute of Tenures enacted
in 1660 ended the feudal system and created the concept of the title. The
adverse possession remained as a part of the law and continue to exist.
The concept of adverse possession has a root in the aspect that it awards
ownership of land to the person who makes the best or highest use of the
land. The land, which is being used is more valuable than idle land, is
the concept of utilitarianism. The concept thus, allows the society as a
whole to benefit from the land being held adversely but allows a
sufficient period for the “true owner” to recover the land. The adverse
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possession statutes permit rapid development of “wild” lands with the
weak or indeterminate title. It helps in the Doctrine of Administration
also as it can be an effective and efficient way to remove or cure clouds of
title which with memories grow dim and evidence becomes unclear. The
possessor who maintains and improves the land has a more valid claim
to the land than the owner who never visits or cares for the land and
uses it, is of no utility. If a former owner neglects and allows the gradual
dissociation between himself and what he is claiming and he knows that
someone else is caring by doing acts, the attachment which one develops
by caring cannot be easily parted with. The bundle of ingredients
constitutes adverse possession.
3. We have heard learned counsel appearing for the parties at length
and also the Amicus Curiae, Shri P.S. Patwalia and Shri Huzefa Ahmadi,
senior counsel. Various decisions of this Court and Privy Council and
English Courts have been cited in which the suit filed by the plaintiff
based on adverse possession has been held to be maintainable for
declaration of title and protection of the possession or the restoration of
possession. Nature of right acquired by adverse possession and even
otherwise as to the right to protect possession against unlawful
dispossession of the plaintiff or for its recovery in case of illegal
dispossession.
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4. Before dilating upon the issue, it is necessary to refer the decision
in Gurudwara Sahab v. Gram Panchayat Village Sirthala (2014) 1 SCC
669 in which this court has referred to the decision of the Punjab and
Haryana High Court in Gurudwara Sahib Sannauli v. State of Punjab
since reported in (2009) 154 PLR 756, to opine that no declaration of title
can be sought by a plaintiff on the basis of adverse possession inasmuch
as adverse possession can be used as a shield by a defendant and not as
a sword by a plaintiff. This Court while deciding the question gave the
only reason by simply observing that there is “no quarrel” with the
proposition to the extent that suit cannot be based by the plaintiff on
adverse possession. Thus, this point was not contested in Gurudwara
Sahib v. State Gram Panchayat Village, Sirthala (supra) when this Court
expressed said opinion.
5. It is pertinent to mention here that before the aforesaid decision of
this court, there was no such decision of this court holding that suit
cannot be filed by a plaintiff based on adverse possession. The views to
the contrary of larger and coordinate benches were not submitted for
consideration of the Two Judge Bench of this Court which decided the
aforesaid matter.
6. A ThreeJudge
Bench decision in Sarangadeva Periya Matam &
Anr. v. Ramaswami Gondar (Dead) by Lrs. AIR 1966 SC 1603 of this
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Court in which the decision of Privy Council in Musumut Chundrabullee
Debia v. Luchea Debia Chowdrain 1865 SCC Online PC 7 had been relied
on, was not placed for consideration before the division bench deciding
Gurudwara Sahib v. Gram Panchayat, Sirthala.
7. Learned Amicus pointed out that in Sarangadeva Periya Matam &
Anr. v. Ramaswami Goundar (Dead) by Lrs. (supra) the plaintiff was in
the possession of the suit land until January 1950 when the ‘mutt’
obtained possession of the land. On February 18, 1954, plaintiff
instituted the suit against the ‘mutt’ for “recovery of possession” of the
suit land o based on an acquisition of title to land by way of “adverse
possession”. A ThreeJudge
Bench of this Court has held that the
plaintiff acquired the title by his adverse possession and was entitled to
recover the possession. Following is the relevant discussion:
“1. Sri Sarangadevar Periya Matam of Kumbakonam was the inam
holder of lands in Kannibada Zamin, Dindigul Taluk, Madurai
District. In 1883, the then mathadhipathi granted a perpetual lease
of the melwaram and kudiwaram interest in a portion of the inam
lands to one Chinna Gopiya Goundar, the grandfather of the
plaintiffrespondent
on an annual rent of Rs. 70. The demised lands
are the subjectmatter
of the present suit. Since 1883 until January
1950 Chinna Gopiya Goundar and his descendants were in
uninterrupted possession and enjoyment of the suit lands. In 1915,
the mathadhipathi died without nominating a successor. Since
1915, the descendants of Chinna Gopiya Goundar did not pay any
rent to the math. Between 1915 and 1939 there was no
mathadhipathi. One Basavan Chetti was in management of the
math for a period of 20 years from 1915. The present
mathadhipathi was elected by the disciples of the Math in 1939. In
1928, the Collector of Madurai passed an order resuming the inam
lands and directing the full assessment of the lands and payment of
the assessment to the math for its upkeep. After resumption, the
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lands were transferred from the "B" Register of inam lands to the "A"
Register of ryotwari lands and a joint patta was issued in the name
of the plaintiff and other persons in possession of the lands. The
plaintiff continued to possess the suit lands until January 1950
when the math obtained possession of the lands. On February 18,
1954, the plaintiff instituted the suit against the math represented
by its present mathadhipathi and an agent of the math claiming
recovery of possession of the suit lands. The plaintiff claimed that
he acquired title to the lands by adverse possession and by the
issue of a ryotwari patta in his favour on the resumption of the
inam. The Subordinate Judge of Dindigul accepted the plaintiff's
contention and decreed the suit. On appeal, the District Judge of
Madurai set aside the decree and dismissed the suit. On second
appeal, the High Court of Madras restored the judgment and decree
of the Subordinate Judge. The defendants now appeal to this Court
by special leave. During the pendency of the appeal, the plaintiffrespondent
died and his legal representatives have been substituted
in his place.
2. The plaintiff claimed title to the suit lands on the following
grounds : (1) Since 1915 he and his predecessorsininterest
were in
adverse possession of the lands, and on the expiry of 12 years in
1927, he acquired prescriptive title to the lands under s. 28 read
with Art. 144 of the Indian Limitation Act, 1908; (2) by the
resumption proceedings and the grant of the ryotwari patta a new
tenure was created in his favour and he acquired full ownership in
the lands; and (3) in any event, he was in adverse possession of the
lands since 1928, and on the expiry of 12 years in 1940 he acquired
prescriptive title to the lands under s. 28 read with Art. 134B
of the
Indian Limitation Act, 1908. We are of the opinion that the first
contention of the plaintiff should be accepted, and it is, therefore,
not necessary to consider the other two grounds of his claim.
6. We are inclined to accept the respondents' contention. Under Art.
144 of the Indian Limitation Act, 1908, limitation for a suit by a
math or by any person representing it for possession of immovable
properties belonging to it runs from the time when the possession of
the defendant becomes adverse to the plaintiff. The math is the
owner of the endowed property. Like an idol, the math is a juristic
person having the power of acquiring, owning and possessing
properties and having the capacity of suing and being sued. Being
an ideal person, it must of necessity act in relation to its temporal
affairs through human agency. See Babajirao v. Laxmandas (1904)
ILR 28 Bom 215 (223). It may acquire property by prescription and
may likewise lose property by adverse possession. If the math while
in possession of its property is dispossessed or if the possession of a
stranger becomes adverse, it suffers an injury and has the right to
sue for the recovery of the property. If there is a legally appointed
mathadhipathi, he may institute the suit on its behalf; if not, the de
facto mathadhipathi may do so, see Mahadeo Prasad Singh v. Karia
Bharti 62 Ind App 47 at p.51 and where, necessary, a disciple or
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other beneficiary of the math may take steps for vindicating its legal
rights by the appointment of a receiver having authority to sue on
its behalf, or by the institution of a suit in its name by a next friend
appointed by the Court. With due diligence, the math or those
interested in it may avoid the running of time. The running of
limitation against the math under Art. 144 is not suspended by the
absence of a legally appointed mathadhipathi; clearly, limitation
would run against it where it is managed by a de facto
mathadhipathi. See Vithalbowa v. Narayan Daji, (1893) I.L.R 18
Bom 507 at p.511, and we think it would run equally if there is
neither a de jure nor a de facto mathadhipathi.
10. We hold that by the operation of Art. 144 read with s. 28 of the
Indian Limitation Act, 1908 the title of the math to the suit lands
became extinguished in 1927, and the plaintiff acquired title to the
lands by prescription. He continued in possession of the lands until
January 1950. It has been found that in January 1950 he
voluntarily delivered possession of the lands to the math, but such
delivery of possession did not transfer any title to the math. The suit
was instituted in 1954 and is well within time.
(emphasis supplied)”
8. In Balkrishan vs. Satyaprakash & Ors., 2001 (2) SCC 498, decided
by a Coordinate Bench, the plaintiff filed a suit for declaration of title on
the ground of adverse possession and a permanent injunction. This
Court considered the question, whether the plaintiff had perfected his
title by adverse possession. This Court has laid down that the law
concerning adverse possession is well settled, a person claiming adverse
possession has to prove three classic requirements i.e. nec – nec vi, nec
clam and nec precario. The trial court, as well as the First Appellate
Court, decreed the suit while the High Court dismissed it. This Court
restored the decree passed by the trial court decreeing the plaintiff suit
based on adverse possession and observed:
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“6. The short question that arises for consideration in this appeal is:
whether the High Court erred in holding that the appellant had not
perfected his title by adverse possession on the ground that there
was an order of a Tahsildar against him to deliver possession of the
suit land to the auction purchasers.
7. The law with regard to perfecting title by adverse possession is
well settled. A person claiming title by adverse possession has to
prove three "neck" nec
vi, nec clam and nec precario. In other
words, he must show that his possession is adequate in continuity
in publicity and in extent. In S.M. Karim vs. Bibi Sakina [1964] 6
SCR 780 speaking for this Court Hidayatullah, J. (as he then was)
observed thus:
"Adverse possession must be adequate in continuity, in
publicity and extent and a plea is required at the least to
show when possession becomes adverse so that the starting
point of limitation against the party affected can be found."
14. In Sk. Mukbool Ali vs. Sk. Wajed Hossein, (1876) 25 WR 249 the
High Court held:
"Whatever the decree might have been, the defendant's
possession could not be considered as having ceased in
consequences of that decree, unless he were actually
dispossessed. The fact that there is a decree against him does
not prevent the statute of limitation from running."
15. In our view, the Madras High Court correctly laid down the law
in the aforementioned cases.
17. From the above discussion, it follows that the judgment and
decree of the High Court under challenge cannot be sustained. They
are accordingly set aside and the judgment and decree of the First
Appellate Court confirming the judgment and decree of the trial
court is restored. The appeal is accordingly allowed but in the
circumstances of the case without costs.”
(emphasis supplied)
9. In Des Raj and Ors. v. Bhagat Ram (Dead) by Lrs. and Ors., (2007) 9
SCC 641, a suit filed by the plaintiff for declaration of title and also for a
permanent injunction based on adverse possession. The Courts below
decreed the suit of the plaintiff on the ground of adverse possession. The
same was affirmed by this Court. This Court considered the change
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brought about in the Act by Articles 64 and 65 visàvis
to Articles 142
and 144. Issue No.1 was framed whether the plaintiff becomes the owner
of the suit property by way of adverse possession? This Court has
observed that a plea of adverse possession was indisputably be governed
by Articles 64 and 65 of the Act. This Court has discussed the matter
thus :
“20. A plea of adverse possession or a plea of ouster would
indisputably be governed by Articles 64 and 65 of the Limitation
Act.
