CaseNote:
Property - Adverse possession - Article 65 and Section 27 of the Limitation Act, 1963 - Issue in present case regarding plea of acquisition of title by adverse possession by Plaintiff under Article 65 of the Limitation Act - Whether Article 65 of the Act only enabled a person to set up a plea of adverse possession as a shield as a Defendant and such a plea could not be used as a sword by a Plaintiff to protect possession of immovable property or to recover it in case of dispossession - Whether he was remediless in such a case - In case a person had perfected his title based on adverse possession and property was sold by the owner after extinguishment of his title, what was remedy of a person to avoid sale and interference in possession or for its restoration in case of dispossession.
Facts:
The question of law involved in present matters is significant. Issue is relating to 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.
Held, while placing matters for consideration on merits before the appropriate Bench
1. 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. [48]
2. 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. [49]
3. 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. [50]
4. 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. [53]
5. 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. [54]
6. 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 future. Any property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property. [55]
7. 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. [56]
8. 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. [57]
9. 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 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. [58]
10. 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. [59]
11. When law of adverse possession as has developed vis-a-vis to property dedicated to public use is considered, 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. [60]
12. Resultantly, 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. [61]
Appellants: Ravinder Kaur Grewal and Ors.
Vs.
Respondent: Manjit Kaur and Ors.
MANU/SC/1053/2019
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