Limitation Act, 1963 – Art.65 – Suit under, for declaration of title – If can be filed by person claiming the title by virtue of adverse possession – Two-Judge Bench Decision of Supreme Court in Gurudwara Sahab v. Gram Panchayat Village Sirthala referring to the decision of the Punjab and Haryana High Court in one Gurudwara Sahib Sannauli case, opined that no declaration of title can be sought by plaintiff on the basis of adverse possession inasmuch as adverse possession can be used as shield by defendant and not as sword by plaintiff – Held: Supreme Court in Gurudwara Sahab case while deciding the question simply observed that there is “no quarrel” with the proposition to the extent that suit cannot be based by the plaintiff on adverse possession – Thus, the point whether the plaintiff can take the plea of adverse possession was not contested and none of the decisions of larger and coordinate benches holding the contrary views were placed before the two-Judge Bench– Further, in the case of Gurdwara Sahib Sannauli also, there is no independent consideration –Punjab & Haryana High Court proceeded on the basis that as per Art.65, the plea of adverse possession is available as defence to a defendant – Conclusion is based on an inferential process because of the language used in the IIIrd Column of Article
65 – 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 – Inferential process of interpretation employed by the High Court is not permissible– There is no bar u/Art.65 or any of the provisions of the 1963 Act as against the plaintiff who has perfected title by virtue of adverse possession to sue for eviction of a person or to protect his possession – Decisions of Supreme Court in Gurudwara Sahab, in Mandir Shri Lakshmi Siddh Maharaj relying on Gurudwara Sahab and in Punjab Wakf Board case cannot be said to be laying down the law correctly and thus are overruled – Possession – Adverse Possession – Specific Relief Act, 1963 – s.6.
Possession – Adverse Possession – Effect of adverse possession as against limited owner – Discussed. Possession – Adverse Possession – Concept of – Held: Statute does not define adverse possession – It is a common law concept, the period of which has been prescribed statutorily as 12 years – Law of limitation does not define adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession – Under Art.64 also suit can be filed based on the possessory title – Limitation Act, 1963 – s.27 and Art.64. Possession – Adverse Possession – Title acquired by – Nature of – Discussed.
Limitation Act, 1963 – Operation of – Held: 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.
Words & Expressions – “title”, “tacking”– Meaning of – Discussed – Limitation Act, 1963 – Art.65.
Words & Expressions – “ownership”, “possession” – Kinds of – Discussed.
Possession – Adverse Possession – Proof of – Requirements for – 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.
Possession – Adverse Possession – When not – Held: 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 – Maxims – Animus possidendi.
Directing the matters to be placed for consideration on merits before the appropriate Bench, the Court HELD: 1.1 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. 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. 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. 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. 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. [Paras 25-28] [115-C-D-G; 116-C; 117-C-D]
1.2 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. 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. The decision in Gurdwara Sahib v. Gram Panchayat Village Sirthala & Anr. (2014) 1 SCC 669 decided by two-Judge Bench 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. Punjab & Haryana High Court in Gurdwara Sahib Sannauli, which has been referred by this Court in Gurudwara Sahib v. Gram Panchayat, Sirthala, there is no independent consideration. Only the decision of the same High Court in Bhim Singh & Ors. v. Zila Singh & Ors. AIR 2006 P&H
195 has been relied upon to hold that no declaration can be sought by the plaintiff based on adverse possession. [Paras 31, 32, 39 and 43] [119-F-H; 120-A; 122-F-H; 126-A-E]
1.3 The conclusion reached by the High Court is based on an inferential process because of the language used in the IIIrd Column of Article 65. The expression is used, the limitation of
12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column No.3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High 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 and observations made in Halsbury Laws based on various decisions indicate that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles
64 and 65. There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article
65 of the Act. Thus, the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) and of the Punjab & Haryana High Court cannot be said to be laying down the correct law. In Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) proposition was not disputed. A decision based upon concession cannot be treated as precedent. 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. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession. 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. [Paras 46-50] [129-A-H; 130-A-F]
1.4 In India, the law respect possession, persons are not permitted to take law in their hands and dispossess a person in possession by force. The suit can be filed only based on the possessory title for appropriate relief under the Specific Relief Act by a person in possession. Articles 64 and 65 both are attracted in such cases. 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. 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. 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. [Paras 51, 53-55] [130-G-H; 131-D-H; 132-A]
1.5 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/co-owner possession is not presumed to be adverse. Personal law also plays a role to construe nature of possession. 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 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. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. 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. 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. 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. When the law of adverse possession is considered as has developed vis-à-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, 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. [Paras 56-60] [132-B-H; 133-A-H]
1.6 Decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj and Dharampal (dead) through LRs v. Punjab Wakf Board cannot be said to be laying down the law correctly, thus they are hereby overruled. 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. The matters be placed for consideration on merits before the appropriate Bench. [Paras 61, 62] [134-A-C] Gurudwara Sahab v. Gram Panchayat Village Sirthala (2014) 1 SCC 669; State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj (2017) 9 SCC 579 : [2017] 14 SCR 257; Dharampal (Dead) through LRs v. Punjab Wakf Board (2018) 11 SCC 449 : [2017] 8 SCR 316 – overruled.