22. The mere assertion of title by itself may not be sufficient unless
the plaintiff proves animus possidendi. But the intention on the
part of the plaintiff to possess the properties in suit exclusively and
not for and on behalf of other coowners
also is evident from the fact
that the defendantsappellants
themselves had earlier filed two
suits. Such suits were filed for partition. In those suits the
defendantsappellants
claimed themselves to be coowners
of the
plaintiff. A bare perusal of the judgments of the courts below clearly
demonstrates that the plaintiff had even therein asserted hostile
title claiming ownership in himself. The claim of hostile title by the
plaintiff over the suit land, therefore, was, thus, known to the
appellants. They allowed the first suit to be dismissed in the year
1977. Another suit was filed in the year 1978 which again was
dismissed in the year 1984. It may be true, as has been contended
on behalf of the appellants before the courts below, that a coowner
can bring about successive suits for partition as the cause of action,
therefor, would be a continuous one. But, it is equally wellsettled
that pendency of a suit does not stop running of 'limitation'. The
very fact that the defendants despite the purported entry made in
the revenue settlement record of rights in the year 1953 allowed the
plaintiff to possess the same exclusively and had not succeeded in
their attempt to possess the properties in Village Samleu and/or
otherwise enjoy the usufruct thereof, clearly goes to show that even
prior to institution of the said suit the plaintiffrespondent
had been
in hostile possession thereof.
24. In any event the plaintiff made his hostile declaration claiming
title for the property at least in his written statement in the suit
filed in the year 1968. Thus, at least from 1968 onwards, the
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plaintiff continued to exclusively possess the suit land with a
knowledge of the defendantsappellants.
26. Article 65 of the Limitation Act, 1963, therefore, would in a case
of this nature have its role to play, if not from 1953, but at least
from 1968. If that be so, the finding of the High Court that the
respondent perfected his title by adverse possession and ouster
cannot be said to be vitiated in law.
28. We are also not oblivious of a recent decision of this Court in
Govindammal v. R. Perumal Chettiar and Ors., (2006) 11 SCC 600
wherein it was held: (SCC p. 606, para 8)
“In order to oust by way of adverse possession, one has to lead
definite evidence to show that to the hostile interest of the
party that a person is holding possession and how that can be
proved will depend on facts of each case.”
31. We, having regard to the peculiar facts obtaining in the case, are of
the opinion that the plaintiffrespondent
had established that he
acquired title by ousting the defendantappellants
by declaring hostile
title in himself which was to the knowledge of his cosharers.”
(emphasis supplied)
10. In Kshitish Chandra Bose v. Commissioner of Ranchi, (1981) 2 SCC
103 a threeJudge
Bench of this Court considered the question of
adverse possession by a plaintiff. The plaintiff has filed a suit for
declaration of title and recovery of possession based on Hukumnama and
adverse possession for more than 30 years. The trial court decreed the
suit on both the grounds, ‘title’ as well as of ‘adverse possession’. The
plaintiff's appeal was allowed by this Court. It has been observed by this
Court that adverse possession had been established by a consistent
course of conduct of the plaintiff in the case, possession was hostile to
the full knowledge of the municipality. Thus, the High Court could not
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have interfered with the finding as to adverse possession and could not
have ordered remand of the case to the Judicial Commissioner.
The order of remand and the proceedings thereafter were quashed. This
court restored decree in favour of plaintiff for declaration of title and
recovery of possession and also for a permanent injunction, has dealt
with the matter thus:
“2. The plaintiff filed a suit for declaration of his title and recovery of
possession and also a permanent injunction restraining the
defendant municipality from disturbing the possession of the
plaintiff. It appears that prior to the suit, proceedings under Section
145 were started between the parties in which the Magistrate found
that the plaintiff was not in possession but upheld the possession of
the defendant on the land until evicted in due course of law.
3. In the suit the plaintiff based his claim in respect of plot No.
1735, Ward No. 1 of Ranchi Municipality on the ground that he had
acquired title to the land by virtue of a hukumnama granted to him
by the landlord as far back as April 17, 1912 which is Ex.18. Apart
from the question of title, the plaintiff further pleaded that even if
the land belonged to the defendant municipality, he had acquired
title by prescription by being in possession of the land to the
knowledge of the municipality for more than 30 years, that is to say,
from 1912 to 1957.
10. Lastly, the High Court thought that as the land in question
consisted of a portion of the tank or a land appurtenant thereto,
adverse possession could not be proved. This view also seems to be
wrong. If a person asserts a hostile title even to a tank which as
claimed by the municipality, belonged to it and despite the hostile
assertion of title no steps were taken by the owner, (namely, the
municipality in this case), to evict the trespasser, his title by
prescription would be complete after thirty years.”
(emphasis supplied)
11. In Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,
the plaintiff filed a suit claiming to be in possession for over 70 years.
The plaintiff claimed possession of the excess land from the society, its
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Manager and Defendants Nos.3 to 6. The society denied the rights of the
plaintiff to bring a suit for ejectment or its liability for compensation.
Alternatively, the society claimed the value of improvements. The main
controversy decided by the High Court was whether the plaintiff can
maintain a suit for possession without proof of title. This court observed
that in case the rightful owner does not come forward within the period
of limitation his right is lost, and the possessory owner acquires an
absolute title. The plaintiff was in de facto possession and was entitled
to remain in possession and only the State could evict him. The State
was not impleaded as a party in the case. The action of the society was a
violent invasion of his possession and in the law, as it stands in India,
the plaintiff can maintain a possessory suit under the provisions of the
Specific Relief Act, 1963. The plaintiff has asserted that he had perfected
his title by “adverse possession” but he did not join the State in a suit to
get a declaration. He may be said to have not rested the suit on the
acquired title. The suit was thus limited to recovery of possession from
one who had trespassed against him. The Court observed that for the
plaintiff to maintain suit based on adverse possession, it was necessary
to implead the State Government i.e. the owner of the land as a party to
the suit. A plaintiff can maintain a suit based on adverse possession as
he acquires absolute title. The Court observed:
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“(17) In our judgment this involves an incorrect approach to our
problem. To express our meaning we may begin by reading 1907 AC
73 to discover if the principle that possession is good against all but
the true owner has in any way been departed from. 1907 AC 73
reaffirmed the principle by stating quite clearly:
“It cannot be disputed that a person in possession of land in
the assumed character of owner and exercising peaceably the
ordinary rights of ownership has a perfectly good title against
all the world but the rightful owner. And if the rightful owner
does not come forward and assert his title by the process of
law within the period prescribed by the provisions of the
statute of Limitation applicable to the case, his right is forever
extinguished, and the possessory owner acquires an absolute
title.”
Therefore, the plaintiff who was peaceably in possession was
entitled to remain in possession and only the State could evict him.
The action of the Society was a violent invasion of his possession
and in the law, as it stands in India the plaintiff could maintain a
possessor suit under the provisions of the Specific Relief Act in
which title would be immaterial or a suit for possession within 12
years in which the question of title could be raised. As this was a
suit of latter kind title could be examined. But whose title?
Admittedly neither side could establish title. The plaintiff at least
pleaded the statute of Limitation and asserted that he had perfected
his title by adverse possession. But as he did not join the State in
his suit to get a declaration, he may be said to have not rested his
case on an acquired title. His suit was thus limited to recovering
possession from one who had trespassed against him. The enquiry
thus narrows to this: did the Society have any title in itself, was it
acting under authority express or implied of the true owner or was
it just pleading a title in a third party? To the first two questions we
find no difficulty in furnishing an answer. It is clearly in the
negative. So the only question is whether the defendant could plead
that the title was in the State? Since in every such case between
trespassers the title must be outstanding in a third party a
defendant will be placed in a position of dominance. He has only to
evict the prior trespasser and sit pretty pleading that the title is in
someone else. As Erle J put it in Burling v. Read (1848) 11 QB 904
‘parties might imagine that they acquired some right by merely
intruding upon land in the night, running up a hut and occupying it
before morning'. This will be subversive of the fundamental doctrine
which was accepted always and was reaffirmed in 1907 AC 73. The
law does not, therefore, countenance the doctrine of 'findings
keepings’.
(22) The cases of the Judicial Committee are not binding on us but
we approve of the dictum in 1907 AC 73. No subsequent case has
been brought to our notice departing from that view. No doubt a
great controversy exists over the two cases of (1849) 13 QB 945 and
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(1865) 1 QB 1 but it must be taken to be finally resolved by 1907
AC 73. A similar view has been consistently taken in India and the
amendment of the Indian Limitation Act has given approval to the
proposition accepted in 1907 AC 73 and may be taken to be
declaratory of the law in India. We hold that the suit was
maintainable.”
(emphasis supplied)
12. In Lallu Yashwant Singh (dead) by his legal representative v. Rao
Jagdish Singh & Ors., AIR 1968 SC 620, this Court has observed that
taking forcible possession is illegal. In India, persons are not permitted to
take forcible possession. The law respect possession. The landlord has
no right to reenter
by showing force or intimidation. He must have to
proceed under the law and taking of forcible possession is illegal. The
Court affirmed the decision of Privy Council in Midnapur Zamindary
Company Ltd. V. Naresh Narayan Roy AIR 1924 PC 144 and other
decisions and held:
"10. In Midnapur Zamindary Company Limited v. Naresh Narayan
Roy, 51 Ind App 293 = at p. 299 (AIR 1924 PC 144 at p.147), the
Privy Council observed:
“In India persons are not permitted to take forcible possession;
they must obtain such possession as they are entitled to through
a Court.”
11. In K.K. Verma v. Naraindas C. Malkani (AIR 1954 Bom 358 at p.
360) Chagla C.J., stated that the law in India was essentially
different from the law in England. He observed:
“Under the Indian law the possession of a tenant who has
ceased to be a tenant is protected by law. Although he may not
have a right to continue in possession after the termination of
the tenancy his possession is juridical and that possession is
protected by statute. Under Section 9 of the Specific Relief Act a
tenant who has ceased to be a tenant may sue for possession
against his landlord if the landlord deprives him of possession
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otherwise than in due course of law, but a trespasser who has
been thrown out of possession cannot go to Court under Section
9 and claim possession against the true owner.”
12. In Yar Mohammad v. Lakshmi Das (AIR 1959 All 1 at p.4), the
Full Bench of the Allahabad High Court observed:
“No question of title either of the plaintiff or of the defendant can
be raised or gone into in that case (under Section 9 of the
Specific Relief Act). The plaintiff will be entitled to succeed
without proving any title on which he can fall back upon and the
defendant cannot succeed even though he may be in a position to
establish the best of all titles. The restoration of possession in
such a suit is, however, always subject to a regular title suit and
the person who has the real title or even the better title cannot,
therefore, be prejudiced in any way by a decree in such a suit. It
will always be open to him to establish his title in a regular suit
and to recover back possession.”
