Section 27 Limitation Act: When Delay Destroys Title

Section 27 of the Limitation Act, 1963 is one of the most significant provisions in property law because it goes beyond merely barring a remedy and can extinguish the owner’s right itself. If a person entitled to recover possession of property does not file the suit within the prescribed limitation period, the law treats the right to that property as extinguished.

This is why Section 27 is often described as an exception to the general principle of limitation law. In most cases, expiry of limitation only bars the legal remedy, but under Section 27, the title of the dispossessed owner may itself be lost when the statutory period for a possession suit expires.

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What is ouster of co-sharer? which law is related to it?

A three judge bench of this Court in P. Lakshmi Reddy v. R. Lakshmi Reddy AIR 1957 SC 1789, while examining the necessary conditions for applicability of doctrine of ouster to the shares of co-owners, held as follows: {Para 22}

4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [MANU/PR/0072/1933 : (1933) LR 61 IA 78, 82]). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna [(1900) LR 27 IA 136, 140]). But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Cores v. Appuhamy [(1912) AC 230)]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1858-1859 of 2016 

Decided On: 26.02.2016

 Nagabhushanammal  Vs. C. Chandikeswaralingam

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Author: Kurian Joseph, J.

Citation: MANU/SC/0231/2016.

Read full judgment here: Click here

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From Possession to Paper: SC reaffirms adverse-possession title as a “pre‑existing right” (Mukesh v. State of M.P., 2024 INSC 1026) -A View point

 The Supreme Court in Mukesh v. State of Madhya Pradesh (decided 20 Dec 2024) held that where a compromise/consent decree merely recognises a litigant’s pre-existing right in the suit property (including a right that may have matured from continuous adverse possession), such a decree does not require compulsory registration under Section 17(2)(vi) of the Registration Act, 1908, and—on the facts—cannot be treated as a “conveyance” attracting stamp duty for mutation.

This is significant for adverse possession because the Court expressly relies on Ravinder Kaur Grewal to reiterate that continuous, uninterrupted adverse possession can confer right, title and interest and can be used as a sword—supporting the “pre-existing right” analysis.

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Supreme Court: No Registration Or Stamp Duty Required For Compromise Decree Acquiring Property With Pre-Existing Right

 According to the Court, a compromise decree would not require registration if the below mentioned three conditions mentioned under Section 17(2)(vi) are fulfilled: -

"(i)There must be a compromise decree as per the terms of the compromise without any collusion;

(ii)The compromise decree must pertain to the subject property in the suit; and

(iii)There must be a pre-existing right over the subject property, and the compromise decree should not create a right afresh."

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 14808 OF 2024

(Arising out of SLP (C)No. 4293 of 2021)

MUKESH Vs THE STATE OF MADHYA PRADESH & ANR. 

Author: R. MAHADEVAN, J.

Citation: 2024 INSC 1026

Dated: DECEMBER 20, 2024.

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Supreme Court: Adverse Possession Plea Can't Be Raised For First Time At Appellate Stage

The determination of adverse possession depends upon sifting of facts and circumstances, indicative of adverse possession, and then, upon testing of the evidence in the light of the law applicable. The Appellate Court may allow the setting up of the plea of adverse possession for the first time in appeal provided, the facts on the record are sufficient to support it, and the opposite party is not taken by surprise, but otherwise, a declaration of title by adverse possession will not be given where the claim is not set out distinctly in the pleadings or in issues. In Shiro Kumari Debi v. Gobind Shaw Tanti reported in MANU/WB/0029/1877 : I.L.R. 2 Cal. 418, Markby J., observed at page 242, that where the question of 12 years' possession had not been properly raised either in the plaint or in the issues, and the Defendant had no proper notice that such a point was going to be raised, it was not open to the lower appellate Court to declare in Plaintiff's favour on the strength of the title which had not been alleged. Plaintiff's suit was dismissed. {Para 28}

29. In the case at hand if plea of adverse possession had been taken in the plaint, and if that plea had been traversed by the Defendants and then proper issues framed, a heavy burden would have laid on the Plaintiffs to lead evidence in support of their hostile claim and a corresponding opportunity of rebuttal would have been given by law to the Defendants. In this case it is inconceivable that the question of adverse possession can become the subject- matter of adjudication on this record in the absence of proper plea, issue or proof.

