Ravinder Kaur Grewal V Manjith Kaur

----------------------------------------------------------
CaseSearch 2022 (Full Text) Copyright © Em Tee En Publications

28/02/2023
This Product is Licenced to Karthik Sarangan., Adv., Vaikom. | Last updated on 02-02-2023 | Page:1
-----------------------------------------------------------------------
2019 (4) KHC 256

Supreme Court
*Arun Mishra; S. Abdul Nazeer; M. R. Shah, JJ.
Ravinder Kaur Grewal and Others v. Manjit Kaur and Others

Parallel citation(s) : 2019 (4) KHC 256 : ILR 2019 (3) Ker. 599 : 2019 (3) KLT
865 : AIR 2019 SC 3827 : 2019 (8) SCC 729
CaseNo : C. A. No. 7764 of 2014, S. L. P. (C) No. 8332, 8333 of 2014
Date : 07/08/2019
Adverse Possession -- Whether plaintiff can take plea of adverse
possession -- Once right, title or interest is acquired, it can be used as a
sword by plaintiff as well as a shield by defendant within ken of Art.65 --
Any person who has perfected title by way of adverse possession, can file
a suit for restoration of possession in case of dispossession -- Limitation
Act, 1963, Art.65
Facts of the case

The question of law that came up before a Bench of three Judges was whether
Art.65 of Limitation Act only enables a person to set up a plea of adverse
possession as a shield by a defendant and such a plea can be used as a sword
by a plaintiff to protect the possession of immovable property or to recover it in
case of dispossession. Various High Courts in India had taken divergent views.
Even in Kerala High Court, divergent views were taken. Hence, it required an
authoritative pronouncement to put a quietus to the issue.
Disposing the appeal, the Court held:
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 Art.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. Law of adverse possession does not qualify only a
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 re entry 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. 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
Art.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.
Important Para(s):48, 50, 59
Adverse Possession -- Requirements -- Examined -- Adverse possession

requires all the three classic requirements to co exist at the same time,
namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in
publicity and nec precario i.e. adverse to a competitor, in denial of title and
his knowledge
Held: Adverse possession requires all the three classic requirements to co exist
at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e.,
adequate in publicity and nec precario 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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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.
Important Para(s):57
Adverse Possession -- Tacking of -- Adverse possession is heritable and

there can be tacking of adverse possession by two or more persons as the
right is transmissible one
Held: 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 re entry except
as provided in Art.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.
Adverse Possession -- Property dedicated to public use -- Whether rights

can be obtained by adverse possession -- For properties dedicated to
public cause, it is made clear in Statute of limitation that no rights can
accrue by adverse possession -- Limitation Act, 1963
Held: When we consider the law of adverse possession as has developed vis a
vis 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
that no rights can accrue by adverse possession.
Adverse Possession -- In case of dispossession by another person by

taking law in his hand, a possessory suit can be maintained under Art.64,
even before ripening of title by way of adverse possession -- Limitation Act,
1963, Art.64
Held: In case of dispossession by another person by taking law in his hand a

possessory suit can be maintained under Art.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.
Adverse Possession -- In case a person in adverse possession has

perfected his title by adverse possession and after the extinguishment of
the title of true owner, he cannot be successfully dispossessed by a true
owner as the owner has lost his right, title and interest
Held: Suit can be filed by plaintiff on the basis of title acquired by way of adverse
possession or on the basis of possession under Art.64 and Art.65. There is no
bar under Art.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
under Art.65 of the Act. 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.
Important Para(s):46, 48
Adverse Possession -- Right to recover possession based on title is

absolute irrespective of limitation in the absence of adverse possession by
the defendant for 12 years -- Possession as trespasser is not adverse nor
long possession is synonym with adverse possession
Held: 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
Art.65 of Act. Under Art.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 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
Limitation Act, 1963 -- S.27, Art.65 -- Any property in S.27 would include
corporeal or incorporeal property -- Art.65 deals with immovable property
Held: S.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
accrued to him in presenti to obtain it, not in futuro. Any property in S.27 would
include corporeal or incorporeal property. Art.65 deals with immovable property.
Adverse Possession -- 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
Held: 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. 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.
Limitation Act, 1963 -- Art.65 -- Expression "title" occurring in the Article