The High Court further observed:
“Law respects possession even if there is no title to support it. It
will not permit any person to take the law in his own hands and
to dispossess a person in actual possession without having
recourse to a Court. No person can be allowed to become a Judge
in his own cause. As observed by Edge C.J., in Wali Ahmad Khan
v. Ayodhya Kundu (1891) ILR 13 All. 537 at p.556:
“The object of the section was to drive the persons who wanted to
eject a person into the proper Court and to prevent them from
going with a high hand and ejecting such persons.”
14. In Hillava Subbava v. Narayanappa, (1911) 13 Bom. LR 1200 it
was observed:
“No doubt, the true owner of property is entitled to retain
possession, even though he has obtained it from a trespasser by
force or other unlawful means: Lillu v. Annaji, (1881) ILR 5 Bom.
387 and Bandu v. Naba, (1890) ILR 15 Bom 238.”
We are unable to appreciate how this decision assists the
respondent. It was not a suit under Section 9 of the Specific
Relief Act. In (1881) ILR 5 Bom 387, it was recognised that "if
there is a breach of the peace in attempting to take possession,
that affords a ground for criminal prosecution, and, if the
attempt is successful, for a summary suit also for a restoration
to possession under Section 9 of the Specific Relief Act I of 1877Dadabhai
Narsidas v. The SubCollector
of Broach, (1870) 7
Bom. HC AC 82.” In (1890) ILR 15 Bom 238 it was observed by
Sargent C J., as follows:
“The Indian Legislature has, however, provided for the summary
removal of anyone who dispossesses another, whether peaceably
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or otherwise than by due course of law; but subject to such
provision there is no reason for holding that the rightful owner so
dispossessing the other is a trespasser, and may not rely for the
support of his possession on the title vested in him, as he clearly
may do by English law. This would also appear to be the view
taken by West J., in (1881) ILR 5 Bom 387.”
15. In our opinion, the law on this point has been correctly stated
by the Privy Council, by Chagla C.J., and by the Full Bench of the
Allahabad High Court, in the cases cited above.”
(emphasis supplied)
This Court has approved the decision of the Privy Council as well
as Full Bench of the Allahabad High Court in Yar Mohammad v. Laxmi
Das AIR 1959 All. 1.
13. In Somnath Berman v. Dr. S.P. Raju & Anr. AIR 1970 SC 846, this
Court has recognized the right of a person having possessory title to
obtain a declaration that he was the owner of the land in a suit and an
injunction restraining the defendant from interfering with his possession.
This Court has further observed that section 9 of the Specific Relief Act,
1963 is in no way inconsistent with the position that as against a wrongdoer,
prior possession of the plaintiff, in an action of ejectment is
sufficient title even if the suit is brought more than six months after the
act of dispossession complained of and that the wrongdoer
cannot
successfully resist the suit by showing that the title and the right to
possession vested in a third party. This Court has observed:
"10. In Narayana Row v. Dharmachar, (1903) ILR 26 Mad 514 a
bench of the Madras High Court consisting of Bhashyam Ayyangar
and Moore, JJ. held that possession is, under the Indian, as under
18
the English law, good title against all but the true owner. Section 9
of the Specific Relief Act is in no way inconsistent with the position
that as against a wrongdoer, prior possession of the plaintiff, in an
action of ejectment, is sufficient title, even if the suit be brought
more than six months after the act of dispossession complained of
and that the wrongdoer
cannot successfully resist the suit by
showing that the title and right to possession are in a third person.
The same view was taken by the Bombay High Court in Krishnarao
Yashwant v. Vasudev Apaji Ghotikar, (1884) ILR 8 Bom 871. That
was also the view taken by the Allahabad High Courtsee
Umrao
Singh v. Ramji Das, ILR 36 All 51, Wali Ahmad Khan v. Ahjudhia
Kandu, (1891) ILR 13 All 537. In Subodh Gopal Bose v. Province of
Bihar, AIR 1950 Pat 222 the Patna High Court adhered to the view
taken by the Madras, Bombay and Allahabad High Courts. The
contrary view taken by the Calcutta High Court in Debi Churn
Boldo v. Issur Chunder Manjee, (1883) ILR 9 Cal 39; Ertaza Hossein
v. Bany Mistry, (1883) ILR 9 Cal 130, Purmeshur Chowdhry v. Brijo
Lall Chowdhry, (1890) ILR 17 Cal 256 and Nisa Chand Gaita v.
Kanchiram Bagani, (1899) ILR 26 Cal 579, in our opinion does not
lay down the law correctly."
(emphasis supplied)
It is apparent from the aforesaid decision that a person is entitled
to bring a suit of possessory title to obtain possession even though the
title may vest in a third person. A person in the possessory title can get
injunction also, restraining the defendant from interfering with his
possession.
14. Given the aforesaid, a question to ponder is when a person having
no title, merely on the strength of possessory title can obtain an
injunction and can maintain a suit for ejectment of a trespasser. Why a
person who has perfected his title by way of adverse possession cannot
file a suit for obtaining an injunction protecting possession and for
recovery of possession in case his dispossession is by a third person or
by an owner after the extinguishment of his title. In case a person in
19
adverse possession has perfected his title by adverse possession and
after the extinguishment of the title of the true owner, he cannot be
successfully dispossessed by a true owner as the owner has lost his
right, title and interest.
15. In Padminibai v. Tangavva & Ors., AIR 1979 SC 1142, a suit was
filed by the plaintiff for recovery of possession on the basis that her
husband was in exclusive and open possession of the suit lands
adversely to the defendant for a period exceeding 12 years and his
possession was never interrupted or disturbed. It was held that he
acquired ownership by prescription. The suit filed within 12 years of his
death was within limitation. Thus, the plaintiff was given the right to
recover possession based on adverse possession as Tatya has acquired
ownership by adverse possession. This Court has observed thus:
“1. Tatya died on February 2, 1955. The respondents, Tangava and
Sundra Bai are the co widows of Tatya. They were coplaintiffs
in
the original suit.
11. We have, therefore, no hesitation in holding in agreement with
the courts below that Tatya had acquired title by remaining in
exclusive and open possession of the suit lands adversely to
Padmini Bai for a period far exceeding 12 years, and this possession
was never interrupted or disturbed. He had thus acquired
ownership by prescriptions.”
(emphasis supplied)
16. In State of West Bengal v. The Dalhousie Institute Society, AIR 1970
SC 1778, this Court considered the question of adverse possession of
Dalhousie Institute Society based on invalid grant. It was held by this
20
Court that title was acquired by adverse possession based on invalid
grant and the right was given to the claimant/applicant to claim
compensation. This Court held that a person acquires title by adverse
possession and observed:
"16. There is no material placed before us to show that the grant
has been made in the manner required by law though as a fact a
grant of the site has been made in favour of the Institute. The
evidence relied on by the Special Land Acquisition Judge and the
High Court also clearly establishes that the respondent has been in
open, continuous and uninterrupted possession and enjoyment of
the site for over 60 years. In this respect, the material documentary
evidence referred to by the High Court clearly establishes that the
respondent has been treated as owner of the site not only by the
Corporation but also by the Government. The possession of the
respondent must have been on the basis of the grant made by the
Government, which, no doubt, is invalid in law. As to what exactly
is the legal effect of such possession has been considered by this
Court in Collector of Bombay v. Municipal Corporation of the City of
Bombay, [1952] SCR 43 as follows:
“...the position of the respondent Corporation and its
predecessor in title was that of a person having no legal title
but nevertheless holding possession of the land under colour
of an invalid grant of the land in perpetuity and free from rent
for the purpose of a market. Such possession not being
referable to any legal title it was prima facie adverse to the
legal title of the Government as owner of the land from the very
moment the predecessor in title of the respondent Corporation
took possession of the land under the invalid grant. This
possession has continued openly, as of right and
uninterruptedly for over 70 years and the respondent
Corporation has acquired the limited title to it and its
predecessor in title had been prescribing for during all this
period, that is to say, the right to hold the land in perpetuity
free from rent but only for the purposes of a market in terms of
the Government Resolution of 1865....”
17. The above extract establishes that a person in such possession
clearly acquires title by adverse possession. In the case before us,
there are concurrent findings recorded by the High Court and the
Special Land Acquisition Judge in favour of the respondent on this
point and we agree with those findings."
(emphasis supplied)
21
It is apparent from the aforesaid discussion that title is acquired by
adverse possession.
17. In Mohammed Fateh Nasib v. Swarup Chand Hukum Chand & Anr.
AIR 1948 PC 76, Privy Council considered the question of adverse
possession by a plaintiff. In the plaint, his case was based upon
continuous, open, exclusive and undisturbed possession. He averred that
he had acquired an indefeasible title to the suit property by adverse
possession against the whole world. In 1928, he was surreptitiously
dispossessed from the suit property. The question arose for consideration
whether the plaintiff remained in adverse possession for 12 years and
whether it was adverse to the wakf. The Privy Council agreed with the
findings of the High Court that the “plaintiff” and his predecessorsininterest
had remained in possession of the suit property for more than 12
years before 1928 to acquire a title under section 28 of the Act and the
plaintiff was not a mere trespasser. The court further held that title by
the adverse possession can be established against wakf property also.
The Privy Council observed:“
On that basis the first question to be determined is whether the
plaintiff proved continuous, open exclusive and undisturbed
possession of the property in suit for 12 years and upwards before
1928 when he was dispossessed, that being the relevant date under
Article 142 of the Limitation Act. If that question is answered in the
affirmative then the further question arises whether such
possession was adverse to the wakf.
22
Their Lordships agree that this is the correct test to apply and,
having examined the evidence, oral and documentary, they agree
with the finding of the High Court that the plaintiff and his
predecessorsininterest
had been in possession of the suit property
for more than 12 years prior to 1928 so as to acquire a title under
Section 28 of the Limitation Act. It is no doubt true, as the learned
Subordinate Judge held, that the claim of a mere trespasser to title
by adverse possession will be confined strictly to the property of
which he has been in actual possession. But that principle has no
application in the present case. The plaintiff is not a mere
trespasser; he himself purchased the property for a large sum and
Aberjan, upon whose possession the claim ultimately rests, was put
into possession by an order of the Court, whether or not such order
was rightly made. Apart from this, their Lordships think that the
character of the possession established by the plaintiff was
adequate to found title even in a trespasser.
Their Lordships feel no hesitation in agreeing with the High
Court that adverse possession by the plaintiff and his predecessorsininterest
has been proved for the requisite period.
The only question which then remains is whether such
possession was adverse to the wakf. It is not disputed that in law a
title by adverse possession can be established against wakf
property, but it is clear that a trustee for a charity entering into
possession of property belonging to the charity cannot, whilst
remaining a trustee, change the character of his possession, and
assert that he is in possession as a beneficial owner.”
(emphasis supplied)
The plaintiff's title was declared based on adverse possession.
18. The question of perfecting title by adverse possession again came to
be considered by the Privy Council in Gunga Govind Mundul & Ors. v.
The Collector of the TwentyFour
Pergunnahs & Ors. 11 M.I.A. 212, it
observed that there is an extinguishment of title by the law of limitation.