30. The above discussion leads us to the only conclusion, and that is, that, unless the plea of adverse possession has. been specifically raised in the pleadings, put in issue, and then cogent and convincing evidence led on a multitude of points, and an opportunity to refute the case made out by the Plaintiff, availed of by the Defendant, the plea of adverse possession cannot be allowed to be flung as a surprise, on an unsuspecting Defendant, for the first time in appeal.

 IN THE SUPREME COURT OF INDIA

Special Leave Petition (Civil) No. 22070/2025

Decided On: 08.08.2025

Kishundeo Rout and Ors. Vs. Govind Rao and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Citation: 2025 INSC 956,MANU/SC/1059/2025.

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Supreme Court: Suit for declaration of title simpliciter is not maintainable without claiming consequential relief of possession

 In Ram Saran v. Ganga Devi [MANU/SC/0523/1972 : (1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [MANU/SC/0136/1993 : 1993 Supp (3) SCC 129] this Court dealt with a similar issue where the Plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v. Raghubir Singh [MANU/SC/0289/2011 : 2011:INSC:97 : (2011) 4 SCC 567).{Para 56}

 

57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief.

58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-Plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same.

30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr. LRs (2-Judge Bench) MANU/SC/0354/2013 : 2013:INSC:236 : (2014) 14 SCC 502, the purpose behind Section 34 was elucidated by this Court. It was observed that the purpose behind the inclusion of the proviso is to prevent multiplicity of proceedings. It was further expounded that a mere declaratory decree remains non-executable in most cases. This Court noted that the suit was never amended, even at a later stage to seek the consequential relief and therefore, it was held to be not maintainable. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3854 of 2014

Decided On: 13.02.2024

Vasantha (Dead) thr. L.R. Vs. Rajalakshmi (Dead) thr. L.Rs.

Hon'ble Judges/Coram:

Hrishikesh Roy and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation:  MANU/SC/0105/2024.

Read full Judgment here: Click here.

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Supreme Court Explains basic concept of Adverse possession and its rational

In Saroop Singh v. Banto (2-Judge Bench) MANU/SC/1146/2005 : 2005:INSC:500 : (2005) 8 SCC 330, this Court observed that Article 65 states that 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. Further relying on Karnataka Board of Wakf v. Govt. of India (2-Judge Bench) MANU/SC/0377/2004 : 2004:INSC:276 : (2004) 10 SCC 779, it observed that the 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 related to adverse possession. Plea of adverse possession is not a pure question of law but a blend 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 prove his adverse possession.

{Para 20}

21. This Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan (2-Judge Bench) MANU/SC/4083/2008 : 2008:INSC:1075 : (2009) 16 SCC 517, reiterating the observations made in P.T. Munichikkanna Reddy v. Revamma (2-Judge Bench) MANU/SC/7325/2007 : 2007:INSC:453 : (2007) 6 SCC 59 in respect of the concept of adverse possession observed that 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 the rights of the paper-owner, 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 a claim of right or colour of title.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3854 of 2014

Decided On: 13.02.2024

Vasantha (Dead) thr. L.R. Vs. Rajalakshmi (Dead) thr. L.Rs.

Hon'ble Judges/Coram:

Hrishikesh Roy and Sanjay Karol, JJ.

Author: Sanjay Karol, J.

Citation:  MANU/SC/0105/2024.

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Under which circumstances onus of proof is on defendant to prove Adverse possession?

 It is trite law that once the title of the property has been upheld namely a finding has been recorded by a judgment and decree in the name of plaintiff in an earlier suit, in such circumstances, the onus to prove acquisition by adverse possession lay on the defendant. This proposition gets support from the judgment of this court in Saroop Singh Vs. Banto and Others (2005) 8 SCC 330. It states:

“28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.’

8. In the present case, the title of the property has been decreed in the name of Mudegowda vide order dated 10.09.1987 passed in O.S. No. 22 of 1986 and thus there was no requirement for the deceased respondent to establish possession prior to the institution of the suit. It is apt and appropriate to note at this juncture that appellants herein had failed to establish that they were in possession of the suit schedule property to claim the relief of adverse possession.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 5217 of 2011.

PRASANNA AND OTHERS Vs MUDEGOWDA (D) BY LRS.

Coram: RAJESH BINDAL; J., ARAVIND KUMAR; J. 

Author: Aravind Kumar, J.

Dated:  April 27, 2023

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What is basic concept of ouster of a co-owner?

