RAVINDER KAUR GREWAL & ORS versus MANJIT KAUR & ORS.

[2019] 11 S.C.R. 1

[2019] 11 S.C.R.

ARAVINDER KAUR GREWAL & ORS.

MANJIT KAUR & ORS.

(Civil Appeal No. 7764 of 2014)

AUGUST 07, 2019

[ARUN MISHRA, S. ABDUL NAZEERAND M. R. SHAH, JJ.]

Limitation Act, 1963 – Art.65 – Suit under, for declaration oftitle – If can be filed by person claiming the title by virtue of adverseCpossession – Two-Judge Bench Decision of Supreme Court inGurudwara Sahab v. Gram Panchayat Village Sirthala referring to thedecision of the Punjab and Haryana High Court in one GurudwaraSahib Sannauli case, opined that no declaration of title can be soughtby plaintiff on the basis of adverse possession inasmuch as adverseDpossession can be used as shield by defendant and not as sword byplaintiff – Held: Supreme Court in Gurudwara Sahab case whiledeciding the question simply observed that there is “no quarrel”with the proposition to the extent that suit cannot be based by theplaintiff on adverse possession – Thus, the point whether the plaintiffEcan take the plea of adverse possession was not contested and noneof the decisions of larger and coordinate benches holding thecontrary views were placed before the two-Judge Bench– Further,in the case of Gurdwara Sahib Sannauli also, there is no independentconsideration –Punjab & Haryana High Court proceeded on thebasis that as per Art.65, the plea of adverse possession is availableFas defence to defendant – Conclusion is based on an inferentialprocess because of the language used in the III[rd] Column of Article65 – Column No.3 of Schedule of the Act nowhere suggests that suitcannot be filed by the plaintiff for possession of immovable propertyor any interest therein based on title acquired by way of adverseGpossession – There is absolutely no bar for the perfection of title byway of adverse possession whether person is suing as the plaintiffor being sued as defendant – Inferential process of interpretationemployed 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 plaintiffwho has perfected title by virtue of adverse possession to sue forH

eviction of person or to protect his possession – Decisions ofSupreme Court in Gurudwara Sahab, in Mandir Shri Lakshmi SiddhMaharaj relying on Gurudwara Sahab and in Punjab Wakf Boardcase cannot be said to be laying down the law correctly and thusare overruled – Possession – Adverse Possession – Specific ReliefAct, 1963 – s.6.

Possession – Adverse Possession – Effect of adversepossession as against limited owner – Discussed.

Possession – Adverse Possession – Concept of – Held: Statutedoes not define adverse possession – It is common law concept,the period of which has been prescribed statutorily as 12 years –Law of limitation does not define adverse possession nor anywherecontains provision that the plaintiff cannot sue based on adversepossession – Under Art.64 also suit can be filed based on thepossessory title – Limitation Act, 1963 – s.27 and Art.64.

Possession – Adverse Possession – Title acquired by – Natureof – Discussed.

Limitation Act, 1963 – Operation of – Held: Operation of thestatute of limitation in giving title is merely negative – It extinguishesthe right and title of the dispossessed owner and leaves the occupantwith title gained by the fact of possession and resting on theinfirmity of the right of others to eject him.

Words & Expressions – “title”, “tacking”– Meaning of –Discussed – Limitation Act, 1963 – Art.65.

Words & Expressions – “ownership”, “possession” – Kindsof – Discussed.

Possession – Adverse Possession – Proof of – Requirementsfor – Held: Adverse possession requires all the three classicrequirements to co-exist at the same time, namely, nec-vi i.e. adequatein continuity, nec-clam i.e., adequate in publicity and nec-precarioi.e. adverse to 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.

ADirecting the matters to be placed for consideration onmerits before the appropriate Bench, the Court

HELD: 1.1 In Halsbury’s Laws of England, 4[th] Edn., Vol.28, para 777 positions of person in adverse possession has beendiscussed and it has been observed on the basis of variousBdecisions that person in possession has transmissible interestin the property and after expiration of the statutory period, itripens as good right to possession. In Halsbury’s Laws ofEngland, extinction of title by the effect of the expiration of theperiod of limitation has also been discussed in Para 783 and onceright is lost to recover the possession, the same cannot be re-Cvested by any re-entry or by subsequent acknowledgment oftitle. Nature of title acquired by adverse possession has also beendiscussed in the Halsbury’s Laws of England in Para 785. It hasbeen observed that adverse possession leaves the occupant witha title gained by the fact of possession and resting on the infirmityDof the rights of others to eject him. Same is “good title”, both atlaw and in equity. The adverse possessor does not derive histitle from the former owner, but from new source of title, hispossession. The “investitive fact” is the disseisin and exerciseof possession. It has also been observed that titles to propertyEshould not remain uncertain and in dispute, but that continuedde facto exercise and assertion of right should be conclusiveevidence of the de jure existence of the right. [Paras 25-28][115-C-D-G; 116-C; 117-C-D]

