Ravinder Kaur Grewal vs Manjit Kaur on 7 August, 2019
1. The question of law involved in the present matters is quite significant. Whether a person
claiming the title by virtue of adverse possession can maintain a suit under Article 65 of
Limitation Act, 1963 (for short, “the Act”) for declaration of title and for a permanent injunction
seeking the protection of his possession thereby restraining the defendant from interfering in the
possession or for restoration of Signature Not Verified Digitally signed by JAYANT KUMAR
ARORA Date: 2019.08.07 17:08:22 IST possession in case of illegal dispossession by a
defendant whose title has Reason:
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 Article 65 of the Act only enables
a person to set up a plea of adverse possession as a shield as a defendant and such a plea
cannot be used as a sword by a plaintiff to protect the possession of immovable property or to
recover it in case of dispossession. Whether he is remediless in such a case? In case a person
has perfected his title based on adverse possession and property is sold by the owner after the
extinguishment of his title, what is the remedy of a person to avoid sale and interference in
possession or for its restoration in case of dispossession?
53. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on
extinguishment of the right of an owner of the property. The right ripened by prescription by his
adverse possession is absolute and on dispossession, he can sue based on ‘title' as envisaged
in the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the
title for recovery of possession within 12 years of the start of adverse possession, if any, set up
by the defendant. Otherwise right to recover possession based on the title is absolute
irrespective of limitation in the absence of adverse possession by the defendant for 12 years.
The possession as trespasser is not adverse nor long possession is synonym with adverse
possession.
54. In Article 65 in the opening part a suit “for possession of immovable property or any interest
therein based on title” has been used. Expression “title” would include the title acquired by the
plaintiff by way of adverse possession. The title is perfected by adverse possession has been
held in a catena of decisions.
55. We are not inclined to accept the submission that there is no conferral of right by adverse
possession. Section 27 of Limitation Act, 1963 provides for extinguishment of right on the lapse
of limitation fixed to institute a suit for possession of any property, the right to such property shall
stand extinguished. The concept of adverse possession as evolved goes beyond it on
completion of period and extinguishment of right confers the same right on the possessor, which
has been extinguished and not more than that. For a person to sue for possession would
indicate that right has accrued to him in presenti to obtain it, not in futuro. Any property in
Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable
property.
56. Possession is the root of title and is right like the property. As ownership is also of different
kinds of viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable
ownership. Limited ownership or limited right to property may be enjoyed by a holder. What can
be prescribable against is limited to the rights of the holder. Possession confers enforceable
right under Section 6 of the Specific Relief Act. It has to be looked into what kind of possession
is enjoyed viz. de facto i.e., actual, ‘de jure possession’, constructive possession, concurrent
possession over a small portion of the property. In case the owner is in symbolic possession,
there is no dispossession, there can be formal, exclusive or joint possession. The joint
possessor/coowner possession is not presumed to be adverse. Personal law also plays a role to
construe nature of possession.
57. The adverse possession requires all the three classic requirements to coexist at the same
time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and
necprecario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious
and peaceful so that if the owner does not take care to know notorious facts, knowledge is
attributed to him on the basis that but for due diligence he would have known it. Adverse
possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile
colour of title is required. Trespasser’s long possession is not synonym with adverse
possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user
does not constitute adverse possession. The owner can take possession from a trespasser at
any point in time. Possessor looks after the property, protects it and in case of agricultural
property by and the large concept is that actual tiller should own the land who works by dint of
his hard labour and makes the land cultivable. The legislature in various States confers rights
based on possession.
58. Adverse possession is heritable and there can be tacking of adverse possession by two or
more persons as the right is transmissible one. In our opinion, it confers a perfected right which
cannot be defeated on reentry except as provided in Article 65 itself. Tacking is based on the
fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or
assignee, etc. so as to constitute continuity of possession, that person must be claiming through
whom it is sought to be tacked, and would depend on the identity of the same property under
the same right. Two distinct trespassers cannot tack their possession to constitute conferral of
right by adverse possession for the prescribed period.
59. We hold that a person in possession cannot be ousted by another person except by due
procedure of law and once 12 years' period of adverse possession is over, even owner's right to
eject him is lost and the possessory owner acquires right, title and interest possessed by the
outgoing person/owner as the case may be against whom he has prescribed. In our opinion,
consequence is that once the right, title or interest is acquired it can be used as a sword by the
plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person
who has perfected title by way of adverse possession, can file a suit for restoration of
possession in case of dispossession. In case of dispossession by another person by taking law
in his hand a possessory suit can be maintained under Article 64, even before the ripening of
title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a
person cannot be remediless. In case he has been dispossessed by the owner after having lost
the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse
possession. Similarly, any other person who might have dispossessed the plaintiff having
perfected title by way of adverse possession can also be evicted until and unless such other
person has perfected title against such a plaintiff by adverse possession. Similarly, under other
Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by
adverse possession, can sue and maintain a suit.
60. When we consider the law of adverse possession as has developed visàvis to property
dedicated to public use, courts have been loath to confer the right by adverse possession.
There are instances when such properties are encroached upon and then a plea of adverse
possession is raised. In Such cases, on the land reserved for public utility, it is desirable that
rights should not accrue. The law of adverse possession may cause harsh consequences,
hence, we are constrained to observe that it would be advisable that concerning such properties
dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by
adverse possession.
61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala
(supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj
(supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be
laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of
title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and
there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement
of any rights of a plaintiff.