 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law. {Para 28}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1858-1859 of 2016 

Decided On: 26.02.2016

 Nagabhushanammal  Vs. C. Chandikeswaralingam

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Author: Kurian Joseph, J.

Citation: MANU/SC/0231/2016.

Read full Judgment here: Click here

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Can the person claiming to be the immovable property's owner take the defence of the title by adverse possession?

The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession, In the instant case the defendants have put forward defences which are irreconcilable’ and mutually destructive and inconsistent with one another.”

18. It is pertinent to note that in the present case, the defendant no. 1 has claimed rights in the suit property on the basis of being an owner. Reference may also be made to paragraph 3 at page no. 7 of the written statement, which is set out below:

“The entire consideration amount as well as stamp duty was paid by Smt. Krishna Gupta, Sapan Gupta wife and son of defendant no. 1 and further confirmed that since the Sale Deed or transfer documents cannot be executed and registered for the time being and as and when, this would be permissible, he would transfer the same in favour of Shri. Vijay Gupta and has also stated that the possession has been handed over to Shri. Vijay Gupta as a owner who is fully authorized to use it in any manner whatsoever and there will be no right to Late Ashok Kumar or his legal heirs in future. It is submitted that the Transfer Deed is incapable of execution even today and defendant reserve his right to file appropriate legal proceedings for transfer as and when the same would be permissible.”

19. In light of the dicta in Rama Kanta Jain (supra), the plea of adverse possession in the present case would not be available to the defendant no. 1, as he has claimed himself to be the owner in possession of the suit property.

 In the High Court of Delhi at New Delhi

(Before Amit Bansal, J.)

Anu Gupta Vs Vijay Gupta and Others 

CS(OS) 250/2020 and I.A. 11222/2021 (O-XXXIX R-2A of CPC)

Decided on August 8, 2022, 

Citation: 2022 SCC OnLine Del 2391

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Whether Suit for declaration based on adverse possession having matured into ownership is Maintainable?

 The High Court on examination of judgment of this Court had opined that the appellant as plaintiff cannot seek a declaration based on adverse possession having matured into ownership on the premise that the plea of adverse possession was only a plea of defence and not of establishing rights as a plaintiff though injunction suit would be maintainable. The moot point is that the legal position in this behalf now stands enunciated to the contrary in terms of the judgment of this Court in Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.- 2019 (8) SCC 729.

The aforesaid being the position, the application filed by respondent No.1 under Order VII Rule 11, CPC predicated on a contrary legal view could not have been sustained and thus, the order of the High Court is set aside and the application of respondent No.1 stands rejected with the direction to the trial Court to try the suit on merits as expeditiously as possible.

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION 

 CIVIL APPEAL NOS.1701-1702/2022 

DARSHAN KAUR BHATIA Vs RAMESH GANDHI & ANR.

Coram: SANJAY KISHAN KAUL; M.M. SUNDRESH, JJ. 

Dated: FEBRUARY 28, 2022

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Whether the court would pass judgment on admission if the defendant fails to plead the date on which his adverse possession commenced?

  With regard to what are the necessary pleadings in a case where title through adverse possession is claimed, either as a shield or as a sword, the Supreme Court in Karnataka Board of Wakf (supra) has held that a person who claims adverse possession should show : (a) on what date he had come into possession; (b) what was the nature of his possession; (c) whether the factum of the possession was known to the other party; (d) how long his possession has continued and (e) his possession was open and undisturbed. It is a well settled 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. This possession which is adequate in continuity, in publicity, and in extent must be to show that the possession is adverse to the true owner. It must start with wrongful dispossession of the rightful owner and the actual physical and hostile continued possession over a statutory period.{Para 27}

28. No doubt the defendants have accepted the fact that this suit property had fallen in the share of late Sudhir Kumar Tyagi, the plaintiffs' predecessor-in-interest, on partition of the suit property and he had been its owner since then. However, one fact that stands out is that in 2004, the defendants admit that defendant No. 1 requested late Sudhir Kumar Tyagi to allow them to use the plot which was adjacent to their Sports Complex. In view of the fact that the parties were on good terms, as per the averments in the written statement, late Sudhir Kumar Tyagi had permitted the defendant No. 1 to use the plot. Thus, the possession has not been a result of wrongful dispossession of the rightful owner, when the defendant No. 1 came into the premises.

