Whether the State can claim a right in a immovable property in the basis of gift deed if its name is not mutated in revenue record since long?

 The title of the land in suit had passed on to the State

after the donation and transfer of possession and after

construction, the hospital continued for more than

four decades before filing of the suit. The plaintiff, son

of the donor, also waited for 20 years despite admitted

knowledge of the hospital running over the land in

suit and did not take any action. {Para 26}

27. Article 65 under the Schedule to the Limitation Act

provides limitation of 12 years for filing a suit for

possession based on title. In the present case, merely

because the name of the plaintiff continued in the

revenue records (Jama Bandis), it would not confer

any title upon him. Revenue records (Jama Bandis)

are only entries for the purpose of realising tax by the

Municipal Corporations or land revenue by Gram

Sabhas. The plaintiff having failed to claim relief of

declaration, the suit itself would not be maintainable.

Further, for a suit for declaration, period of limitation

would be three years under Article 58 of the Schedule

to the Limitation Act, which in the present case was

long lost.

28. There is nothing on record available from the cross-examination of defendants 1 and 2 that the documents which they proved were either incorrect, doubtful or suspicious. The documents exhibited by the defendants could not be ignored as they were

public documents, copies of which were filed and duly

proved. Even if the deed was not placed on record but

due explanation was given, the facts of the case and

the evidence on record clearly established the case of

the defendant-appellant that the land in suit had been

donated by Sri Inder Singh, father of the plaintiff way

back in 1958. The lethargy/carelessness on the part

of the State in not getting the revenue records

corrected on the basis of the gift deed would not take

away the rights conferred on the State under the gift

deed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………OF 2024

Arising out of SLP (Civil) No.................of 2024

(@ Diary No.17885 of 2020)

THE STATE OF PUNJAB & ORS. Vs BHAGWANTPAL SINGH ALIAS BHAGWANT SINGH (DECEASED) THROUGH LRS.

Author: VIKRAM NATH, J.

Citation: 2024 INSC 518.

Dated: JULY 10, 2024.

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Whether a person dispossessed in the execution of decree can be put in possession of the property if he fails to prove his right?

 The above judgment of this Court clearly lays down that all issues between the parties in application Under Order XXI Rules 99, 100 and 101 need to be examined by Executing court and decided.

26. The use of the words "all questions (including the questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application Under Rule 97 or Rule 99 " has to be given meaning and full play. It is also relevant to note that prior to Amendment, 1976, Under Rule 103, the aggrieved party could have brought a suit for determination of rights between them but by Amendment, 1976, Rule 103 has been amended to the following effect:

103. Orders to be treated as decrees.--Where any application has been adjudicated upon Under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.

27. The purpose of amendment Under Rule 103 is also that any adjudication made Under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When the Respondent No. 1 filed his application claiming to be put back into possession, it was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The Executing Court has considered the application of Respondent No. 1 in right perspective and has clearly held that Respondent No. 1 failed to prove his title by adverse possession, hence application deserves to be rejected.

28. High Court committed error in observing that in application proceedings Under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without determination of right, title or interest, the application could not have been allowed. We having already extracted the observations of the High Court, where it clearly held that the title in respect of the property by way of adverse possession need not be gone into in the appeal before it. The above observation of the High Court was erroneous. In the proceeding Under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the Respondent No. 1 cannot claim that he should be put back into possession. We do not accept the submission of the learned Counsel for the Respondent that on mere fact that Respondent No. 1 was in possession of the premises prior to being dispossessed, they should be put back into possession. For putting back into possession, the Respondent No. 1 was obliged to establish his title to the property by adverse possession, without which, he could not have asked the Court to put him back into possession.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5632 of 2019 

Decided On: 29.07.2019

Shamsher Singh  Vs.  Nahar Singh 

Hon'ble Judges/Coram:

Ashok Bhushan and Navin Sinha, JJ.

Citation: 2020(2) MHLJ 282

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Leading Supreme Court Judgment on use of title acquired by Adverse possession as 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 3827,2019(6) MHLJ 87,(2019) 8 SCC 729

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Whether Outer limitation for suit for possession based on title is lost if relief of declaration is also sought?