1.2 If person is having limited right, person againstFhim can prescribe only to acquire that limited right which isextinguished and not beyond that. There is series of decisionslaying down this proposition of law as to the effect of adversepossession as against limited owner if extinguishing title of thelimited owner not that of reversion or having some other title.The operation of the statute of limitation in giving title is merelyGnegative; it extinguishes the right and title of the dispossessedowner and leaves the occupant with title gained by the fact ofpossession and resting on the infirmity of the right of others toeject him. The decision in Gurdwara Sahib v. Gram PanchayatVillage Sirthala & Anr. (2014) 1 SCC 669 decided by two-JudgeHBench referred to the Punjab & Haryana High Court decision on

Gurdwara Sahib Sannauli v. State of Punjab (2009) 154 PLR 756and observed that there cannot be ‘any quarrel’ to the extentthat the judgments of courts below are correct and without anyblemish. Even if the plaintiff is found to be in adverse possession,it cannot seek declaration to the effect that such adversepossession has matured into ownership. The discussion made isconfined to para 8 only. Punjab & Haryana High Court in GurdwaraSahib Sannauli, which has been referred by this Court inGurudwara Sahib v. Gram Panchayat, Sirthala, there is noindependent consideration. Only the decision of the same HighCourt in Bhim Singh & Ors. v. Zila Singh & Ors. AIR 2006 P&H195 has been relied upon to hold that no declaration can be soughtby the plaintiff based on adverse possession. [Paras 31, 32, 39and 43] [119-F-H; 120-A; 122-F-H; 126-A-E]1.3 The conclusion reached by the High Court is based onan inferential process because of the language used in the III[rd]Column of Article 65. The expression is used, the limitation of12 years runs from the date when the possession of the defendantbecomes adverse to the plaintiff. Column No.3 of Schedule of theAct nowhere suggests that suit cannot be filed by the plaintiff forpossession of immovable property or any interest therein basedon title acquired by way of adverse possession. There isabsolutely no bar for the perfection of title by way of adversepossession whether person is suing as the plaintiff or beingsued as defendant. The inferential process of interpretationemployed by the High Court is not at all permissible. It does notfollow from the language used in the statute. The large numberof decisions of this Court and various other decisions of PrivyCouncil, High Courts and of English courts and observations madein Halsbury Laws based on various decisions indicate that suitcan be filed by plaintiff on the basis of title acquired by way ofadverse possession or on the basis of possession under Articles64 and 65. There is no bar under Article 65 or any of the provisionsof Limitation Act, 1963 as against plaintiff who has perfectedhis title by virtue of adverse possession to sue to evict personor to protect his possession and plethora of decisions are to theeffect that by virtue of extinguishment of title of the owner, theperson in possession acquires absolute title and if actual ownerdispossesses another person after extinguishment of his title,