29. It is trite that long possession will not affect the title of the true owner. Nor would the lack of use of the property by the owner, for a long time, affect his title. It is only when the defendants start asserting hostile title that the clock will start ticking. Strangely, in the entire written statement, the defendants have not stated with any definiteness as to the dates since when they had started asserting their hostile title. That alone would disclose a valid defence to the suit by asserting title by adverse possession. The mere fact that the boundary walls had been built by the defendants cannot be termed as a hostile act against the true owner as the walls had been constructed to define the properties of the defendants after the family partition took place. Nor for that matter, would the construction activities at the site be inferred as an assertion of hostility by the defendant No. 1, as nowhere it is stated that he had done so without the permission of the true owner late Sudhir Kumar Tyagi and in fact claimed title during his life time.

30. In fact, there is no disclosure in this regard, except a bald assertion. But when the written statement is seen in totality, the fact that the parties were in a cordial relationship and the defendant No. 1 himself claims that the water and electricity meters continue to stand in the name of late Sudhir Kumar Tyagi and that he used to reimburse him when payments were made, would show that the defendant No. 1 did not assert independent and hostile title to late Sudhir Kumar Tyagi. It is in this background that a date had to be disclosed when assertion of hostile possession was first made, since limitation would then be counted from that date. An essential ingredient has thus not been pleaded.

31. The defendants had to specifically plead with sufficient clarity when the possession became adverse and the exact date when adverse possession commenced and whether this fact was let known to the real owner. Their only reliance is on construction activities but that fact alone does not establish hostile title, as the initial possession was permissive. It was deemed to have continued till the plaintiffs revoked that permission to the defendants to remain in the suit property. It is only when the required animus to hold the property in a manner hostile to the true owner that it would be possible to determine how many years have passed since such open and hostile possession continued. Without commencement, there cannot be continuation. In the present case, a fundamental plea to submit the claim of adverse possession is missing and the burden on the defendants has not been discharged.

 In the High Court of Delhi at New Delhi

(Before Asha Menon, J.)

Monika Tyagi and Others  Vs Subhash Tyagi and Others 

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Whether court should pass judgment on admission if defence of defendant is moonshine?

 The Division Bench of this court in P.P.A. Impex Pvt. Ltd. (supra) after reference to T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 observed as below:

“9. It appears to us that the approach to be taken under Order XII Rule 6 is akin to what has been enunciated by the Supreme Court in Mechalac Engineers & Manufacturers v. Basic Equipment Corporation, (1976) 4 SCC 687, in the context of Order 37 of the CPC with regard to granting leave to defend a summary suit. This is that if a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting leave to defend and by decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial.

(emphasis added) {Para 24}

25. It further went on to hold that if pleadings that were vague and were in the nature of total moonshine were taken note of, the provision of Order XII Rule 6 would be virtually annihilated.

26. Thus, while disposing of an application under Order XII Rule 6 CPC, the court is fully justified in considering the averments in the written statement to see whether essential facts have been pleaded or whether the defence is a complete moonshine, requiring the Court to not send the case for trial.

 In the High Court of Delhi at New Delhi

(Before Asha Menon, J.)

Monika Tyagi and Others  Vs Subhash Tyagi and Others 

CS(OS) 230/2020 and I.As. 7755/2020 

Decided on December 17, 2021

Citation: 2021 SCC OnLine Del 5400

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Should the court reject the plaint if the caretaker of the property claims an interest in the property against the owner of the property?

 The respondent no.1-plaintiff filed a suit with the

following prayer:

a) for a declaration that the plaintiff is a

lawful occupier as caretaker/servant of the sole

owner of the A schedule property and occupier and

adverse possessor of the B Schedule property.

After the notice was served. The application under

Order VII Rule 11, CPC came to be filed at the behest of

the present appellant-defendant with an objection that the

suit proceedings at the instance of the respondent no.1-

plaintiff who had pleaded himself to be a

caretaker/servant, acquires no interest in the subject

property irrespective of his long possession, is not

maintainable under the law and as regards the plea of

adverse possession is concerned, it lacks material

particulars.

The Trial Judge dismissed the application on the

premise that these are the subject matter of disputes which

can be examined only after the written statement being

filed at the behest of the present appellant-defendant and

is not within the scope of Order VII Rule 11, CPC and order

of Trial Judge came to be confirmed by the High Court by

the impugned order assailed in the present proceedings.