 It was next contended by the learned counsel that the suit
was not filed within limitation. This objection is totally
untenable. Admittedly, the possession of the land was handed
over to the Trust only in the year 1978. The suit was filed in the
year 1987. The appellants contend that the limitation for the suit
is three years as the suit is one for declaration. We are of the
view that this contention has to be rejected. We have culled out
the main prayers made in the suit hereinabove which clearly
indicate that it is a suit not only for declaration but the plaintiffs
also prayed for possession of the suit land. The limitation for
filing a suit for possession on the basis of title is 12 years and,
therefore, the suit is within limitation. Merely because one of the
reliefs sought is of declaration that will not mean that the outer
limitation of 12 years is lost. Reliance placed by the learned

counsel for the appellants on the judgment of this Court in L.C.
Hanumanthappa v. H.B. Shivakumar1 is wholly misplaced.
That judgment has no applicability since that case was
admittedly only a suit for declaration and not a suit for both
declaration and possession. In a suit filed for possession based
on title the plaintiff is bound to prove his title and pray for a
declaration that he is the owner of the suit land because his suit
on the basis of title cannot succeed unless he is held to have
some title over the land. However, the main relief is of
possession and, therefore, the suit will be governed by Article 65
of the Limitation Act, 1963. This Article deals with a suit for
possession of immovable property or any interest therein based
on title and the limitation is 12 years from the date when
possession of the land becomes adverse to the plaintiff. In the
instant case, even if the case of the defendants is taken at the
highest, the possession of the defendants became adverse to the
plaintiffs only on 19.08.1978 when possession was handed over
to the defendants. Therefore, there is no merit in this contention
of the appellants.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4478 OF 2007

SOPANRAO Vs SYED MEHMOOD 

Deepak Gupta, J.
Dated:July 03, 2019.

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Whether one co-owner will become exclusive owner of property by adverse possession if his name is mutated in revenue record?

 Similarly, in the matter of Jatina Khatoon and others v. S.K. Najeeb (Dead) through Legal Representatives and others MANU/SC/1076/2017 : (2018) 11 SCC 717, it has been held by the Supreme Court that mere non-participation in rent and profit of land of a co-sharer does not amount to ouster so as to be given title by adverse possession, relying upon its earlier decision in the matter of Karbalai Begum v. Mohd. Sayeed MANU/SC/0363/1980 : (1980) 4 SCC 396 : (AIR 1981 SC 77).

29. Similarly, in the matter of Darshan Singh and others v. Gujjar Singh (Dead) by L.Rs. and others MANU/SC/0007/2002 : (2002) 2 SCC 62 : (AIR 2002 SC 606), the Supreme Court has held that mere mutation in revenue records in favour of one co-sharer does not amount to ouster unless there is a clear declaration denying title of the other co-sharers and in the normal course possession by one co-sharer of property belonging to several co-sharers will be deemed to be possession on behalf of the others. It was further held in paragraph 9 of the report as under:--

"9. In our view, the correct legal position is that possession of a property belonging to several co-sharers by one co-sharer shall be deemed that he possesses the property on behalf of the other co-sharers unless there has been a clear ouster by denying the title of other co-sharers and mutation in the revenue records in the name of one co-sharer would not amount to ouster unless there is a clear declaration that title of the other co-sharers was denied."

30. Reverting to the facts of the present case in light of the principles of law laid down qua the plea of adverse possession by ouster in the abovestated judgments rendered by Their Lordships of the Supreme Court, it is quite vivid that in the instant case, the defendants have taken the plea of adverse possession half-heartedly by simply stating that the plaintiffs did not assert any title over the suit land right from the year 1954 till the date of institution of suit and neither claimed any title nor made any dispute with regard to the suit land and allowed the defendants to get their names mutated in the revenue records and further allowed division of holdings in the relevant revenue records as per convenience of the defendants and the defendants are in possession right from 1954 and therefore they have become title holders by remaining in possession for long time which has been accepted by the two Courts below. The defendants have taken the following plea of adverse possession and ouster of the plaintiff, in the written statement as under:--

{Vernacular omitted}

31. In the considered opinion of this Court, as held earlier, mere mutation in the revenue records and not asserting title over the suit land would not amount to ouster so as to give title by adverse possession to the defendants particularly when there is no pleading of ouster raised, except that the suit lands have been mutated in their names and there is division of holdings in the name of the defendants and they are in possession of the suit land for long time since 1954. It is already held that possession of joint property by one co-owner is in the eyes of law, possession of all even if one is actually out of possession and passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster or abandonment.

IN THE HIGH COURT OF CHHATTISGARH

Second Appeal No. 450 of 2003

Decided On: 24.01.2019

Lunja  Vs.  Bugad and Ors.

Hon'ble Judges/Coram:

Sanjay K. Agrawal, J.

Citation: AIR 2019 Chhat 83

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Supreme Court: Difference between Article 64 and Article 65 of Limitation Act

Both articles 64 and 65 are rules of limitation, the only difference being that in the former the onus lies on the plaintiff to prove his dispossession within 12 years while in the latter it is for the defendant to prove when his possession became adverse.