FGH

Ahe can be evicted by such person by filing of suit under Article65 of the Act. Thus, the decision of Gurudwara Sahib v. GramPanchayat, Sirthala (supra) and of the Punjab & Haryana HighCourt cannot be said to be laying down the correct law. InGurudwara Sahib v. Gram Panchayat, Sirthala (supra) propositionwas not disputed. decision based upon concession cannot beBtreated as precedent. Though, it appears that there was someexpression of opinion since the Court observed there cannot beany quarrel that plea of adverse possession cannot be taken by aplaintiff. The fact remains that the proposition was not disputedand no argument to the contrary had been raised, as such thereCwas no decision on the aforesaid aspect only an observation wasmade as to proposition of law, which is palpably incorrect. Thestatute does not define adverse possession, it is common lawconcept, the period of which has been prescribed statutorily underthe law of limitation Article 65 as 12 years. Law of limitation doesnot define the concept of adverse possession nor anywhereDcontains provision that the plaintiff cannot sue based on adversepossession. It only deals with limitation to sue and extinguishmentof rights. There may be case where person who has perfectedhis title by virtue of adverse possession is sought to be oustedor has been dispossessed by forceful entry by the owner or byEsome other person, his right to obtain possession can be resistedonly when the person who is seeking to protect his possession,is able to show that he has also perfected his title by adversepossession for requisite period against such plaintiff. UnderArticle 64 also suit can be filed based on the possessory title.Law never intends person who has perfected title to be deprivedFof filing suit under Article 65 to recover possession and to renderhim remediless. In case of infringement of any other rightattracting any other Article such as in case the land is sold awayby the owner after the extinguishment of his title, the suit can befiled by person who has perfected his title by adverse possessionGto question alienation and attempt of dispossession. Law ofadverse possession does not qualify only defendant for theacquisition of title by way of adverse possession, it may beperfected by person who is filing suit. It only restricts rightof the owner to recover possession before the period of limitationfixed for the extinction of his rights expires. Once right isHextinguished another person acquires prescriptive right whichcannot be defeated by re-entry by the owner or subsequentacknowledgment of his rights. In such case suit can be filed bya 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 notpermitted to take law in their hands and dispossess person inpossession by force. The suit can be filed only based on thepossessory title for appropriate relief under the Specific ReliefAct by person in possession. Articles 64 and 65 both are attractedin such cases. There is the acquisition of title in favour of plaintiffthough it is negative conferral of right on extinguishment of theright of an owner of the property. The right ripened by prescriptionby his adverse possession is absolute and on dispossession, hecan sue based on ‘title’ as envisaged in the opening part underArticle 65 of Act. Under Article 65, the suit can be filed based onthe title for recovery of possession within 12 years of the start ofadverse possession, if any, set up by the defendant. Otherwiseright to recover possession based on the title is absoluteirrespective of limitation in the absence of adverse possessionby the defendant for 12 years. The possession as trespasser isnot adverse nor long possession is synonym with adversepossession. In Article 65 in the opening part suit “forpossession of immovable property or any interest therein basedon title” has been used. Expression “title” would include thetitle acquired by the plaintiff by way of adverse possession. Thetitle is perfected by adverse possession. Section 27 of LimitationAct, 1963 provides for extinguishment of right on the lapse oflimitation fixed to institute suit for possession of any property,the right to such property shall stand extinguished. The conceptof adverse possession as evolved goes beyond it on completionof period and extinguishment of right confers the same right onthe possessor, which has been extinguished and not more thanthat. For person to sue for possession would indicate that righthas accrued to him in presenti to obtain it, not in futuro. Anyproperty in Section 27 would include corporeal or incorporealproperty. Article 65 deals with immovable property. [Paras 51,53-55] [130-G-H; 131-D-H; 132-A]

DEF

A1.5 Possession is the root of title and is right like theproperty. As ownership is also of different kinds of viz. soleownership, contingent ownership, corporeal ownership, and legalequitable ownership. Limited ownership or limited right toproperty may be enjoyed by holder. What can be prescribableagainst is limited to the rights of the holder. Possession confersBenforceable right under Section 6 of the Specific Relief Act. Ithas to be looked into what kind of possession is enjoyed viz. defacto i.e., actual, ‘de jure possession’, constructive possession,concurrent possession over small portion of the property. Incase the owner is in symbolic possession, there is noCdispossession, there can be formal, exclusive or joint possession.The joint possessor/co-owner possession is not presumed to beadverse. Personal law also plays role to construe nature ofpossession. The adverse possession requires all the three classicrequirements to co-exist at the same time, namely, nec-vi i.e.Dadequate in continuity, nec-clam i.e., adequate in publicity andnec-precario i.e. adverse to competitor, in denial of title and hisknowledge. Visible, notorious and peaceful so that if the ownerdoes not take care to know notorious facts, knowledge is attributedto him on the basis that but for due diligence he would have knownit. Adverse possession cannot be decreed on title which is notEpleaded. Animus possidendi under hostile colour of title is required.Trespasser’s long possession is not synonym with adversepossession. Trespasser’s possession is construed to be on behalfof the owner, the casual user does not constitute adversepossession. The owner can take possession from trespasser atFany point in time. Possessor looks after the property, protects itand in case of agricultural property by and the large concept isthat actual tiller should own the land who works by dint of hishard labour and makes the land cultivable. The legislature invarious States confers rights based on possession. Adversepossession is heritable and there can be tacking of adverseGpossession by two or more persons as the right is transmissibleone. It confers perfected right which cannot be defeated onreentry except as provided in Article 65 itself. Tacking is basedon the fulfillment of certain conditions, tacking maybe bypossession by the purchaser, legatee or assignee, etc. so as toHconstitute continuity of possession, that person must be claiming