After we heard counsel for the parties and taking into

consideration the material on record, in our considered

view, the Trail Court has committed a manifest error in

appreciating the pleadings on record from the plaint filed

at the instance of respondent no.1-plaintiff who as a

caretaker/servant can never acquire interest in the

property irrespective of his long possession and the

caretaker/servant has to give possession forthwith on

demand and so far as the plea of adverse possession is

concerned as it lacks material particulars and the plaint

does not discloses the cause of action for institution of

the suit.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5779 OF 2021

HIMALAYA VINTRADE PVT. LTD. Vs MD. ZAHID & ANR. 

Dated: SEPTEMBER 16, 2021

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Whether the court can refuse to grant a decree for possession to the plaintiff after declaring his title?

 A decree of possession does not automatically follow a

decree of declaration of title and ownership over property. It is

well settled that, where a Plaintiff wants to establish that the

Defendant’s original possession was permissive, it is for the

Plaintiff to prove this allegation and if he fails to do so,

 it may be presumed that possession was adverse, unless 

there is evidence to the contrary.

51. A person claiming a decree of possession has to establish

his entitlement to get such possession and also establish that

his claim is not barred by the laws of limitation. He must show

that he had possession before the alleged trespasser got

possession.

52. The maxim “possession follows title” is limited in its

application to property, which having regard to its nature, does

not admit to actual and exclusive occupation, as in the case of

open spaces accessible to all. The presumption that possession

must be deemed to follow title, arises only where there is no

definite proof of possession by anyone else. In this case it is

admitted that the Appellant-Defendant is in possession and not

the Respondent Plaintiff.

53. A suit for recovery of possession of immovable property is

governed by the Limitation Act, 1963. Section 3 of the

Limitation Act bars the institution of any suit after  expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.

55. In the absence of any whisper in the plaint as to the date

on which the Appellant-Defendant and/or his Predecessor-in interest
 took possession of the suit property and in the absence

of any whisper to show that the relief of decree for possession

was within limitation, the High Court could not have reversed

the finding of the First Appellate Court, and allowed the

Respondent-Plaintiff the relief of recovery of possession, more

so when the Appellant-Defendant had pleaded that he had been

in complete possession of the suit premises, as owner, with

absolute rights, ever since 1966, when his father had executed

a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

56. As held by the Privy Council in Peri v. Chrishold reported

in (1907) PC 73, 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 right of possession by law, within the period

prescribed by the provisions of the statute of limitation

applicable to the case, his right is forever distinguished, and the

possessory owner acquires an absolute title.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2843-2844 OF 2010

Nazir Mohamed  Vs J. Kamala 

Author: Indira Banerjee, J.

Dated:AUGUST 27, 2020

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Supreme Court: Defendant can not take the plea of title as well as adverse possession simultaneously and from the same date

 We may also note that on the one hand, the appellants herein have sought to take a plea of bar of limitation vis-à-vis the original defendant claiming that possession came to them in 1976, with the suit being filed in 1989. Yet at the same time, it is claimed that the wife had title on the basis of these very documents. The claim of title from 1976 and the plea of adverse possession from 1976 cannot simultaneously hold. On the failure to establish the plea of title, it was necessary to prove as to from which date did the possession of the wife of the defendant amount to a hostile possession in a peaceful, open and continuous manner. We fail to appreciate how, on the one hand the appellants claimed that the wife of the original defendant, appellant 1 herein, had title to the property in 1976 but on their failure to establish title, in the alternative, the plea of adverse possession should be recognised from the very date.

In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial.P.T. Munichikkanna Reddy & Ors. (supra)

35. In the facts of the present case, this fact has not at all been proved.

The possession of Smt. Narasamma, the wife of the defendant, is stated to be on account of consideration paid. Assuming that the transaction did not fructify into a sale deed for whatever reason, still the date when such possession becomes adverse would have to be set out. Thus, the plea of adverse possession is lacking in all material particulars.

36. The possession has to be in public and to the knowledge of the true

owner as adverse, and this is necessary as a plea of adverse possession

seeks to defeat the rights of the true owner. Thus, the law would not be

readily accepting of such a case unless a clear and cogent basis has been made out.M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors.(supra)

37. We may also note another judicial pronouncement in Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr.(2019) 13 SCC 324 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time.

38. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.

39. We have, thus, no hesitation in coming to the conclusion that the appeal is meritless and is accordingly dismissed with costs.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2710 OF 2010

NARASAMMA Vs  A. KRISHNAPPA 

Author: SANJAY KISHAN KAUL, J.