The practical effect is the extinction of the title of the owner in favour of
the party in possession and this right is an absolute interest. The Privy
Council has observed thus:
23
“4.The title to sue for dispossession of the lands belongs, in such a
case, to the owner whose property is encroached upon ; and if he
suffers his right to be barred by the Law of Limitation, the practical
effect is the extinction of his title in favour of the party in
possession; see Sel. Rep., vol. vi., p. 139, cited in Macpherson, Civil
Procedure, p. 81 (3rd ed.). Now, in this case, the family represented
by the Appellants is proved to have been upwards of thirty years in
possession. The High Court has decided that the Prince's title is
barred, and the effect of that bar must operate in favour of the party
in possession.
Supposing that, on the extinction of the title of a person having a
limited interest, a right to enter might arise in favour of a
remainderman or a reversioner, the present case has no
resemblance to that.”
8. It is of the utmost consequence in India that the security which
long possession efforts should not be weakened. Disputes are
constantly arising about boundaries and about the identity of lands,
contiguous
owners are apt to charge one another with
encroachment. If twelve years’ peaceable and uninterrupted
possession of lands, alleged to have been enjoyed by encroachment
on the adjoining lands, can be proved, a purchaser may taken that
title in safety; but, if the party out of possession could set up a sixty
years’ law of limitation, merely by making common cause with a
Collector, who could enjoy security against interruption? The true
answer to such a contrivance is; the legal right of the Government is
to its rent; the lands owned by others; as between private owners
contesting inter see the title of the lands, the law has established a
limitation of twelve years; after that time, it declares not simply that
the remedy is barred, but that that the title is extinct in favour of
the possessor. The Government has no title to intervene in such
contests, as its title to its rent in the nature of jumma is unaffected
by transfer simply of proprietary right in the lands. The liability of
the lands of Jumma is not affected by a transfer of proprietary right,
whether such transfer is affected simply by transfer of title, or less
directly by adverse occupation and the law of limitation.”
(emphasis supplied)
19. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, a question
arose under section 66 of the Code of Civil Procedure, 1908 which
provides that no suit shall be maintained against a certified purchaser.
The question arose for consideration that in case possession is disturbed
24
whether a plaintiff can take the alternative plea that the title of the
person purchasing benami in court auction was extinguished by long
and uninterrupted adverse possession of the real owner. If the
possession of the real owner ripens into title under the Act and he is
dispossessed, he can sue to obtain possession. This Court has held that
in such a case it would be open for the plaintiff to take such a plea but
with full particulars so that the starting point of limitation can be found.
A mere suggestion in the relief clause that there was an uninterrupted
possession for several 12 years or that the plaintiff had acquired an
absolute title was not enough to raise such a plea. Long possession was
not necessarily an adverse possession and the prayer clause is not a
substitute for a plea of adverse possession. The opinion expressed is that
plaintiff can take a plea of adverse possession but with full particulars.
The Court has observed:
“5. As an alternative, it was contended before us that the title of
Hakir Alam was extinguished by long and uninterrupted adverse
possession of Syed Aulad Ali and after him of the plaintiff. The High
Court did not accept this case. Such a case is, of course, open to a
plaintiff to make if his possession is disturbed. If the possession of
the real owner ripens into title under the Limitation Act and he is
dispossessed, he can sue to obtain possession, for he does not then
rely on the benami nature of the transaction. But the alternative
claim must be clearly made and proved. The High Court held that
the plea of adverse possession was not raised in the suit and
reversed the decision of the two courts below. The plea of adverse
possession is raised here. Reliance is placed before us on Sukhan
Das v. Krishanand, ILR 32 Pat 353 and Sri Bhagwan Singh v. Ram
Basi Kuer, AIR 1957 Pat 157, to submit that such a plea is not
necessary and alternatively, that if a plea is required, what can be
considered a proper plea. But these two cases can hardly help the
appellant. No doubt, the plaint sets out the fact that after the
25
purchase by Syed Aulad Ali, benami in the name of his soninlaw
Hakir Alam, Syed Aulad Ali continued in possession of the property
but it does not say that this possession was at any time adverse to
that of the certified purchaser. Hakir Alam was the soninlaw
of
Syed Aulad Ali and was living with him. There is no suggestion that
Syed Aulad Ali ever asserted any hostile title against him or that a
dispute with regard to ownership and possession had ever arisen.
Adverse possession must be adequate in continuity, in publicity and
extent and a plea is required at the least to show when possession
becomes adverse so that the starting point of limitation against the
party affected can be found. There is no evidence here when
possession became adverse if it at all did, and a mere suggestion in
the relief clause that there was an uninterrupted possession for
"several 12 years" or that the plaintiff had acquired "an absolute
title" was not enough to raise such a plea. Long possession is not
necessarily adverse possession and the prayer clause is not a
substitute for a plea. The cited cases need hardly be considered
because each case must be determined upon the allegations in the
plaint in that case. It is sufficient to point out that in Bishun Dayal
v. Kesho Prasad, AIR 1940 PC 202 the Judicial Committee did not
accept an alternative case based on possession after purchase
without a proper plea."
(emphasis supplied)
20. There is an acquisition of title by adverse possession as such, such
a person in the capacity of a plaintiff can always use the plea in case any
of his rights are infringed including in case of dispossession. In Mandal
Revenue Officer v. Goundla Venkaiah & Anr., (2010) 2 SCC 461 this Court
has referred to the decision in State of Rajasthan v. Harphool Singh
(2000) 5 SCC 652 in which the suit was filed by the plaintiff based on
acquisition of title by adverse possession. This Court has referred to
other decisions also in Annakili v. A. Vedanayagam (2007) 14 SCC 308
and P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59. It has been
observed that there can be an acquisition of title by adverse possession.
It has also been observed that adverse possession effectively shifts the
26
title already distanced from the paper owner to the adverse possessor.
Right thereby accrues in favour of the adverse possessor. This Court has
considered the matter thus:
"48. In State of Rajasthan v. Harphool Singh, 2000 (5) SCC 652,
this Court considered the question whether the respondents had
acquired title by adverse possession over the suit land situated at
NoharBhadra
Road at Nohar within the State of Rajasthan. The
suit filed by the respondent against his threatened dispossession
was decreed by the trial court with the finding that he had acquired
title by adverse possession. The first and second appeals preferred
by the State Government were dismissed by the lower appellate
court and the High Court respectively. This Court reversed the
judgments and decrees of the courts below as also of the High Court
and held that the plaintiffrespondent
could not substantiate his
claim of perfection of title by adverse possession. Some of the
observations made on the issue of acquisition of title by adverse
possession which have bearing on this case are extracted below:
(SCC p. 660, para 12)
“12. So far as the question of perfection of title by adverse
possession and that too in respect of public property is
concerned, the question requires to be considered more seriously
and effectively for the reason that it ultimately involves
destruction of right/title of the State to immovable property and
conferring upon a thirdparty
encroacher title where he had
none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy,
AIR 1957 SC 314, adverted to the ordinary classical requirement
that
it should be nec vi, nec clam, nec precario that
is the
possession required must be adequate in continuity, in publicity,
and in extent to show that it is possession adverse to the
competitor. It was also observed therein that whatever may be
the animus or intention of a person wanting to acquire title by
adverse possession, his adverse possession cannot commence
until he obtains actual possession with the required animus.”
50. Before concluding, we may notice two recent judgments in
which law on the question of acquisition of title by adverse
possession has been considered and reiterated. In Annakili v. A.
Vedanayagam, 2007 (14) SCC 308, the Court observed as under:
(SCC p. 316, para 24)
“24. Claim by adverse possession has two elements: (1) the
possession of the defendant should become adverse to the
plaintiff; and (2) the defendant must continue to remain in
possession for a period of 12 years thereafter. Animus
possidendi as is well known is a requisite ingredient of adverse
27
possession. It is now a wellsettled
principle of law that mere
possession of the land would not ripen into possessory title for
the said purpose. Possessor must have animus possidendi and
hold the land adverse to the title of the true owner. For the said
purpose, not only animus possidendi must be shown to exist,
but the same must be shown to exist at the commencement of
the possession. He must continue in the said capacity for the
period prescribed under the Limitation Act. Mere long
possession, it is trite, for a period of more than 12 years without
anything more does not ripen into a title.”
51. In P.T. Munichikkanna Reddy v. Revamma, 2007 (6) SCC 59,
the Court considered various facets of the law of adverse possession
and laid down various propositions including the following: (SCC
pp. 66 & 68, paras 5 & 8)
x x x
8. … to assess a claim of adverse possession, twopronged
enquiry is required:
1. Application of limitation provision thereby jurisprudentially
"wilful neglect" element on part of the owner established. Successful
application in this regard distances the title of the land from the
paperowner.
2. Specific positive intention to dispossess on the part of the
adverse possessor effectively shifts the title already distanced from
the paperowner,
to the adverse possessor. Right thereby accrues in
favour of adverse possessor as intent to dispossess is an express
statement of urgency and intention in the upkeep of the property.
(emphasis in original)”
(emphasis supplied)
21. In P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, this
Court has observed as under:
2. The defendantrespondents
in their written statement denied and
disputed the aforementioned assertion of the plaintiffs and pleaded
their own right, title and interest as also possession in or over the
said 1 acre 21 guntas of land. The learned trial Judge decreed the
suit inter alia holding that the plaintiffappellants
have
acquired title by adverse possession as they have been in
possession of the lands in question for a period of more than 50
years. On an appeal having been preferred thereagainst by the
respondents before the High Court, the said judgment of the trial
court was reversed holding:
28
“(i) … The important averments of adverse possession are
twofold. One is to recognise the title of the person against whom
adverse possession is claimed. Another is to enjoy the property
adverse to the titleholder’s
interest after making him known that
such enjoyment is against his own interest. These two averments
are basically absent in this case both in the pleadings as well as
in the evidence….
(ii) The finding of the court below that the possession of the
plaintiffs became adverse to the defendants between 193436
is
again an error apparent on the face of the record. As it is now
clarified before me by the learned counsel for the appellants that
the plaintiffs’ claim in respect of the other land of the defendants
is based on the subsequent sale deed dated 571936.
It is settled law that mere possession even if it is true for any
number of years will not clothe the person in enjoyment with the
title by adverse possession. As indicated supra, the important
ingredients of adverse possession should have been satisfied.”
6. Efficacy of adverse possession law in most jurisdictions depends
on strong limitation statutes by operation of which right to access
the court expires through efflux of time. As against rights of the
paperowner,
in the context of adverse possession, there evolves a
set of competing rights in favour of the adverse possessor who has,
for a long period of time, cared for the land, developed it, as against
the owner of the property who has ignored the property. Modern
statutes of limitation operate, as a rule, not only to cut off
one’s right to bring an action for the recovery of property that
has been in the adverse possession of another for a specified
time but also to vest the possessor with title. The intention of
such statutes is not to punish one who neglects to assert rights, but
to protect those who have maintained the possession of property for
the time specified by the statute under claim of right or colour of
title. (See American Jurisprudence, Vol. 3, 2d, p. 81.) It is important
to keep in mind while studying the American notion of adverse
possession, especially in the backdrop of limitation statutes, that
the intention to dispossess cannot be given a complete goby.
Simple application of limitation shall not be enough by itself for the
success of an adverse possession claim.
8. Therefore, to assess a claim of adverse possession, twopronged
enquiry is required:
1. Application of limitation provision thereby jurisprudentially
“wilful neglect” element on part of the owner established.