Article 64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs' title in which there is no allegation of prior possession and subsequent dispossession alone can fall within article 65. The question whether the article of limitation applicable to a particular suit is article 64 or article 65 has to be decided by reference to pleadings. The plaintiff cannot invoke article 65 by suppressing material facts. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5864 of 1999

Decided On: 10.08.2004

Ramiah Vs. N. Narayana Reddy (Dead) by Lrs.

Hon'ble Judges/Coram:

Ashok Bhan and S.H. Kapadia, JJ.

Citation: 2004 AIR SCW 4695

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Whether Article 65(b) of limitation Act is applicable to suit filed by legal heirs of female who was absolute owner of suit property?

Article 65(b) applies where the female was a 'limited owner' with regard to the disputed property. Hence, if the sale is not for legal purposes, it would not be binding on the estate, the husband's heirs who would be entitled to inherit the estate after the widow's death, would be entitled on such death to sue for the recovery of the property from the purchaser. As their right would be one derived from the husband and not from the widow, it would be independent of the widow and they would be the persons "entitled to sue for possession of the property on the death of the widow" within the meaning of Explanation (b) to Article 65. Hence, the above Explanation will apply to their suit and they would be entitled to a period of 12 years from the widow's death within which to bring the suit as held by Full Bench verdicts in Amar Singh and Ors. v. Sewa Ram and Ors. MANU/PH/0271/1960 : AIR 1960 Punjab 530, Harak Singh v. Kailash Singh and Anr. MANU/BH/0191/1958 : AIR 1958 Pat. 581; and Mt. Lukai W/o Katikram and Ors. v. Niranjan Dayaram and Ors. MANU/MP/0056/1958 : AIR 1958 MP 160.

13. In the instant case possession never became adverse to the Plaintiffs. There is concurrent finding recorded that the Plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The Defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3110 of 2012

Decided On: 25.04.2017

Bapusaheb Chimasaheb Naik-Nimbalkar (dead through L.Rs.) and Ors. Vs.  Mahesh Vijaysinha Rajebhosale and Ors.

Hon'ble Judges/Coram:

Arun Mishra and S. Abdul Nazeer, JJ.

Citation: 2018(1) MHLJ11

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When suit for possession by heir of deceased hindu woman having absolute right in property will not be barred by limitation?

It was submitted on behalf of the appellants that Anandibai became entitled to possession of the property on the death of Shakuntalabai in the year 1962. The name of Chimasaheb, original defendant, was mutated and possession of Chimasaheb became adverse w.e.f. the date of death of Shakuntalabai in the year 1962. Thus the suit preferred by the plaintiffs in the year 1979 beyond a period of 12 years, was hopelessly barred by limitation. We are unable to accept the submission as Explanation (b) toArticle 65 of the Act is applicable only in the case where property is not claimed through the female but independently of woman who has died. The word “entitled” contained in Explanation (b) to Article 65 clearly means a person is entitled independently of the right of the Hindu or Mohammedan female. In case she is absolute owner Article 65(b) will have no application. In other words, it is necessary to trace the right to someone else and not to the Hindu or Mohammedan female, as the case may be. In the instant case, Shakuntalabai, daughter of Shankara Rao became absolute owner of the property on 6.2.1958 and on her death on 1.10.1962, the right accrued to Anandibai on the basis of inheritance made from Shakuntalabai who was the owner of the ½ share in question. When the property is claimed from a woman, Hindu or Mohammedan, who was the full owner, it could not be said that Anandibai or the plaintiffs became entitled to the property independently of the rights of female i.e. Shakuntalabai. Thus the suit filed by such heir of female for separate possession/partition would not be governed by Explanation (b) to Article 65. In such a case limitation would not commence as per Explanation (b) toArticle 65 on death of female Hindu. However, the starting point of limitation for computation of 12 years would be the date of start of adverse possession otherwise.