Dated:August 26, 2020.

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Questions and answers on law -part 9

1)Whether a guardian can accompany the victim girl while conducting Test Identification parade relating to the offence under POCSO Act.?

Ans :-Delhi High court Guidelines for test identification parade of accused by child witness

The child witness shall be entitled to accompany his parents/guardians or any of his close relatives so as to make the child comfortable before participating for identifying the accused in the Test Identification Parade.

IN THE HIGH COURT OF DELHI

Crl. A. 513/1998

Decided On: 30.05.2014

Rakesh Kumar  Vs.  State

Hon'ble Judges/Coram:

Kailash Gambhir and Sunita Gupta, JJ.

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Who is entitled to claim the title by adverse possession either person obtained possession under the invalid agreement of sale or invalid sale deed?

In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgment and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognized policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies stopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.

9. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchase throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession such cases is of a derivative character and in clear recognition of and in acknowledgment of the title of the vendor. The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamaliv. Muthiah MANU/SC/0013/1989 : ILR (1965) Mad 254 (supra) cannot, therefore, be doubted.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1945 of 1974

Decided On: 17.11.1989

Achal Reddi Vs   Ramakrishna Reddiar and Ors.

Hon'ble Judges/Coram:

G.L. Oza and M. Fathima Beevi, JJ.

Citations: 1990 AIR 553, 1989 SCR Supl. (2) 193, MANU/SC/0012/1989

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Whether a person who acquires possession of the immovable property under a defective title becomes its owner by adverse possession after passing of twelve years?

It is well settled that a person who enters into possession of the property under an invalid transaction of transfer by way of sale etc. and if he has continued in possession for more than twelve years, then, even if the illegal transfer by itself may not convey the title, but, the adverse possession which commence from the date of entering into possession under the illegal transaction or the sale transaction, entered upon not in accordance with law, then the person acquires and perfects title to the property on completion of twelve years as owner. [see: Alla Baksh v. Mohd. Hussain 2 (1996) CLT 301 Karn; State of West Bengal v. The Dalhousie Institute Society MANU/SC/0447/1970 : AIR 1970 SC 1778 and Smt Chandrakantaben J. Modi and Narendra Jayantilal Modi v. Vadilal Bapalal Modi and Ors. MANU/SC/0506/1989 : AIR 1989 SC 1269].

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Regular First Appeal No. 355 of 1992

Decided On: 25.02.1997

 Kimtu Vs.  Rama Dogra and Ors.

Hon'ble Judges/Coram:

P.K. Palli and R.L. Khurana, JJ.

Citation: 1997 Shimla law Cases 409, MANU/HP/0106/1997

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Whether the plaintiff should prove his title to the immovable property if the defendant raises the plea of adverse possession?

The learned counsel appearing for the appellant relied upon a judgment of this Court in the case of Pappannan and others v. Kolandasamy reported in 2012 (3) MWN (Civil) 536 wherein it has been held as follows: ?20. At this juncture, I would like to dispel any wrong notion in this regard. There is no authority on the point that once the defendant raises the plea of adverse possession, the plaintiff is automatically relieved of his burden to prove his title on the assumption that the defendants should be deemed to have admitted the title of the plaintiff.

21. I recollect and call up the following maxims:

(i) Affirmantis est probare [He who affirms must prove]

(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.

It is the bounden duty of the plaintiff to prove his case. The burden of proof is ambulatory. If the view of the learned counsel for the plaintiff is accepted, then in a title suit, no sooner the defendants file the written statement pleading adverse possession, straightaway the defendants can be directed to enter into the box and prove their case. But this is not the law on that point. The initial burden of proof in cases of this nature is only on the plaintiff, who should enter into the box and prove his title positively as has been already highlighted supra.

23. If at all the plaintiff succeeds in establishing his title by producing such clinching evidence, then it can be taken that the burden of proof got shifted from the plaintiff's side to the defendants' side and the defendants had to prove positively, their plea of adverse possession. However, the first appellate court started picking holes in the case of the defendants without expecting the plaintiff to prove his case. Wherefore, it is glaringly and pellucidly, palpably and axiomatically clear that the first appellate court erroneously decided the appeal.

Madras High Court

K.Vasanthi vs J.Ramanathan on 20 March, 2018

CORAM: MR.JUSTICE S.S.SUNDAR

Second Appeal (MD) No.493 of 2016 

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