Successful application in this regard distances the title of the
land from the paperowner.
2. Specific positive intention to dispossess on the part of the
adverse possessor effectively shifts the title already
distanced from the paperowner,
to the adverse possessor.
Right thereby accrues in favour of adverse possessor as
29
intent to dispossess is an express statement of urgency and
intention in the upkeep of the property.
30. In Karnataka Wakf Board the law was stated, thus: (SCC p. 785,
para 11)
“11. In the eye of the law, an owner would be deemed to be in
possession of a property so long as there is no intrusion. Nonuse
of the property by the owner even for a long time won’t affect his
title. But the position will be altered when another person takes
possession of the property and asserts a right over it. Adverse
possession is a hostile possession by clearly asserting hostile
title in denial of the title of the true owner. It is a wellsettled
principle that a party claiming adverse possession
must prove that his possession is ‘nec vi, nec clam, nec
precario’, that is, peaceful, open and continuous. The
possession must be adequate in continuity, in publicity, and in
extent to show that their possession is adverse to the true owner.
It must start with a wrongful disposition of the rightful owner
and be actual, visible, exclusive, hostile and continued over the
statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v.
Sukhi and D.N. Venkatarayappa v. State of Karnataka.) Physical
fact of exclusive possession and the animus possidendi to hold
as owner in exclusion to the actual owner are the most important
factors that are to be accounted in cases of this nature. Plea of
adverse possession is not a pure question of law but a blended
one of fact and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came into
possession, (b) what was the nature of his possession, (c)
whether the factum of possession was known to the other party,
(d) how long his possession has continued, and (e) his possession
was open and undisturbed. A person pleading adverse
possession has no equities in his favour. Since he is trying to
defeat the rights of the true owner, it is for him to clearly plead
and establish all facts necessary to establish his adverse
possession.”
22. In State of Haryana v. Mukesh Kumar & Ors., (2011) 10 SCC 404,
the court considered the question whether the plaintiff had become the
owner of the disputed property by way of adverse possession and in that
context considered the decisions in Revamma (supra) and Fairweather v.
St. Marylebone Property Co. Ltd. (1962) 2 AER 288 (HL) and Taylor v.
30
Twinberrow 1930 All ER Rep 342 (DC) and observed that adverse
possession confers negative and consequential right effected only as
somebody else's positive right to access the court is barred by operation
of law. Right of the paper owner is extinguished and that competing
rights evolve in favour of adverse possessor as he cared for the land,
developed it as against the owner of the property who had ignored the
property. This Court has observed thus:
“32. This Court in Revamma (2007) 6 SCC 59 observed that to
understand the true nature of adverse possession, Fairweather v. St
Marylebone Property Co. Ltd. (1962) 2 All ER 288 (HL) can be
considered where the House of Lords referring to Taylor v.
Twinberrow (1930) 2 K.B. 16 termed adverse possession as a
negative and consequential right effected only because somebody
else's positive right to access the court is barred by operation of law.
As against the rights of the paperowner,
in the context of adverse
possession, there evolves a set of competing rights in favour of the
adverse possessor who has, for a long period of time, cared for the
land, developed it, as against the owner of the property who has
ignored the property.”
(emphasis supplied)
23. In Krishnamurthy S. Setlur (dead) by LRs. v. O.V. Narasimha Setty &
Ors., (2007) 3 SCC 569, the Court pointed out that the duty of the
plaintiff while claiming title based on adverse possession. The suit was
filed by the plaintiff on 11.12.1981. The trial court held that the plaintiff
has perfected the title in the suit lands based on adverse possession, and
decreed the suit. This Court has observed that the plaintiff must plead
and prove the date on and from which he claims to be in exclusive,
continuous and undisturbed possession. The question arose for
31
consideration whether tenant's possession could be treated as
possession of the owner for computation of the period of 12 years under
the provisions of the Act. What is the nature of pleading required in the
plaint to constitute a plea of adverse possession has been emphasised by
this Court and another question also arose whether the plaintiff was
entitled to get back the possession from the defendants? This Court has
observed thus:
"12. Section 27 of the Limitation Act, 1963 operates to extinguish
the right to property of a person who does not sue for its possession
within the time allowed by law. The right extinguished is the right
which the lawful owner has and against whom a claim for adverse
possession is made, therefore, the plaintiff who makes a claim for
adverse possession has to plead and prove the date on and from
which he claims to be in exclusive, continuous and undisturbed
possession. The question whether possession is adverse or not is
often one of simple fact but it may also be a conclusion of law or a
mixed question of law and fact. The facts found must be accepted,
but the conclusion drawn from them, namely, ouster or adverse
possession is a question of law and has to be considered by the
court.
13. As stated, this civil appeal arises from the judgment of the High
Court in RFA No. 672 of 1996 filed by the original defendants under
Section 96 CPC. The impugned judgment, to say the least, is a
bundle of confusion. It quotes depositions of witnesses as findings.
It quotes findings of the courts below which have been set aside by
the High Court in the earlier round. It criticizes the findings given
by the coordinate Bench of the High Court in the earlier round of
litigation. It does not answer the question of law which arises for
determination in this case. To quote an example, one of the main
questions which arises for determination, in this case, is whether
the tenant's possession could be treated as possession of the owner
in computation of the period of twelve years under Article 64 of the
Limitation Act, 1963. Similarly, as an example, the impugned
judgment does not answer the question as to whether the decision
of the High Court dated 14.8.1981 in RSA No. 545 of 1973 was at
all binding on the LRs. of Iyengar/their alienees. Similarly, the
impugned judgment does not consider the effect of the judgment
dated 10.11.1961 rendered by the trial court in Suit No. 94 of 1956
filed by K.S. Setlur against Iyengar inter alia for reconveyance in
which the court below did not accept the contention of K.S. Setlur
32
that the conveyance executed by Kalyana Sundram Iyer in favour of
Iyengar was a benami transaction. Similarly, the impugned
judgment has failed to consider the effect of the observations made
by the civil court in the suit filed by Iyengar for permanent
injunction bearing Suit No. 79 of 1949 to the effect that though
Shyamala Raju was in possession and cultivation, whether he was a
tenant under Iyengar or under K.S. Setlur was not conclusively
proved. Similarly, the impugned judgment has not at all considered
the effect of Iyengar or his LRs. not filing a suit on title despite being
liberty given to them in the earlier Suit No. 79 of 1949. In the
matter of adverse possession, the courts have to find out the plea
taken by the plaintiff in the plaint. In the plaint, the plaintiff who
claims to be owner by adverse possession has to plead actual
possession. He has to plead the period and the date from which he
claims to be in possession. The plaintiff has to plead and prove that
his possession was continuous, exclusive and undisturbed to the
knowledge of the real owner of the land. He has to show a hostile
title. He has to communicate his hostility to the real owner. None of
these aspects have been considered by the High Court in its
impugned judgment. As stated above, the impugned judgment is
under Section 96 CPC, it is not a judgment under Section 100 CPC.
As stated above, adverse possession or ouster is an inference to be
drawn from the facts proved (sic) that work is of the first appellate
court.”
(emphasis supplied)
24. In P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, the
plaintiff claimed the title based on adverse possession. The court
observed:
“5. Adverse possession in one sense is based on the theory or
presumption that the owner has abandoned the property to the
adverse possessor on the acquiescence of the owner to the hostile
acts and claims of the person in possession. It follows that sound
qualities of a typical adverse possession lie in it being open,
continuous and hostile. [See Downing v. Bird 100 So. 2d 57 (Fla.
1958); Arkansas Commemorative Commission v. City of Little Rock
227 Ark. 1085: 303 S.W. 2d 569 (1957); Monnot v. Murphy 207 N.Y.
240 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo.
494: 273 P. 908: 97 A.L.R. 1 (1929).
6. Efficacy of adverse possession law in most jurisdictions depend
on strong limitation statutes by operation of which right to access
the court expires through efflux of time. As against rights of the
paperowner,
in the context of adverse possession, there evolves a
33
set of competing rights in favour of the adverse possessor who has,
for a long period of time, cared for the land, developed it, as against
the owner of the property who has ignored the property. Modern
statutes of limitation operate, as a rule, not only to cut off one's
right to bring an action for the recovery of property that has been in
the adverse possession of another for a specified time but also to
vest the possessor with title. The intention of such statutes is not to
punish one who neglects to assert rights but to protect those who
have maintained the possession of property for the time specified by
the statute under claim of right or colour of title. (See American
Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind
while studying the American notion of Adverse Possession,
especially in the backdrop of Limitation Statutes, that the intention
to dispossess cannot be given a complete go by. Simple application
of limitation shall not be enough by itself for the success of an
adverse possession claim.”
(emphasis supplied)
25. In Halsbury’s Laws of England, 4th Edn., Vol. 28, para 777
positions of person in adverse possession has been discussed and it has
been observed on the basis of various decisions that a person in
possession has a transmissible interest in the property and after
expiration of the statutory period, it ripens as good a right to possession.
Para 777 is as under:
“777. Position of person in adverse possession: While a person
who is in possession of land without title continues in possession,
then, before the statutory period has elapsed, he has a
transmissible interest in the property which is good against all the
world except the rightful owner, but an interest which is liable at
any moment to be defeated by the entry of the rightful owner; and, if
that person is succeeded in possession by one claiming through him
who holds until the expiration of the statutory period, the successor
has then as good a right to the possession as if he himself had
occupied for the whole period.”
(emphasis supplied)
26. In Halsbury's Laws of England, extinction of title by the effect of the
expiration of the period of limitation has also been discussed in Para 783
34
and once right is lost to recover the possession, the same cannot be revested
by any reentry
or by a subsequent acknowledgment of title. Para
783 is extracted hereunder:
“783. Extinction of title: At the expiration of the periods
prescribed by the Limitation Act 1939 for any person to bring an
action to recover land (including a redemption action) or an action
to enforce an advowson, the title of that person to the land or
advowson is extinguished. This is subject to the special provisions
relating to settled land and land held on trust and the provisions for
constituting the proprietor of registered land a trustee for the
person who has acquired title against him. The extinguished title
cannot afterward be revested either by reentry
or by a subsequent
payment or acknowledgment of title. A rentcharge
is extinguished
when the remedy to recover it is barred."
(emphasis supplied)
27. Nature of title acquired by adverse possession has also been
discussed in the Halsbury’s Laws of England in Para 785. It has been
observed that adverse possession leaves the occupant with a title gained
by the fact of possession and resting on the infirmity of the rights of
others to eject him. Same is a “good title”, both at law and in equity. Para
785 is also extracted hereunder:
“785. Nature of title acquired: The operation of the statutory
provision for the extinction of title is merely negative; it extinguishes
the right and title of the dispossessed owner and leaves the
occupant with a title gained by the fact of possession and resting on
the infirmity of the right of others to eject him.
A title gained by the operation of the statute is a good title,
both at law and in equity, and will be forced by the court on a
reluctant purchaser. Proof, however, that a vendor and those
through whom he claims have had independent possession of an
estate for twelve years will not be sufficient to establish a saleable
title without evidence to show the state of the title at the time that
possession commenced. If the contract for purchase is an open one,
possession for twelve years is not sufficient, and a full length of the
title is required. Although possession of land is prima facie evidence
of seisin in fee, it does not follow that a person who has gained a
title to land from the fact of certain persons being barred of their
35
rights has the fee simple vested in himself; for, although he may
have gained an indefeasible title against those who had an estate in
possession, there may be persons entitled in reversion or remainder
whose rights are quite unaffected by the statute.”