through whom it is sought to be tacked, and would depend on theidentity of the same property under the same right. Two distincttrespassers cannot tack their possession to constitute conferralof right by adverse possession for the prescribed period. personin possession cannot be ousted by another person except by dueprocedure of law and once 12 years’ period of adverse possessionis over, even owner’s right to eject him is lost and the possessoryowner acquires right, title and interest possessed by the outgoingperson/owner as the case may be against whom he has prescribed.Once the right, title or interest is acquired it can be used as asword by the plaintiff as well as shield by the defendant withinken of Article 65 of the Act and any person who has perfectedtitle by way of adverse possession, can file suit for restorationof possession in case of dispossession. In case of dispossessionby another person by taking law in his hand, possessory suitcan be maintained under Article 64, even before the ripening oftitle by way of adverse possession. By perfection of title onextinguishment of the owner’s title, person cannot beremediless. In case he has been dispossessed by the owner afterhaving lost the right by adverse possession, he can be evicted bythe plaintiff by taking the plea of adverse possession. Similarly,any other person who might have dispossessed the plaintiff havingperfected title by way of adverse possession can also be evicteduntil and unless such other person has perfected title againstsuch plaintiff by adverse possession. Similarly, under otherArticles also in case of infringement of any of his rights, plaintiffwho has perfected the title by adverse possession, can sue andmaintain suit. When the law of adverse possession is consideredas 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 uponand then plea of adverse possession is raised. In such cases,on the land reserved for public utility, it is desirable that rightsshould not accrue. The law of adverse possession may causeharsh consequences, hence, it would be advisable that concerningsuch properties dedicated to public cause, it is made clear in thestatute of limitation that no rights can accrue by adversepossession. [Paras 56-60] [132-B-H; 133-A-H]

A1.6 Decisions of Gurudwara Sahab v. Gram Panchayat VillageSirthala and decision relying on it in State of Uttarakhand v. MandirShri Lakshmi Siddh Maharaj and Dharampal (dead) through LRsv. Punjab Wakf Board cannot be said to be laying down the lawcorrectly, thus they are hereby overruled. Plea of acquisition ofBtitle by adverse possession can be taken by plaintiff under Article65 of the Limitation Act and there is no bar under the LimitationAct, 1963 to sue on aforesaid basis in case of infringement of anyrights of plaintiff. The matters be placed for consideration onmerits 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 SriLaxman Sidh Maharaj (2017) 9 SCC 579 : [2017] 14SCR 257; Dharampal (Dead) through LRs v. PunjabWakf Board (2018) 11 SCC 449 : [2017] 8 SCR 316 –overruled.

Sarangadeva Periya Matam & Anr. v. RamaswamiGondar (Dead) by Lrs. AIR 1966 SC 1603 ; Balkrishanvs. Satyaprakash & Ors. (2000) 2 SCC 498 : [2001] 1SCR 480; Des Raj and Ors. v. Bhagat Ram (Dead) byLrs. 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 ServiceSociety Ltd. v. K.C. Alexander AIR 1968 SC 1165 :[1968] SCR 163 ; Lallu Yashwant Singh (dead) by hislegal representative v. Rao Jagdish Singh & Ors. AIR1968 SC 620 : [1968] SCR 203 ; Somnath Berman v.Dr. S.P. Raju & Anr. AIR 1970 SC 846 : [1970] 2 SCR869 ; Padminibai v. Tangavva & Ors. AIR 1979 SC1142 ; State of West Bengal v. The Dalhousie InstituteSociety AIR 1970 SC 1778 ; S.M. Karim v. Mst. BibiSakina AIR 1964 SC 1254 : [1964] SCR 780; MandalRevenue Officer v. Goundla Venkaiah & Anr. (2010) 2SCC 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] 14SCR 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) 16SCC 517 : [2008] 13 SCR 818 – relied on.