would include title acquired by plaintiff by way of adverse possession --
Adverse Possession
Held: In Art.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
Property Law -- Law of Possession -- In case owner is in symbolic

possession, there is no dispossession, there can be formal, exclusive or
joint possession -- Joint possessor / co owner possession is not presumed
to be adverse -- Personal law also plays a role to construe nature of
possession -- Adverse Possession
Held: Possession is the root of title and is right like the property. As ownership is
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 S.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 / co owner possession is not presumed to be
adverse. Personal law also plays a role to construe nature of possession
Adverse possession -- History of, and evolution -- Traced
Important Para(s):2
Referred: Chatrath J. P. v. Khem Chand Chauhan and Others, 2015 KHC 3155;
Dharampal (dead) through LRs v. Punjab Wakf Board, 2018 KHC 7037;
Gurudwara Sahab v. Gram Panchayat Village Sirthala, 2013 KHC 4734; Mastu
Devi and Others v. Chet Ram and Others, 2016 KHC 3808; Mohini and Others v.
B. Thimmappa and Another, 2015 (5) KHC 48; Ninan K. C. v. State of Kerala and
Others, 2017 KHC 566; Ramdev Ram v. Dhani Ram and Others, 2016 KHC
3387; State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj, 2017 KHC
5072; Treesa Mohanan @ Lilly and Another v. O. V. Alexander and Another,
2017 (2) KHC 696; Case Law Overruled
Advocates:
Balaji Srinivasan; Pallavi Sengupta; Prem Malhotra; For Appellants

K. S. Mahadevan; Swati Bansal; Krishna Kumar R. S.; Rajesh Kumar; Sanjay
Jain; For Respondents
Huzefa Ahmadi; P. S. Patwalia; Amicus Curiae
JUDGMENT
The Judgment of the Court was delivered by Arun Mishra, J.
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 Art.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
possession or in case of dispossession by some other person? In other words,
whether Art.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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 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.
4. Before dilating upon the issue, it is necessary to refer the decision in
Gurudwara Sahab v. Gram Panchayat Village Sirthala, 2013 KHC 4734 : 2014 (1)
SCC 669 : 2013 (4) KLT SN 26 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 Three - Judge Bench decision in Sarangadeva Periya Matam & Anr. v.
Ramaswami Gondar (Dead) by Lrs., 1966 KHC 665 : AIR 1966 SC 1603 : 1966
(1) SCR 908 : 1967 (1) MLJ (SC) 154 of this 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 Three - Judge 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 plaintiff - respondent on an annual rent of Rs.70. The demised
lands are the subject - matter 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 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
plaintiff - respondent 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 predecessors - in - interest 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. 134 - B 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.
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 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) ILR 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 v. Satyaprakash and Others, 2001 KHC 1724 : 2001 (2) SCC
498 : AIR 2001 SC 700 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
decreeing the plaintiff suit based on adverse possession and observed:

"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 v. 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 v. 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 Others v. Bhagat Ram (Dead) by Lrs. and Others, 2007 KHC
3322 : 2007 (9) SCC 641 : JT 2007 (5) SC 299 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 brought about in the Act by Art.64 and Art.65 vis - a - vis to Art.142
and Art.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 Art.64 and Art.65 of
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 Art.64 and Art.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 co - owners
also is evident from the fact that the defendants - appellants themselves had
earlier filed two suits. Such suits were filed for partition. In those suits the
defendants - appellants claimed themselves to be co - owners 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 co - owner can bring about successive suits for partition
as the cause of action, therefor, would be a continuous one. But, it is equally well
- settled 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 plaintiff - respondent 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 plaintiff continued to exclusively possess the suit
land with a knowledge of the defendants - appellants.
26. Art.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 plaintiff - respondent had established that he acquired title by
ousting the defendant - appellants by declaring hostile title in himself which was
to the knowledge of his co - sharers." (emphasis supplied)
10. In Kshitish Chandra Bose v. Commissioner of Ranchi, 1981 KHC 534 : 1981
(2) SCC 103 : AIR 1981 SC 707 : 1981 (2) SCR 764 a three - Judge 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 plaintiffs 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 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 S.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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, 1968 KHC 280 : AIR 1968 SC
1165 : 1968 KLT 182 : 1968 KLJ 176 : 1968 (3) SCR 163 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 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:
"(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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 (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 and Others, 1968 KHC 575 : AIR 1968 SC 620 : 1968 (2) SCR 203 : 1968
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
Mah LJ 496 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 re - enter 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 S.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 otherwise than in due course of law, but a trespasser
who has been thrown out of possession cannot go to Court under S.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 S.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 S.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 S.9 of
the Specific Relief Act I of 1877 - Dadabhai Narsidas v. The Sub-Collector 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 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 and Another, 1969 KHC 599 : AIR 1970
SC 846 : 1969 (3) SCC 129 : 1970 (2) MLJ 29 (SC) 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 S.9 of the
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
Specific Relief Act, 1963 is in no way inconsistent with the position that as against
a wrong - doer, 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 wrong - doer 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 the English law, good title against all
but the true owner. S.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 wrong - doer 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 Court - see 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 adverse possession has perfected his title by adverse possession and
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 and Others, 1979 KHC 707 : AIR 1979 SC 1142 :
1979 (4) SCC 486 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 co - plaintiffs 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, 1970 KHC 637 :
AIR 1970 SC 1778 : 1970 (3) SCC 802 this Court considered the question of
adverse possession of Dalhousie Institute Society based on invalid grant. It was
held by this 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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)
It is apparent from the aforesaid discussion that title is acquired by adverse
possession.
17. In Mohammed Fateh Nasib v. Swarup Chand Hukum Chand and Another,
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 predecessors - in - interest
had remained in possession of the suit property for more than 12 years before
1928 to acquire a title under S.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
12 years and upwards before 1928 when he was dispossessed. that being the
relevant date under Art.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.
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 predecessors - in - interest had been in possession of the
suit property for more than 12 years prior to 1928 so as to acquire a title under
S.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 predecessors - in - interest 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 and Others v. The
Collector of the Twenty - Four Pergunnahs and Others, 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:
"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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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, 1964 KHC 549 : AIR 1964 SC 1254 : 1964
(6) SCR 780 : 1964 BLJR 581 : ILR 44 Pat 996 : 1964 (1) KLR NOC 2 a question
arose under S.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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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
purchase by Syed Aulad Ali, benami in the name of his son - in - law 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 son - in - law 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 and Another, 2010 KHC 4011 : 2010 (2) SCC 461 : 2010 (1)
SCALE 206 : AIR 2010 SC 744 : 2010 (1) SCC (Cri) 1501 : 2010 (1) SCC (Civ)
466 this Court has referred to the decision in State of Rajasthan v. Harphool
Singh, 2000 KHC 1219 : 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 KHC 4202 :
2007 (14) SCC 308 : 2007 (4) KLT SN 60 : JT 2007 (12) SC 383 : AIR 2008 SC
346 and P. T. Munichikkanna Reddy v. Revamma, 2007 KHC 3543 : 2007 (6)
SCC 59 : JT 2007 (6) SC 86 : AIR 2007 SC 1753 : 2007 (3) CHN 116 : 2007 (6)
Mah LJ 336. 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 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 Nohar - Bhadra 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 plaintiff - respondent 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
destruction of right / title of the State to immovable property and conferring upon
a third - party 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 possession. It is
now a well - settled 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)
xxxx xxxx xxxx
8. ... to assess a claim of adverse possession, two - pronged 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 paper - owner.
2. Specific positive intention to dispossess on the part of the adverse possessor
effectively shifts the title already distanced from the paper - owner, to the adverse
possessor. Right thereby accrues in favour of adverse possessor as intent to
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 KHC 3543 : 2007 (6) SCC
59 : JT 2007 (6) SC 86 : AIR 2007 SC 1753 : 2007 (3) CHN 116 : 2007 (6) Mah
LJ 336 this Court has observed as under:
2. The defendant - respondents 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 plaintiff - appellants
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:
"(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 title - holder'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 1934-36 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 05/07/1936.
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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 go - by. 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, two - pronged 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 paper - owner.
2. Specific positive intention to dispossess on the part of the adverse possessor
effectively shifts the title already distanced from the paper - owner, 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.
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. Non - use 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 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. 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 and Others, 2011 KHC 4876 : 2011
(10) SCC 404 : 2011 (4) KHC SN 7 : 2011 (11) SCALE 266 : 2011 (4) KLT SN 70
: AIR 2012 SC 559 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. 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 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." (emphasis supplied)
23. In Krishnamurthy S. Setlur (dead) by LRs. v. O.V. Narasimha Setty and
Others, 2007 KHC 3127 : 2007 (3) SCC 569 : AIR 2007 SC 1788 : JT 2007 (8)
SC 318 : 2007 (4) Mah LJ 427 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
he claims to be in exclusive, continuous and undisturbed possession. The