(emphasis supplied)
28. In an article published in Harvard Law Review on "Title by Adverse
Possession" by Henry W. Ballantine, as to the question of adverse
possession and acquisition of title it has been observed on strength of
various decisions that adverse possession vests the possessor with the
complete title as effectually as if there had been a conveyance by the
former owner. As held in Toltec Ranch Co. v. Cook, 191 U.S. 532, 542
(1903). But the title is independent, not derivative, and “relates back” to
the inception of the adverse possession, as observed. (see Field v.
Peoples, 180 Ill. 376, 383, 54 N.E. 304 (1899); Bellefontaine Co. v.
Niedringhaus, 181 Ill. 426, 55 N.E. 184 (1899). Cf. La Salle v. Sanitary
District, 260 Ill. 423, 429, 103 N.E. 175 (1913); AMES, LECTURES ON
LEGAL HIST. 197; 3 ANGLOAMERICAN
ESSAYS, 567). The adverse
possessor does not derive his title from the former owner, but from a new
source of title, his possession. The "investitive fact” is the disseisin and
exercise of possession as observed in Camp v. Camp, 5 Conn. 291 (1824);
Price v. Lyon, 14 Conn. Conn. 279, 290 (1841); Coal Creek, etc. Co. v.
East Tenn. I. & C. Co., 105 Tenn. 563; 59 S.W. 634, 636 (1900). It has
also been observed that titles to property should not remain uncertain
36
and in dispute, but that continued de facto exercise and assertion of a
right should be conclusive evidence of the de jure existence of the right.
29. In Lala Hem Chand v. Lala Pearey Lal & Ors., AIR 1942 PC 64, the
question arose of the adverse possession where a trustee had been in
possession for more than 12 years under a trust which is void under the
law, the Privy Council observed that if the right of a defendant owner is
extinguished the plaintiff acquires it by adverse possession. In case the
owner suffers his right to be barred by the law of limitation, the practical
effect is the extinction of his title in favour of the party in possession. The
relevant portion is extracted hereunder:
“…. The inference from the evidence as a whole is irresistible that it
was with his knowledge and implied consent that the building was
consecrated as a Dharmasala and used as such for charitable and
religious purposes and that Lala Janaki Das, and after him,
Ramchand, was in possession of the property till 1931. As forcibly
pointed out by the High Court in considering the merits of the case,
"during the course of more than 20 years that this building
remained in the charge of Janaki Das, and on his death in that of
his son, Ramchand, the defendant had never once claimed the
property as his own or objected to its being treated as dedicated
property." This Board held in ('66) 11 M.I.A. 345: 7 W.R. 21: 1
Suther. 676: 2 Sar. 284 (P.C.), Gunga Gobindas Mundal v. The
Collector of the Twenty Four Pergunnahs, at page 361, that if the
owner whose property is encroached upon suffers his right to be
barred by the law of limitation the practical effect is the extinction of
his title in favour of the party in possession." Section 28, Limitation
Act, says:
“At the determination of the period hereby limited to any person
for instituting a suit for possession of any property his right to such
property shall be extinguished." Lala Janaki Das and Ramchand
having held the property adversely for upwards of 12 years on
behalf of the charity for which it was dedicated, it follows that the
title to it, acquired by prescription, has become vested in the charity
and that of the defendant, if he had any, has become extinguished
by operation of S. 28, Limitation Act. Their Lordships have no doubt
37
that the Subordinate Judge would also have come to the conclusion
that the title of the defendant has become barred by limitation, had
he not been of the view that Lala Janaki Das retained possession of
the suit property as trustee for the benefit of the author of the trust
and his legal representatives, and that presumably S. 10, Limitation
Act, would apply to the case, though he does not specifically refer to
the section. For the above reasons, their Lordships hold that the
plaintiffs have established their title to the suit property by adverse
possession for upwards of 12 years before the defendant obtained
possession of it; and since the suit was brought in January 1933,
within so short a time as two years of dispossession, the plaintiffs
are entitled to recover it from the defendant, whose title to hold it if
he had any has become extinct by limitation, in whichever manner
he may have obtained possession permissively or by trespass.”
(emphasis supplied)
30. In Tichborne v. Weir, (1892) 67 LT 735, it has been observed that
considering the effect of limitation is not that the right of one person is
conveyed to another, but that the right is extinguished and destroyed. As
the mode of conveying the title is not prescribed in the Act, the Act does
not confer it. But at the same time, it has been observed that yet his
“title under the Act is acquired” solely by the extinction of the right of the
prior rightful owner; not by any statutory transfer of the estate. In the
said case question arose for transfer of the lease formerly held by Baxter
to Giraud who for over 20 years had been in possession of the land
without any acknowledgment to Baxter who had equitably mortgaged the
lease to him. The question arose whether the statute transferred the
lease to Giraud and he became the tenant of the landlord. In that
context, the aforesaid observations have been made. It has been held
what is acquired would depend upon what right person has against
38
whom he has prescribed and acquisition of title by adverse possession
would not more be than that. The lease is not transferred under a statute
but by the extinguishment of rights. The other person ripens the right.
Thus, the decision does not run counter to the various decisions which
have been discussed above and deals with the nature of title conferred by
adverse possession.
31. The decision in Taylor v. Twinberrow, (1930) 2 K.B. 16 has also
been referred to submit to the contrary. In that case, also it was a case of
a dispute between the tenant and subtenant.
The Kings Bench
considered the effect of the expiration of 12 years' adverse possession
under section 7 of the Act of 1833 and observed that that does confer a
title, whereas its effect is merely negative to destroy the power of the then
tenant Taylor to claim as a landlord against the subtenant
in
possession. It would not destroy the right of the freeholder, if Taylor's
tenancy was determined, by the freeholder, he could eject the subtenant.
Thus, Taylor's right would be defeated and not that of the
freeholder who was the owner and gave the land on the tenancy to
Taylor. In our opinion, the view is in consonance with the law of adverse
possession as administered in India. As the basic principle is that if a
person is having a limited right, a person against him can prescribe only
to acquire that limited right which is extinguished and not beyond that.
39
There is a series of decisions laying down this proposition of law as to the
effect of adverse possession as against limited owner if extinguishing title
of the limited owner not that of reversion or having some other title.
Thus, the decision in Taylor v. Twinberrow (supra) does not negate the
acquisition of title by way of adverse possession but rather affirms it.
32. The operation of the statute of limitation in giving a title is merely
negative; it extinguishes the right and title of the dispossessed owner and
leaves the occupant with a title gained by the fact of possession and
resting on the infirmity of the right of others to eject him. Perry v.
Clissold (1907) AC 73 has been referred to in Nair Service Society Ltd. v.
K.C. Alexander (supra) in which it has been observed that it cannot be
disputed that a person in possession of land in the assumed character
of owner and exercising peaceably the ordinary rights of ownership has
a perfectly good title against all the world but the original owner, and if
the original owner does not come forward and assert his title by the
process of law within the period prescribed under the statute of
limitation applicable to the case, his right is forever extinguished and the
possessory owner acquires an absolute title. In Ram Daan (Dead) through
LRs. v. Urban Improvement Trust, (2014) 8 SCC 902, this Court has
observed thus:
40
“11. It is settled position of law laid down by the Privy Council in
Perry v. Clissold 1907 AC 73 (PC) (AC p. 79)
“It cannot be disputed that a person in possession of land in
the assumed character of owner and exercising peaceably the
ordinary rights of ownership has a perfectly good title against all
the world but the rightful owner. And if the rightful owner does
not come forward and assert his title by the process of law
within the period prescribed by the provisions of the Statute of
Limitations applicable to the case, his right is forever
extinguished, and the possessory owner acquires an absolute
title.”
The above statement was quoted with the approval by this Court in
Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165. Their
Lordships at para 22 emphatically stated: (AIR p. 1175)
“22. The cases of the Judicial Committee are not binding on
us but we approve of the dictum in Perry v. Clissold 1907 AC 73
(PC).””
33. The decision in Fairweather v. St. Marylebone Property Co. Ltd.
(1962) 2 AER 288 (HL) has also been referred, to submit that adverse
possession is a negative concept where the possession had been taken
against the tenant, its operation was only to bar his right against men
in possession. As already discussed above, it was a case of limited
right possessed by the tenant and a subtenant
could only perfect his
right against the tenant who inducted him as subtenant
prescribed
against the tenant and not against the freeholder. The decision does
not run counter to any other decision discussed and is no help to hold
that plaintiff cannot take such a plea or hold that no right is conferred
by adverse possession. It may be a negative right but an absolute one.
41
It confers title as owner in case extinguishment is of the right of
ownership.
34. The plaintiff’s right to raise the plea of adverse possession has been
recognized in several decisions of the High Court also. If such a case
arises on the facts stated in the plaint and the defendant is not taken by
surprise as held in Nepen Bala Debi v. Siti Kanta Banerjee, (1910) 8 Ind
Cas 41 (DB) (Cal), Ngasepam Ibotombi Singh v. Wahengbam Ibohal Singh
& Anr., AIR 1960 Manipur 16, Aboobucker s/o Shakhi Mahomed Laloo v.
Sahibkhatoon, AIR 1949 Sindh 12, Bata Krista Pramanick v. Shebaits of
Thakur Jogendra Nath Maity & Ors., AIR 1919 Cal. 339, Ram Chandra Sil
& Ors. v. Ramanmani Dasi & Ors. AIR 1917 Cal. 469, Shiromani
Gurdwara Parbhandhak Committee, Khosakotla & Anr. v. Prem Das &
Ors., AIR 1933 Lah 25, Rangappa Nayakar v. Rangaswami Nayakar, AIR
1925 Mad. 1005; Shaikh Alimuddin v. Shaikh Salim, 1928 IC 81 (PC).
35. In Pannalal Bhagirath Marwadi v. Bhaiyalal Bindraban Pardeshi
Teli, AIR 1937 Nagpur 281, it has been observed that inbetween
two
trespassers, one who is wrongly dispossessed by the other trespasser,
can sue and recover possession. A person in possession cannot be
dispossessed otherwise than in due course of law and can sue for
injunction for protecting the possession as observed in Krishna Ram
42
Mahale (dead) by L.Rs v. Shobha Venkat Rao, (1989) 4 SCC 131, State of
U.P. v. Maharaja Dharmander Prasad Singh, (1989) 2 SCC 505.
36. In Radhamoni Debi v. The Collector of Khulna & Ors. (1900) ILR 27
Cal. 943 it was observed that to constitute a possessory title by adverse
possession, the possession required to be proved must be adequate in
continuity in publicity, and in the extent to show for a period of 12 years.
37. In Somnath Burman v. S.P. Raju, (1969) 3 SCC 129, the Court
recognized the right of the plaintiff to such declaration of title and for an
injunction. Section 9 of the Specific Relief Act is in no way inconsistent,
the wrongdoer cannot resist suit on the ground that title and right are in
a third person. Right to sue is available to the plaintiff against owners as
well as others by taking the plea of adverse possession in the plaint.
38. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors.,
(2009) 16 SCC 517, relying on T. Anjanappa v. Somalingappa (2006) 7
SCC 570, observed that title can be based on adverse possession. This
Court has observed thus:
“23. This Court had an occasion to examine the concept of adverse
possession in T. Anjanappa v. Somalingappa, 2006 (7) SCC 570.
The court observed that a person who bases his title on adverse
possession must show by clear and unequivocal evidence that his
title was hostile to the real owner and amounted to denial of his title
to the property claimed. The court further observed that: (SCC
p.577, para 20)
43
“20…. The classical requirements of acquisition of title by
adverse possession are that such possession in denial of the
true owner's title must be peaceful, open and continuous. The
possession must be open and hostile enough to be capable of
being known by the parties interested in the property, though
it is not necessary that should be evidence of the adverse
possessor actually informing the real owner of the former's
hostile action.””
At the same time, this Court has also observed that the law of
adverse possession is harsh and Legislature may consider a change in
the law as to adverse possession.
39. In the light of the aforesaid discussion, when we consider the
decision in Gurdwara Sahib v. Gram Panchayat Village Sirthala & Anr.,
(2014) 1 SCC 669 decided by twoJudge
Bench wherein a question arose
whether the plaintiff is in adverse possession of the suit land this Court
referred to the Punjab & Haryana High Court decision on Gurdwara
Sahib Sannauli v. State of Punjab (2009) 154 PLR 756 and observed that
there cannot be ‘any quarrel’ to the extent that the judgments of 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. The discussion
made is confined to para 8 only. The same is extracted hereunder:
“4. In so far as the first issue is concerned, it was decided in favour
of the plaintiff returning the findings that the appellant was in
adverse possession of the suit property since 13.4.1952 as this fact
had been proved by a plethora of documentary evidence produced
by the appellant. However, while deciding the second issue, the
court opined that no declaration can be sought on the basis of
adverse possession inasmuch as adverse possession can be used as
44
a shield and not as a sword. The learned Civil Judge relied upon the
judgment of the Punjab and Haryana High Court in Gurdwara
Sahib Sannuali v. State of Punjab (2009) 154 PLR 756 and thus,
decided the issue against the plaintiff. Issue 3 was also, in the same
vein, decided against the appellant.
8. There cannot be any quarrel to this extent that 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 are filed against the appellant
and the appellant is arrayed as defendant that it can use this
adverse possession as a shield/defence.”
(emphasis supplied)
It is apparent that the point whether the plaintiff can take the plea
of adverse possession was not contested in the aforesaid decision and
none out of the plethora of the aforesaid decisions including of the larger
Bench were placed for consideration before this Court. The judgment is
based upon the proposition of law not being questioned as the point was
not disputed. There no reason is given, only observation has been
recorded in one line.
40. It is also pertinent to mention that the decision of this court in
Gurudwara Sahib v. Gram Panchayat Village, Sirthala (supra) has been
relied upon in State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj,
(2017) 9 SCC 579. In the said case, no plea of adverse possession was
taken nor issue was framed as such this Court held that in the absence
of pleading, issue and evidence of adverse possession suit could not have
been decreed on that basis. Given the aforesaid, it was not necessary to
go into the question of whether the plaintiff could have taken the plea of
45
adverse possession. Nonetheless, a passing observation has been made
without any discussion of the aspect that the court below should have
seen that declaration of ownership rights over the suit property could be
granted to the plaintiff on strength of adverse possession (see:
Gurudwara Sahib v. Gram Panchayat, Sirthala). The Court observed:
“24. By no stretch of imagination, in our view, such a declaration of
ownership over the suit property and right of easement over a well
could be granted by the trial court in the plaintiff’s favour because
even the plaintiff did not claim title in the suit property on the
strength of “adverse possession”. Neither were there any pleadings
nor any issue much less evidence to prove the adverse possession
on land and for grant of any easementary right over the well. The
courts below should have seen that no declaration of ownership
rights over the suit property could be granted to the plaintiff on the
strength of “adverse possession” (see Gurdwara Sahib v. Gram
Panchayat Village Sirthala, (2014) 1 SCC 669. The courts below also
should have seen that courts can grant only that relief which is
claimed by the plaintiff in the plaint and such relief can be granted
only on the pleadings but not beyond it. In other words, courts
cannot travel beyond the pleadings for granting any relief. This
principle is fully applied to the facts of this case against the
plaintiff.”
(emphasis supplied)
41. Again in Dharampal (Dead) through LRs v. Punjab Wakf Board,
(2018) 11 SCC 449, the court found the averments in counterclaim by
the defendant do not constitute plea of adverse possession as the point of
start of adverse possession was not pleaded and Wakf Board has filed a
suit in the year 1971 as such perfecting title by adverse possession did
not arise at the same time without any discussion on the aspect that
whether plaintiff can take plea of adverse possession. The Court held
46
that in the counterclaim the defendant cannot raise this plea of adverse
possession. This Court at the same relied upon to observe that it was
bound by the decision in Gurdwara Sahib v. Gram Panchayat Village
Sirthala (supra), and logic was applied to the counterclaim also. The
Court observed:
“28. In the first place, we find that this Court in Gurdwara Sahib v.
Gram Panchayat Village Sirthala, (2014) 1 SCC 669 has held in para
8 that a plea of adverse possession cannot be set up by the plaintiff
to claim ownership over the suit property but such plea can be
raised by the defendant by way of defence in his written statement
in answer to the plaintiff’s claim. We are bound by this view.
34. Applying the aforementioned principle of law to the facts of the
case on hand, we find absolutely no merit in this plea of Defendant
1 for the following reasons:
34.1. First, Defendant 1 has only averred in his plaint
(counterclaim) that he, through his father, was in possession of the
suit land since 1953. Such averments, in our opinion, do not
constitute the plea of “adverse possession” in the light of law laid
down by this Court quoted supra.
34.2. Second, it was not pleaded as to from which date, Defendant
1’s possession became adverse to the plaintiff (the Wakf Board).
34.3. Third, it was also not pleaded that when his adverse
possession was completed and ripened into the full ownership in his
favour.
34.4. Fourth, it could not be so for the simple reason that the
plaintiff (Wakf Board) had filed a suit in the year 1971 against
Defendant 1's father in relation to the suit land. Therefore, till the
year 1971, the question of Defendant 1 perfecting his title by
"adverse possession" qua the plaintiff (Wakf Board) did not arise.
The plaintiff then filed present suit in the year 1991 and, therefore,
again the question of perfecting the title up to 1991 qua the plaintiff
did not arise.”
(emphasis supplied)
47
42. In State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj
(supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra),
there is no discussion on the aspect whether the plaintiff can later take
the plea of adverse possession. It does not appear that proposition was
contested and earlier binding decisions were also not placed for
consideration of the Court. As there is no independent consideration of
the question, we have to examine mainly the decision in Gurdwara Sahib
v. Gram Panchayat Village Sirthala (supra).
43. When we consider the decision rendered by Punjab & Haryana
High Court in Gurdwara Sahib Sannauli (supra), which has been referred
by this Court in Gurudwara Sahib v. Gram Panchayat, Sirthala (supra),
the following is the discussion made by the High Court in the said
decision:
“10. I have heard learned Counsel for the parties and perused the
record of the appeal. I find force in the contentions raised by
learned counsel for the respondents. In Bachhaj Nahar v. Nillima
Mandal and Anr. J.T. 2008 (13) S.C. 255 the Hon'ble Supreme
Court has authoritatively laid down that if an argument has been
given up or has not been raised, same cannot be taken up in the
Regular Second Appeal. It is also relevant to mention here that in
Bhim Singh and Ors. v. Zile Singh and Ors., (2006) 3 RCR Civil 97,
this Court has held that no declaration can be sought by a plaintiff
about ownership based on adverse possession as such plea is
available only to a defendant against the plaintiff. Similarly, in
R.S.A. No. 3909 of 2008 titled as State of Haryana v. Mukesh
Kumar and Ors. (2009) 154 P.L.R. 753, decided on 17.03.2009 this
Court has also taken the same view as aforesaid in Bhim Singh's
case (supra).”
48
There is no independent consideration. Only the decision of the
same High Court in Bhim Singh & Ors. v. Zila Singh & Ors. AIR 2006
P&H 195 has been relied upon to hold that no declaration can be sought
by the plaintiff based on adverse possession.
44. In Bhim Singh & Ors. (supra) the plaintiffs had filed a suit for
declaration and injunction claiming ownership based on adverse
possession. Defendants contended that plaintiffs were not in possession.
The Punjab & Haryana High Court in Bhim Singh & Ors. v. Zila Singh &
Ors. (supra) has assigned the reasons and observed thus:
"11. Under Article 64 of the Limitation Act, as suit for possession of
immovable property by a plaintiff, who while in possession of the
property had been dispossessed from such possession, when such
suit is based on previous possession and not based on title, can be
filed within 12 years from the date of dispossession. Under Article
65 of the Limitation Act, a suit for possession of immovable property
or any interest therein, based on title, can be filed by a person
claiming title within 12 years. The limitation under this Article
commences from the date when the possession of the defendant
becomes adverse to the plaintiff. In these circumstances, it is
apparent that to contest a suit for possession, filed by a person on
the basis of his title, a plea of adverse possession can be taken by a
defendant who is in hostile, continuous and open possession, to the
knowledge of the true owner, if such a person has remained in
possession for a period of 12 years. It, thus, naturally has to be
inferred that plea of adverse possession is a defence available only
to a defendant. This conclusion of mine is further strengthened
from the language used in Article 65, wherein, in column 3 it has
been specifically mentioned: "when the possession of the defendant
becomes adverse to the plaintiff." Thus, a perusal of the aforesaid
Article 65 shows that the plea is available only to a defendant
against a plaintiff. In these circumstances, natural inference must
follow that when such a plea of adverse possession is only available
to a defendant, then no declaration can be sought by a plaintiff with
regard to his ownership on the basis of an adverse possession.
12. I am supported by a judgment of Delhi High Court in 1993 3
105 PLR (Delhi Section) 70, Prem Nath Wadhawan v. Inder Rai
Wadhawan.
49
13. The following observations made in the Prem Nath Wadhawan's
case (supra) may be noticed:
“I have given my thoughtful consideration to the submissions
made by the learned Counsel for the parties and have also
perused the record. I do not find any merit in the contention of
the learned Counsel for the plaintiff that the plaintiff has become
absolute owner of the suit property by virtue of adverse
possession as the plea of adverse possession can be raised in
defence in a suit for recovery of possession but the relief for
declaration that the plaintiff has become absolute owner, cannot
be granted on the basis of adverse possession.”
(emphasis supplied)
The Punjab & Haryana High Court has proceeded on the basis that
as per Article 65, the plea of adverse possession is available as a defence
to a defendant.
45. Article 65 of the Act is extracted hereunder:
Description of suit Period of limitation Time from which
period begins to run
65. For possession of
immovable property or
any interest therein
based on title.
Explanation.— For the
purposes of this article—
(a) where the suit is by a
remainderman, a
reversioner (other than a
landlord) or a devisee,
the possession of the
defendant shall be
deemed to become
adverse only when the
estate of the
remainderman,
reversioner or devisee, as
the case may be, falls
Twelve years. When the possession
of the defendant
becomes adverse to
the plaintiff.