Musumut Chundrabullee Debia v. Luchea DebiaChowdrain 1865 SCC Online PC 7 ; MidnapurZamindary Company Ltd. V. Naresh Narayan Roy AIR1924 PC 144 ; Yar Mohammad v. Laxmi Das AIR 1959All. 1 ; Mohammed Fateh Nasib v. Swarup ChandHukum Chand & Anr. AIR 1948 PC 76 ; Gunga GovindMundul & Ors. v. The Collector of the Twenty-FourPergunnahs & Ors. (Decision of Privy Council) 11 MIA212 ; Lala Hem Chand v. Lala Pearey Lal & Ors. AIR1942 PC 64 ; Annakili v. A. Vedanayagam (2007) 14SCC 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 ShakhiMahomed Laloo v. Sahibkhatoon AIR 1949 Sindh 12 ;Bata Krista Pramanick v. Shebaits of Thakur JogendraNath Maity & Ors. AIR 1919 Cal. 339 ; Ram ChandraSil & Ors. v. Ramanmani Dasi & Ors. AIR 1917 Cal.469 ; Shiromani Gurdwara Parbhandhak Committee,Khosakotla & Anr. v. Prem Das & Ors. AIR 1933 Lah25 ; Rangappa Nayakar v. Rangaswami Nayakar AIR1925 Mad. 1005 ; Shaikh Alimuddin v. Shaikh Salim1928 IC 81 (PC) ; Pannalal Bhagirath Marwadi v.Bhaiyalal Bindraban Pardeshi Teli AIR 1937 Nagpur281 ; Krishna Ram Mahale (dead) by L.Rs v. ShobhaVenkat Rao (1989) 4 SCC 131 ; State of U.P. v. MaharajaDharmander Prasad Singh (1989) 2 SCC 505 : [1989]1 SCR 176 ; Radhamoni Debi v. The Collector ofKhulna & Ors. (1900) ILR 27 Cal. 943 ; GurdwaraSahib 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. ZilaSingh & Ors. AIR 2006 P&H 195 ; State of Rajasthan

[2019] 11 S.C.R.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7764of 2014.

From the Judgment and Order dated 27.11.2007 of the High CourtCof Punjab and Haryana at Chandigarh in R.S.A. No. 946 of 2004.

With

S.L.P.(C) Nos. 8332-8333/2014.

P. S. Patwalia, Huzefa Ahmadi, Sr. Advs. ACs.

DPrem Malhotra, Adv. for the Appellants.

Parveen Kumar Aggarwal, Sanjay Jain, Advs. for the Respondents.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

E1. The question of law involved in the present matters is quitesignificant. Whether person claiming the title by virtue of adversepossession can maintain suit under Article 65 of Limitation Act, 1963(for short, “the Act”) for declaration of title and for permanent injunctionseeking the protection of his possession thereby restraining the defendantfrom interfering in the possession or for restoration of possession inFcase of illegal dispossession by defendant whose title has beenextinguished by virtue of the plaintiff remaining in the adverse possessionor in case of dispossession by some other person? In other words, whetherArticle 65 of the Act only enables person to set up plea of adversepossession as shield as defendant and such plea cannot be used asGa sword by plaintiff to protect the possession of immovable property orto recover it in case of dispossession. Whether he is remediless in sucha case? In case person has perfected his title based on adversepossession and property is sold by the owner after the extinguishment ofhis title, what is the remedy of person to avoid sale and interference inpossession or for its restoration in case of dispossession?H2. Historically, adverse possession is pretty old concept of law.It is useful but often criticised concept on the ground that it protects andconfers rights upon wrongdoers. The concept of adverse possessionappeared in the Code of Hammurabi approximately 2000 years beforeChrist era. Law 30 contained provision “If chieftain or man leaveshis house, garden, and field …. and someone else takes possession ofhis house, garden and field and uses it for three years; if the first ownerreturns and claims his house, garden, and field, it shall not be given tohim, but he who has taken possession of it and used it shall continue touse it.” However, there was an exception to the aforesaid rule: for asoldier captured or killed in battle and the case of the juvenile son of theowner. In Roman times, attached to the land, kind of spirit that wasnurtured by the possessor. Possessor or user of the land was consideredto have greater “ownership” of the land than the titled owner. Weinherited the Common Law concept, being part of the erstwhile Britishcolony. William in 1066 consolidated ownership of land under the Crown.The Statute of Westminster came in 1275 when land records were veryoften scarce and literacy was rare, the best evidence of ownership waspossession. In 1639, the Statute of Limitation fixed the period for recoveryof possession at 20 years. line of thought was also evolved that theperson who possesses the land and produces something of ultimate benefitto the society, must hold the best title to the land. Revenue laws relatingto land have been enacted in the spirit to confer the title on the actualtiller of the land. The Statute of Wills in 1540 allowed lands to be passeddown to heirs. The Statute of Tenures enacted in 1660 ended the feudalsystem and created the concept of the title. The adverse possessionremained as part of the law and continue to exist. The concept ofadverse possession has root in the aspect that it awards ownership ofland to the person who makes the best or highest use of the land. Theland, which is being used is more valuable than idle land, is the conceptof utilitarianism. The concept thus, allows the society as whole tobenefit from the land being held adversely but allows sufficient periodfor the “true owner” to recover the land. The adverse possession statutespermit rapid development of “wild” lands with the weak or indeterminatetitle. It helps in the Doctrine of Administration also as it can be an effectiveand efficient way to remove or cure clouds of title which with memoriesgrow dim and evidence becomes unclear. The possessor who maintainsand improves the land has more valid claim to the land than the ownerwho never visits or cares for the land and uses it, is of no utility. If

Aformer owner neglects and allows the gradual dissociation betweenhimself and what he is claiming and he knows that someone else iscaring by doing acts, the attachment which one develops by caring cannotbe easily parted with. The bundle of ingredients constitutes adversepossession.