Sarangadeva Periya Matam & Anr. v. Ramaswami
Gondar (Dead) by Lrs. AIR 1966 SC 1603 ; Balkrishan vs. Satyaprakash & Ors. (2000) 2 SCC 498 : [2001] 1 SCR 480; Des Raj and Ors. v. Bhagat Ram (Dead) by Lrs. and Ors. (2007) 9 SCC 641 : [2007] 2 SCR 892 ; Kshitish Chandra Bose v. Commissioner of Ranchi (1981) 2 SCC 103 : [1981] 2 SCR 764 ; Nair Service Society Ltd. v. K.C. Alexander AIR 1968 SC 1165 : [1968] SCR 163 ; Lallu Yashwant Singh (dead) by his legal representative v. Rao Jagdish Singh & Ors. AIR 1968 SC 620 : [1968] SCR 203 ; Somnath Berman v. Dr. S.P. Raju & Anr. AIR 1970 SC 846 : [1970] 2 SCR
869 ; Padminibai v. Tangavva & Ors. AIR 1979 SC 1142 ; State of West Bengal v. The Dalhousie Institute Society AIR 1970 SC 1778 ; S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254 : [1964] SCR 780; Mandal Revenue Officer v. Goundla Venkaiah & Anr. (2010) 2 SCC 461 ; State of Rajasthan v. Harphool Singh (2000)
5 SCC 652 : [2000] 3 SCR 958 ; State of Haryana v. Mukesh Kumar & Ors. (2011) 10 SCC 404 : [2011] 14 SCR 211; P.T. Munichikkanna Reddy v. Revamma
(2007) 6 SCC 59 : [ 2007] 5 SCR 491 ; Krishnamurthy S. Setlur (dead) by LRs. v. O.V. Narasimha Setty & Ors. (2007) 3 SCC 569 : [2007] 2 SCR 1097 ; Ram Daan (Dead) through LRs. v. Urban Improvement Trust (2014)
8 SCC 902 : [2014] 8 SCR 360 ; Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors. (2009) 16 SCC 517 : [2008] 13 SCR 818 – relied on.
Musumut Chundrabullee Debia v. Luchea Debia
Chowdrain 1865 SCC Online PC 7 ; Midnapur
Zamindary Company Ltd. V. Naresh Narayan Roy AIR 1924 PC 144 ; Yar Mohammad v. Laxmi Das AIR 1959 All. 1 ; Mohammed Fateh Nasib v. Swarup Chand Hukum Chand & Anr. AIR 1948 PC 76 ; Gunga Govind Mundul & Ors. v. The Collector of the Twenty-Four Pergunnahs & Ors. (Decision of Privy Council) 11 MIA
212 ; Lala Hem Chand v. Lala Pearey Lal & Ors. AIR 1942 PC 64 ; Annakili v. A. Vedanayagam (2007) 14 SCC 308 : [2007] 11 SCR 517 ; Nepen Bala Debi v. Siti Kanta Banerjee (1910) 8 Ind Cas 41 (DB) (Cal) ; Ngasepam Ibotombi Singh v. Wahengbam Ibohal Singh & Anr. AIR 1960 Manipur 16 ; Aboobucker s/o Shakhi Mahomed Laloo v. Sahibkhatoon AIR 1949 Sindh 12 ; Bata Krista Pramanick v. Shebaits of Thakur Jogendra Nath Maity & Ors. AIR 1919 Cal. 339 ; Ram Chandra Sil & Ors. v. Ramanmani Dasi & Ors. AIR 1917 Cal.
469 ; Shiromani Gurdwara Parbhandhak Committee, Khosakotla & Anr. v. Prem Das & Ors. AIR 1933 Lah
25 ; Rangappa Nayakar v. Rangaswami Nayakar AIR 1925 Mad. 1005 ; Shaikh Alimuddin v. Shaikh Salim 1928 IC 81 (PC) ; Pannalal Bhagirath Marwadi v. Bhaiyalal Bindraban Pardeshi Teli AIR 1937 Nagpur
281 ; Krishna Ram Mahale (dead) by L.Rs v. Shobha Venkat Rao (1989) 4 SCC 131 ; State of U.P. v. Maharaja Dharmander Prasad Singh (1989) 2 SCC 505 : [1989]
1 SCR 176 ; Radhamoni Debi v. The Collector of Khulna & Ors. (1900) ILR 27 Cal. 943 ; Gurdwara Sahib Sannauli v. State of Punjab (2009) 154 PLR 756 ; T. Anjanappa v. Somalingappa (2006) 7 SCC 570 : [2006] 5 Suppl. SCR 200 ; Bhim Singh & Ors. v. Zila Singh & Ors. AIR 2006 P&H 195 ; State of Rajasthan v. Mahaveer Oil Industries (1999) 4 SCC 357 : [1999]
2 SCR 798 ; Director of Settlements, A.P. v. M.R. Apparao (2002) 4 SCC 638 : [2002] 2) SCR 661; Uptron India Limited v. Shammi Bhan (1998) 6 SCC
538 : [1998] 1 SCR 719 – referred to.
Fairweather v. St. Marylebone Property Co. Ltd. (1962)
2 AER 288 (HL) ; Taylor v. Twinberrow 1930 All ER Rep 342 (DC) ; Toltec Ranch Co. v. Cook, 191 U.S. 532, 542 (1903) ; Field v. Peoples, 180 Ill. 376, 383,
54 N.E. 304 (1899) ; Bellefontaine Co. v. Niedringhaus
181 Ill. 426, 55 N.E. 184 (1899) ; Cf. La Salle v. Sanitary District, 260 Ill. 423, 429, 103 N.E. 175 (1913) ; 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); Tichborne v. Weir, (1892) 67 LT 735 ; Perry v. Clissold (1907) AC 73 – referred to.
Halsbury’s Laws of England, 4th Edn., Vol. 28, para 777; Harvard Law Review on “Title by Adverse
Possession” by Henry W. Ballantine; Ames, Lectures On Legal Hist. 197; 3 Anglo-American Essays, 567 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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