50
into possession;
(b) where the suit is by a
Hindu or Muslim entitled
to the possession of
immovable property on
the death of a Hindu or
Muslim female, the
possession of the
defendant shall be
deemed to become
adverse only when the
female dies;
(c) where the suit is by a
purchaser at a sale in
execution of a decree
when the judgmentdebtor
was out of
possession at the date of
the sale, the purchaser
shall be deemed to be a
representative of the
judgmentdebtor
who
was out of possession.
46. The conclusion reached by the High Court is based on an
inferential process because of the language used in the IIIrd Column of
Article 65. The expression is used, the limitation of 12 years runs from
the date when the possession of the defendant becomes adverse to the
plaintiff. Column No.3 of Schedule of the Act nowhere suggests that suit
cannot be filed by the plaintiff for possession of immovable property or
any interest therein based on title acquired by way of adverse possession.
There is absolutely no bar for the perfection of title by way of adverse
possession whether a person is suing as the plaintiff or being sued as a
defendant. The inferential process of interpretation employed by the High
51
Court is not at all permissible. It does not follow from the language used
in the statute. The large number of decisions of this Court and various
other decisions of Privy Council, High Courts and of English courts
which have been discussed by us and observations made in Halsbury
Laws based on various decisions indicate that suit can be filed by
plaintiff on the basis of title acquired by way of adverse possession or on
the basis of possession under Articles 64 and 65. There is no bar under
Article 65 or any of the provisions of Limitation Act, 1963 as against a
plaintiff who has perfected his title by virtue of adverse possession to sue
to evict a person or to protect his possession and plethora of decisions
are to the effect that by virtue of extinguishment of title of the owner, the
person in possession acquires absolute title and if actual owner
dispossesses another person after extinguishment of his title, he can be
evicted by such a person by filing of suit under Article 65 of the Act.
Thus, the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala
(supra) and of the Punjab & Haryana High Court cannot be said to be
laying down the correct law. More so because of various decisions of this
Court to the contrary.
47. In Gurudwara Sahib v. Gram Panchayat, Sirthala (supra)
proposition was not disputed. A decision based upon concession cannot
be treated as precedent as has been held by this Court in State of
52
Rajasthan v. Mahaveer Oil Industries, (1999) 4 SCC 357, Director of
Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638, Uptron India Limited
v. Shammi Bhan (1998) 6 SCC 538. Though, it appears that there was
some expression of opinion since the Court observed there cannot be any
quarrel that plea of adverse possession cannot be taken by a plaintiff.
The fact remains that the proposition was not disputed and no argument
to the contrary had been raised, as such there was no decision on the
aforesaid aspect only an observation was made as to proposition of law,
which is palpably incorrect.
48. The statute does not define adverse possession, it is a common law
concept, the period of which has been prescribed statutorily under the
law of limitation Article 65 as 12 years. Law of limitation does not define
the concept of adverse possession nor anywhere contains a provision
that the plaintiff cannot sue based on adverse possession. It only deals
with limitation to sue and extinguishment of rights. There may be a case
where a person who has perfected his title by virtue of adverse
possession is sought to be ousted or has been dispossessed by a forceful
entry by the owner or by some other person, his right to obtain
possession can be resisted only when the person who is seeking to
protect his possession, is able to show that he has also perfected his title
by adverse possession for requisite period against such a plaintiff.
53
49. Under Article 64 also suit can be filed based on the possessory title.
Law never intends a person who has perfected title to be deprived of filing
suit under Article 65 to recover possession and to render him remediless.
In case of infringement of any other right attracting any other Article
such as in case the land is sold away by the owner after the
extinguishment of his title, the suit can be filed by a person who has
perfected his title by adverse possession to question alienation and
attempt of dispossession.
50. Law of adverse possession does not qualify only a defendant for the
acquisition of title by way of adverse possession, it may be perfected by a
person who is filing a suit. It only restricts a right of the owner to recover
possession before the period of limitation fixed for the extinction of his
rights expires. Once right is extinguished another person acquires
prescriptive right which cannot be defeated by reentry
by the owner or
subsequent acknowledgment of his rights. In such a case suit can be
filed by a person whose right is sought to be defeated.
51. In India, the law respect possession, persons are not permitted to
take law in their hands and dispossess a person in possession by force
as observed in Late Yashwant Singh (supra) by this Court. The suit can
be filed only based on the possessory title for appropriate relief under the
Specific Relief Act by a person in possession. Articles 64 and 65 both are
54
attracted in such cases as held by this Court in Desh Raj v. Bhagat Ram
(supra). In Nair Service Society (supra) held that if rightful owner does
not commence an action to take possession within the period of
limitation, his rights are lost and person in possession acquires an
absolute title.
52. In Sarangadeva Periya Matam v. Ramaswami Gounder, (supra), the
plaintiff’s suit for recovery of possession was decreed against Math based
on the perfection of the title by way of adverse possession, he could not
have been dispossessed by Math. The Court held that under Article 144
read with Section 28 of the Limitation Act, 1908, the title of Math
extinguished in 1927 and the plaintiff acquired title in 1927. In 1950, he
delivered possession, but such delivery of possession did not transfer any
title to Math. The suit filed in 1954 was held to be within time and
decreed.
53. There is the acquisition of title in favour of plaintiff though it is
negative conferral of right on extinguishment of the right of an owner of
the property. The right ripened by prescription by his adverse
possession is absolute and on dispossession, he can sue based on ‘title'
as envisaged in the opening part under Article 65 of Act. Under Article
65, the suit can be filed based on the title for recovery of possession
within 12 years of the start of adverse possession, if any, set up by the
55
defendant. Otherwise right to recover possession based on the title is
absolute irrespective of limitation in the absence of adverse possession
by the defendant for 12 years. The possession as trespasser is not
adverse nor long possession is synonym with adverse possession.
54. In Article 65 in the opening part a suit “for possession of
immovable property or any interest therein based on title” has been used.
Expression “title” would include the title acquired by the plaintiff by way
of adverse possession. The title is perfected by adverse possession has
been held in a catena of decisions.
55. We are not inclined to accept the submission that there is no
conferral of right by adverse possession. Section 27 of Limitation Act,
1963 provides for extinguishment of right on the lapse of limitation fixed
to institute a suit for possession of any property, the right to such
property shall stand extinguished. The concept of adverse possession as
evolved goes beyond it on completion of period and extinguishment of
right confers the same right on the possessor, which has been
extinguished and not more than that. For a person to sue for possession
would indicate that right has accrued to him in presenti to obtain it, not
in futuro. Any property in Section 27 would include corporeal or
incorporeal property. Article 65 deals with immovable property.
56
56. Possession is the root of title and is right like the property. As
ownership is also of different kinds of viz. sole ownership, contingent
ownership, corporeal ownership, and legal equitable ownership. Limited
ownership or limited right to property may be enjoyed by a holder. What
can be prescribable against is limited to the rights of the holder.
Possession confers enforceable right under Section 6 of the Specific Relief
Act. It has to be looked into what kind of possession is enjoyed viz. de
facto i.e., actual, ‘de jure possession’, constructive possession,
concurrent possession over a small portion of the property. In case the
owner is in symbolic possession, there is no dispossession, there can be
formal, exclusive or joint possession. The joint possessor/coowner
possession is not presumed to be adverse. Personal law also plays a role
to construe nature of possession.
57. The adverse possession requires all the three classic requirements
to coexist
at the same time, namely, necvi
i.e. adequate in continuity,
necclam
i.e., adequate in publicity and necprecario
i.e. adverse to a
competitor, in denial of title and his knowledge. Visible, notorious and
peaceful so that if the owner does not take care to know notorious facts,
knowledge is attributed to him on the basis that but for due diligence he
would have known it. Adverse possession cannot be decreed on a title
which is not pleaded. Animus possidendi under hostile colour of title is
57
required. Trespasser’s long possession is not synonym with adverse
possession. Trespasser’s possession is construed to be on behalf of the
owner, the casual user does not constitute adverse possession. The
owner can take possession from a trespasser at any point in time.
Possessor looks after the property, protects it and in case of agricultural
property by and the large concept is that actual tiller should own the
land who works by dint of his hard labour and makes the land cultivable.
The legislature in various States confers rights based on possession.
58. Adverse possession is heritable and there can be tacking of adverse
possession by two or more persons as the right is transmissible one. In
our opinion, it confers a perfected right which cannot be defeated on
reentry except as provided in Article 65 itself. Tacking is based on the
fulfillment of certain conditions, tacking maybe by possession by the
purchaser, legatee or assignee, etc. so as to constitute continuity of
possession, that person must be claiming through whom it is sought to
be tacked, and would depend on the identity of the same property under
the same right. Two distinct trespassers cannot tack their possession to
constitute conferral of right by adverse possession for the prescribed
period.
59. We hold that a person in possession cannot be ousted by another
person except by due procedure of law and once 12 years' period of

adverse possession is over, even owner's right to eject him is lost and
the possessory owner acquires right, title and interest possessed by
the outgoing person/owner as the case may be against whom he has
prescribed. In our opinion, consequence is that once the right, title or
interest is acquired it can be used as a sword by the plaintiff as well as
a shield by the defendant within ken of Article 65 of the Act and any
person who has perfected title by way of adverse possession, can file a
suit for restoration of possession in case of dispossession. In case of
dispossession by another person by taking law in his hand a
possessory suit can be maintained under Article 64, even before the
ripening of title by way of adverse possession. By perfection of title on
extinguishment of the owner’s title, a person cannot be remediless. In
case he has been dispossessed by the owner after having lost the right
by adverse possession, he can be evicted by the plaintiff by taking the
plea of adverse possession. Similarly, any other person who might have
dispossessed the plaintiff having perfected title by way of adverse
possession can also be evicted until and unless such other person has
perfected title against such a plaintiff by adverse possession. Similarly,
under other Articles also in case of infringement of any of his rights, a
plaintiff who has perfected the title by adverse possession, can sue and
maintain a suit.

60. When we consider the law of adverse possession as has developed
visàvis
to property dedicated to public use, courts have been loath to
confer the right by adverse possession. There are instances when such
properties are encroached upon and then a plea of adverse possession is
raised. In Such cases, on the land reserved for public utility, it is
desirable that rights should not accrue. The law of adverse possession
may cause harsh consequences, hence, we are constrained to observe
that it would be advisable that concerning such properties dedicated to
public cause, it is made clear in the statute of limitation that no rights
can accrue by adverse possession.
61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram
Panchayat Village Sirthala (supra) and decision relying on it in State of
Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and
Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be
said to be laying down the law correctly, thus they are hereby overruled.
We hold that plea of acquisition of title by adverse possession can be
taken by plaintiff under Article 65 of the Limitation Act and there is no
bar under the Limitation Act, 1963 to sue on aforesaid basis in case of
infringement of any rights of a plaintiff.
60
62. Let the matters be placed for consideration on merits before the
appropriate Bench.
……………………..J.
(Arun Mishra)
……………………..J.
(S. Abdul Nazeer)
New Delhi; .…………………….J.
August 07, 2019. (M.R. Shah)
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