B3. We have heard learned counsel appearing for the parties atlength and also the Amicus Curiae, Shri P.S. Patwalia and Shri HuzefaAhmadi, senior counsel. Various decisions of this Court and Privy Counciland English Courts have been cited in which the suit filed by the plaintiffbased on adverse possession has been held to be maintainable fordeclaration of title and protection of the possession or the restoration ofCpossession. Nature of right acquired by adverse possession and evenotherwise as to the right to protect possession against unlawfuldispossession of the plaintiff or for its recovery in case of illegaldispossession.4. Before dilating upon the issue, it is necessary to refer the decisionDin Gurudwara Sahab v. Gram Panchayat Village Sirthala (2014) 1SCC 669 in which this court has referred to the decision of the Punjaband Haryana High Court in Gurudwara Sahib Sannauli v. State ofPunjab since reported in (2009) 154 PLR 756, to opine that no declarationof title can be sought by plaintiff on the basis of adverse possessionEinasmuch as adverse possession can be used as shield by defendantand not as sword by plaintiff. This Court while deciding the questiongave the only reason by simply observing that there is “no quarrel” withthe proposition to the extent that suit cannot be based by the plaintiff onadverse possession. Thus, this point was not contested in GurudwaraSahib v. State Gram Panchayat Village, Sirthala (supra) when thisFCourt expressed said opinion.

5. It is pertinent to mention here that before the aforesaid decisionof this court, there was no such decision of this court holding that suitcannot be filed by plaintiff based on adverse possession. The views tothe contrary of larger and coordinate benches were not submitted forGconsideration of the Two Judge Bench of this Court which decided theaforesaid matter.

6. Three-Judge Bench decision in Sarangadeva Periya Matam& Anr. v. Ramaswami Gondar (Dead) by Lrs. AIR 1966 SC 1603 ofthis Court in which the decision of Privy Council in MusumutHChundrabullee Debia v. Luchea Debia Chowdrain 1865 SCC Online

PC 7 had been relied on, was not placed for consideration before thedivision bench deciding Gurudwara Sahib v. Gram Panchayat, Sirthala.

7. Learned Amicus pointed out that in Sarangadeva PeriyaMatam & Anr. v. Ramaswami Goundar (Dead) by Lrs. (supra) theplaintiff was in the possession of the suit land until January 1950 whenthe ‘mutt’ obtained possession of the land. On February 18, 1954, plaintiffinstituted the suit against the ‘mutt’ for “recovery of possession” of thesuit land o based on an acquisition of title to land by way of “adversepossession”. Three-Judge Bench of this Court has held that the plaintiffacquired the title by his adverse possession and was entitled to recoverthe possession. Following is the relevant discussion:

“1. Sri Sarangadevar Periya Matam of Kumbakonam was theinam holder of lands in Kannibada Zamin, Dindigul Taluk, MaduraiDistrict. In 1883, the then mathadhipathi granted perpetual leaseof the melwaram and kudiwaram interest in portion of the inamlands to one Chinna Gopiya Goundar, the grandfather of theplaintiff-respondent on an annual rent of Rs. 70. The demisedlands are the subject-matter of the present suit. Since 1883 untilJanuary 1950 Chinna Gopiya Goundar and his descendants werein uninterrupted possession and enjoyment of the suit lands. In1915, the mathadhipathi died without nominating successor. Since1915, the descendants of Chinna Gopiya Goundar did not pay anyrent to the math. Between 1915 and 1939 there was nomathadhipathi. One Basavan Chetti was in management of themath for period of 20 years from 1915. The present mathadhipathiwas elected by the disciples of the Math in 1939. In 1928, theCollector of Madurai passed an order resuming the inam landsand directing the full assessment of the lands and payment of theassessment to the math for its upkeep. After resumption, the landswere transferred from the “B” Register of inam lands to the “A”Register of ryotwari lands and joint patta was issued in thename of the plaintiff and other persons in possession of the lands.The plaintiff continued to possess the suit lands until January 1950when the math obtained possession of the lands. On February 18,1954, the plaintiff instituted the suitagainst the math representedby its present mathadhipathi and an agent of the math claimingrecovery of possession of the suit lands. The plaintiff claimed thathe acquired title to the lands by adverse possession and by the