question arose for 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. S.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 S.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 Art.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 14/08/1981 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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 S.96
CPC, it is not a judgment under S.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 KHC 3543 : 2007 (6) SCC
59 : JT 2007 (6) SC 86 : AIR 2007 SC 1753 : 2007 (3) CHN 116 : 2007 (6) Mah
LJ 336 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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 and
once right is lost to recover the possession, the same cannot be revested by any
re - entry 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 re -
entry or by a subsequent payment or acknowledgment of title. A rent - charge 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 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,
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
260 Ill. 423, 429, 103 N.E. 175 (1913); AMES, LECTURES ON LEGAL HIST.
197; 3 ANGLO - AMERICAN 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 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." S.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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
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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
between the tenant and sub-tenant. The Kings Bench considered the effect of the
expiration of 12 years' adverse possession under S.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
sub-tenant 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. 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 KHC 3707 : 2014 (8) SCC 902, this Court has observed
thus:
"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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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
sub-tenant could only perfect his right against the tenant who inducted him as
sub-tenant 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. 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 Mpr.
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. 25Rangappa 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 in - between 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
due course of law and can sue for injunction for protecting the possession as
observed in Krishna Ram Mahale (dead) by L.Rs v. Shobha Venkat Rao, 1989
KHC 976 : 1989 (4) SCC 131 : AIR 1989 SC 2097 : 1989 MPLJ 767 State of U.P.
v. Maharaja Dharmander Prasad Singh, 1989 KHC 304 : 1989 (2) SCC 505 :
1989 (1) KLT SN 66 : AIR 1989 SC 997.
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 KHC 599 : 1969 (3) SCC 129 : AIR
1970 SC 846 : 1970 (2) MLJ 29 (SC) the Court recognized the right of the plaintiff
to such declaration of title and for an injunction. S.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., 2008 KHC
4892 : 2009 (16) SCC 517 : 2008 (4) KLT 357 : AIR 2009 SC 103 : 2008 (12)
SCALE 697 relying on T. Anjanappa v. Somalingappa 2006 KHC 1256 : 2006 (7)
SCC 570 : JT 2006 (8) SC 382, 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)
"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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
adverse possession.
39. In the light of the aforesaid discussion, when we consider the decision in
Gurdwara Sahib v. Gram Panchayat Village Sirthala & Anr., 2013 KHC 4734 :
2013 (4) KLT SN 26 : 2014 (1) SCC 669 decided by two - Judge 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. Insofar 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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
Sahib v. Gram Panchayat Village, Sirthala (supra) has been relied upon in State
of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj, 2017 KHC 5072 : 2017 (9)
SCC 579 : AIR 2017 SC 4472. 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 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 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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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)
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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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) SC 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)."
There is no independent consideration. Only the decision of the same High Court
in Bhim Singh & Ors. v. Zila Singh & Ors., 2006 KHC 4040 : 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 Art.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 Art.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 Art.65, wherein, in
column 3 it has been specifically mentioned: "when the possession of the
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
defendant becomes adverse to the plaintiff." Thus, a perusal of the aforesaid