9. In Hashmat Begam & Anr. v. Mazhar Husain & Ors. (1888) ILR 10 All. 343, a Division Bench has opined that the word “entitled” has to be understood in Explanation (b) to Article 65 as meaning “entitled independently of the right of the Hindu or Muhammadan female”. Similar view has been taken in Ghisa Singh & Anr. v. Gajraj Singh AIR 1916 Oudh 50, Mohammad Yaqub v. Bijai Lal AIR 1918 Oudh 32, and Zarif un-nisa & Ors. v. Chaudhri Shafiq-uz-zaman & Ors. AIR 1923 Oudh 185. Explanation (b) to Article 65 is not applicable to a heir of Hindu or Mohammedan female who is full owner of the property as it could not be said that the person became entitled to the property independently of the right of the female but derives right through her. Hence, the suit by such a heir could not be said to be governed by Explanation (b) to Article 65 as held in Hashmat Begam & Anr. (supra), Ghisa Singh (supra), Mohammad Yaqub (supra), Zarif un-nisa & Ors. (supra); and Malkarjun Mahadev Belure v. Amrita Tukaram Dambare & Ors. AIR 1918 Bom. 142 on consideration of provisions of Article 141 of the Limitation Act.

13. In the instant case possession never became adverse to the plaintiffs. There is concurrent finding recorded that the plaintiffs were in joint possession of the disputed land on the date of filing of the suit. The defendants have taken the plea of ouster and the suit has been filed beyond 12 years of death of Shakuntalabai but they have not been able to prove their adverse possession. On the contrary the finding is that Chimasaheb admitted the title of Anandibai. The finding is that till 1976, Chimasaheb never denied the title of Anandibai. Be that as it may. As adverse possession has not been concurrently found by the three courts and in this case the starting point of limitation would not be the date of death of Shakuntalabai in the year 1962 as she was full owner, as such suit could not be said to be barred by limitation.

Reportable

Supreme Court of India

Bapusaheb Chimasaheb ... vs Mahesh Vijaysinha Rajebhosale & ... on 25 April, 2017

Bench: Arun Mishra, S. Abdul Nazeer

Citation:(2017)7 SCC 769

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When it is not necessary for plaintiff to claim declaration in suit for possession?

We   need   to   ascertain,   at   the   outset,   the   correct   Article   of   the
Schedule to the Limitation Act, under which the present suit falls.   Is it
Article 58 as claimed by Defendant No.2, since the suit seeks a declaration
that  the  Defendants have  no right,  title  or  interest  to occupy the  suit
structure   and   prays   for   a   decree   of   possession   on   the   basis   of   such

declaration, or is it, as claimed by the Plaintiffs,  Article 65, which provides
for   a   suit   to   recover   possession   of   immovable   property   based   on   the
plaintiff's title.  The answer is to be found in the Supreme Court judgment
in   the   case   of    State   of   Maharashtra   Vs.   Pravin   Jethalal   Kamdar1
.
Whenever a suit is filed to recover possession of immovable property based
on title, which the present suit undoubtedly is, there is no need for the
plaintiff to seek any declaration.  The suit must come within Article 65 and
the period of limitation would be 12 years.   The fact that the plaintiff
actually seeks a declaration is of no consequence.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  ORIGINAL SIDE
SUIT NO.2067 OF 2009
 Sharad Shantilal Chheda V  Concord Builders,

     CORAM  :  S.C.GUPTE, J.
    
Dated :  28 JULY 2016
Citation: 2017(2) ALLMR 251

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

 Section 34 of the Specific Relief Act confers

power on the court to grant declaratory reliefs. Section 34

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

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

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

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

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

which provides that when a person possesses a property

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

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

the person in adverse possession has perfected title, it only

means that since the person who had the right to possession

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

adverse possession will be entitled to hold the property as its

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

adverse possession can only be treated as a suit for declaration

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

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

schedule to the Limitation Act deals with the period of limitation

for suits for possession of immovable property or any interest

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

limitation prescribed for suits of the said nature is twelve years

from the date when the possession of the defendant becomes

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

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

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

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

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

defence to persons in possession of immovable property of

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

determination of the period prescribed to any person for

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

such property shall be extinguished. Section 27 would operate

only when a plea of adverse possession is established by the

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

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

dependent on the establishment of adverse possession by the

person in possession and the question of establishment of

adverse possession arises only when a suit is filed for

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

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

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

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

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

judgment reads thus:

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

         possession is again denied holding that such a suit is not

         maintainable.   There cannot be any quarrel to this extent the

         judgments of the courts below are correct and without any

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

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

         against the appellant and appellant is arrayed as defendant that it

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

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                      THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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

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

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

    Citation;AIR 2016 (NOC)368 kerala

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Supreme Court Judgments on adverse possession

In Saroop Singh v. Banto & Ors. [(2005) 8 SCC 330], in which one of us was a member, this Court held : In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant s possession becomes adverse.

Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. T. Anjanappa & Ors. v. Somalingappa & Anr. [(2006) 7 SCC 570], stating : “It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. 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 there should be evidence of the adverse possessor actually informing the real owner of the former s hostile action.”

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