issue of ryotwari patta in his favour on the resumption of theinam.The Subordinate Judge of Dindigul accepted the plaintiff’scontention and decreed the suit. On appeal, the District Judge ofMadurai set aside the decree and dismissed the suit. On secondappeal, the High Court of Madras restored the judgment anddecree of the Subordinate Judge. The defendants now appeal tothis Court by special leave. During the pendency of the appeal,the plaintiff-respondent died and his legal representatives havebeen substituted in his place.

2. The plaintiff claimed title to the suit lands on the followinggrounds: (1) Since 1915 he and his predecessors-in-interest werein adverse possession of the lands, and on the expiry of 12 yearsin 1927, he acquired prescriptive title to the lands under s. 28 readwith Art. 144 of the Indian Limitation Act, 1908;(2) by theresumption proceedings and the grant of the ryotwari patta newtenure was created in his favour and he acquired full ownershipin the lands; and (3) in any event, he was in adverse possession ofthe lands since 1928, and on the expiry of 12 years in 1940 heacquired prescriptive title to the lands under s. 28 read with Art.134-B of the Indian Limitation Act, 1908. We are of the opinionthat the first contention of the plaintiff should be accepted, and itis, therefore, not necessary to consider the other two grounds ofhis claim.

6. We are inclined to accept the respondents’ contention. UnderArt. 144 of the Indian Limitation Act, 1908, limitation for suit bya math or by any person representing it for possession ofFimmovable properties belonging to it runs from the time when thepossession of the defendant becomes adverse to the plaintiff. Themath is the owner of the endowed property.Like an idol, the mathis juristic person having the power of acquiring, owning andpossessing properties and having the capacity of suing and beingsued. Being an ideal person, it must of necessity act in relation toGits temporal affairs through human agency. See Babajirao v.Laxmandas (1904) ILR 28 Bom 215 (223). It may acquireproperty by prescription and may likewise lose property by adversepossession. If the math while in possession of its property isdispossessed or if the possession of stranger becomes adverse,it suffers an injury and has the right to sue for the recovery of the

property. If there is legally appointed mathadhipathi, he mayinstitute the suit on its behalf; if not, the de facto mathadhipathimay do so, see Mahadeo Prasad Singh v. Karia Bharti 62 IndApp 47 at p.51 and where, necessary, disciple or other beneficiaryof the math may take steps for vindicating its legal rights by theappointment of receiver having authority to sue on its behalf, orby the institution of suit in its name by next friend appointed bythe Court. With due diligence, the math or those interested in itmay avoid the running of time. The running of limitation againstthe math under Art. 144 is not suspended by the absence of alegally appointed mathadhipathi; clearly, limitation would runagainst it where it is managed by de facto mathadhipathi. SeeVithalbowa v. Narayan Daji, (1893) I.L.R 18 Bom 507 at p.511,and we think it would run equally if there is neither de jure nor ade facto mathadhipathi.

10. We hold that by the operation of Art. 144 read with s. 28 ofthe Indian Limitation Act, 1908 the title of the math to the suitlands became extinguished in 1927, and the plaintiff acquired titleto the lands by prescription. He continued in possession of thelands until January 1950. It has been found that in January 1950he voluntarily delivered possession of the lands to the math, butsuch 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 vs. Satyaprakash & Ors., 2001 (2) SCC 498,decided by Coordinate Bench, the plaintiff filed suit for declarationof title on the ground of adverse possession and permanent injunction.This Court considered the question, whether the plaintiff had perfectedhis title by adverse possession. This Court has laid down that the lawconcerning adverse possession is well settled, person claiming adversepossession has to prove three classic requirements i.e. nec – nec vi,nec clam and nec precario. The trial court, as well as the First AppellateCourt, decreed the suit while the High Court dismissed it. This Courtrestored the decree passed by the trial court decreeing the plaintiff suitbased on adverse possession and observed:

“6. The short question that arises for consideration in this appealis: whether the High Court erred in holding that the appellant had

not perfected his title by adverse possessionon the ground thatthere was an order of Tahsildar against him to deliver possessionof the suit land to the auction purchasers.