Art.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.
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 Art.65,
the plea of adverse possession is available as a defence to a defendant.
45. Art.65 of the Act is extracted hereunder:
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
46. The conclusion reached by the High Court is based on an inferential process
because of the language used in the IIIrd Column of Art.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 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 Art.64 and Art.65. There is no
bar under Art.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 Art.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 Rajasthan v. Mahaveer Oil Industries,
1999 KHC 1166 : 1999 (4) SCC 357 : AIR 1999 SC 2302 : 1999 (115) STC 29
Director of Settlements, A.P. v. M.R. Apparao, 2003 KHC 226 : 2002 (4) SCC 638
: 2003 (1) KLT SN 48 : 2003 (1) KLJ NOC 3 : AIR 2002 SC 1598, Uptron India
Limited v. Shammi Bhan, 1998 KHC 1127 : 1998 (6) SCC 538 : 1998 SCC (L&S)
1601 : AIR 1998 SC 1681 : 1998 (1) LLJ 1165 : 1998 (2) LLN 959. 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
Art.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.
49. Under Art.64 also suit can be filed based on the possessory title. Law never
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
intends a person who has perfected title to be deprived of filing suit under Art.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 re - entry 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. Art.64 and Art.65 both are 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 Art.144 read with S.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
Art.65 of Act. Under Art.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 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 Art.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. S.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 S.27 would include corporeal or incorporeal
property. Art.65 deals with immovable property.
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 S.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 / co - owner 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 co -
exist at the same time, namely, nec - vi i.e. adequate in continuity, nec - clam i.e.,
adequate in publicity and nec - precario i.e. adverse to a competitor, in denial of
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 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 Art.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 Art.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 Art.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
----------------------------------------------------------
28/02/2023
-----------------------------------------------------------------------
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 vis - a -
vis 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 Art.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.
62. Let the matters be placed for consideration on merits before the appropriate
Bench.
----------------------------------------------------------
28/02/2023

Ravinder Kaur Grewal V Manjith Kaur

Uploaded by

Copyright:

Available Formats

Ravinder Kaur Grewal V Manjith Kaur

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ravinder Kaur Grewal V Manjith Kaur

Uploaded by

Copyright:

Available Formats

----------------------------------------------------------

CaseSearch 2022 (Full Text) Copyright © Em Tee En Publications

2019 (4) KHC 256

Ravinder Kaur Grewal and Others v. Manjit Kaur and Others

Facts of the case

defendant for the acquisition of title by way of adverse possession, it may be

Important Para(s):48, 50, 59

Adverse Possession -- Requirements -- Examined -- Adverse possession

Adverse Possession -- Tacking of -- Adverse possession is heritable and

Held: Adverse possession is heritable and there can be tacking of adverse

Adverse Possession -- Property dedicated to public use -- Whether rights

that no rights can accrue by adverse possession.

Adverse Possession -- In case of dispossession by another person by

Held: In case of dispossession by another person by taking law in his hand a

Adverse Possession -- In case a person in adverse possession has

Adverse Possession -- Right to recover possession based on title is

Held: There is the acquisition of title in favour of plaintiff though it is negative

Adverse Possession -- If a person is having a limited right, a person against

Limitation Act, 1963 -- Art.65 -- Expression "title" occurring in the Article

Property Law -- Law of Possession -- In case owner is in symbolic

also of different kinds of viz. sole ownership, contingent ownership, corporeal

Adverse possession -- History of, and evolution -- Traced

Balaji Srinivasan; Pallavi Sengupta; Prem Malhotra; For Appellants

1. The question of law involved in the present matters is quite significant.

adverse possession can be used as a shield by a defendant and not as a sword

decreeing the plaintiff suit based on adverse possession and observed:

the Act. This Court has discussed the matter thus:

possession without having recourse to a Court. No person can be allowed to

Bombay v. Municipal Corporation of the City of Bombay, (1952) SCR 43 as

dispossess is an express statement of urgency and intention in the upkeep of the

he claims to be in exclusive, continuous and undisturbed possession. The

period prescribed by the provisions of the Statute of Limitations applicable to the

defendant becomes adverse to the plaintiff." Thus, a perusal of the aforesaid

You might also like