7. The law with regard to perfecting title by adverse possession iswell settled. person claiming title by adverse possession has toBprove three “neck”- nec vi, nec clam and nec precario. In otherwords, he must show that his possession is adequate in continuityin publicity and in extent.In S.M. Karim vs. Bibi Sakina [1964] 6SCR 780 speaking for this Court Hidayatullah, J. (as he then was)observed thus:

C“Adverse possession must be adequate in continuity, in publicityand extent and plea is required at the least to show whenpossession becomes adverse so that the starting point of limitationagainst the party affected can be found.”

14. In Sk. Mukbool Ali vs. Sk. Wajed Hossein, (1876) 25 WR 249Dthe High Court held:

“Whatever the decree might have been, the defendant’s possessioncould not be considered as having ceased in consequences of thatdecree, unless he were actually dispossessed. The fact that thereis decree against him does not prevent the statute of limitationEfrom running.”

15. In our view, the Madras High Court correctly laid down thelaw in the aforementioned cases.

17. From the above discussion, it follows that the judgment anddecree of the High Court under challenge cannot be sustained.FThey are accordingly set aside and the judgment and decree ofthe First Appellate Court confirming the judgment and decree ofthe trial court is restored. The appeal is accordingly allowed but inthe circumstances of the case without costs.”

(emphasis supplied)

9. In Des Raj and Ors. v. Bhagat Ram (Dead) by Lrs. andOrs., (2007) 9 SCC 641, suit filed by the plaintiff for declaration of titleand also for permanent injunction based on adverse possession. TheCourts below decreed the suit of the plaintiff on the ground of adversepossession. The same was affirmed by this Court. This Court consideredHthe change brought about in the Act by Articles 64 and 65 vis-à-vis to

Articles 142 and 144. Issue No.1 was framed whether the plaintiffbecomes the owner of the suit property by way of adverse possession?This Court has observed that plea of adverse possession was indisputablybe governed by Articles 64 and 65 of the Act. This Court has discussedthe matter thus :

“20. plea of adverse possession or plea of ouster wouldindisputably be governed by Articles 64 and 65 of the LimitationAct.

22. The mere assertion of title by itself may not be sufficientunless the plaintiff proves animus possidendi. But the intention onthe part of the plaintiff to possess the properties in suit exclusivelyand not for and on behalf of other co-owners also is evident fromthe fact that the defendants-appellants themselves had earlier filedtwo suits. Such suits were filed for partition. In those suits thedefendants-appellants claimed themselves to be co-owners of theplaintiff. bare perusal of the judgments of the courts belowclearly demonstrates that the plaintiff had even therein assertedhostile title claiming ownership in himself. The claim of hostiletitle by the plaintiff over the suit land, therefore, was, thus, knownto the appellants. They allowed the first suit to be dismissed in theyear 1977. Another suit was filed in the year 1978 which againwas dismissed in the year 1984. It may be true, as has beencontended on behalf of the appellants before the courts below,that co-owner can bring about successive suits for partition asthe cause of action, therefor, would be continuous one. But, it isequally well-settled that pendency of suit does not stop runningof ‘limitation’. The very fact that the defendants despite thepurported entry made in the revenue settlement record of rightsin the year 1953 allowed the plaintiff to possess the same exclusivelyand had not succeeded in their attempt to possess the propertiesin Village Samleu and/or otherwise enjoy the usufruct thereof,clearly goes to show that even prior to institution of the said suitthe plaintiff-respondent had been in hostile possession thereof.

24. In any event the plaintiff made his hostile declaration claimingtitle for the property at least in his written statement in the suitfiled in the year 1968. Thus, at least from 1968 onwards, the plaintiffcontinued to exclusively possess the suit land with knowledgeof the defendants-appellants.

A26. Article 65 of the Limitation Act, 1963, therefore, would in acase of this nature have its role to play, if not from 1953, but atleast from 1968. If that be so, the finding of the High Court thatthe respondent perfected his title by adverse possession and oustercannot be said to be vitiated in law.

B28. We are also not oblivious of recent decision of this Court inGovindammal v. R. Perumal Chettiar and Ors., (2006) 11 SCC600 wherein it was held: (SCC p. 606, para 8)

“In order to oust by way of adverse possession, one has to leaddefinite evidence to show that to the hostile interest of the partyCthat person is holding possession and how that can be provedwill depend on facts of each case.”

31. We, having regard to the peculiar facts obtaining in the case,-are of the opinion that the plaintiffrespondent had established-that he acquired title by ousting the defendantappellants byDdeclaring hostile title in himself which was to the knowledge ofhis co-sharers.”

(emphasis supplied)

10. In Kshitish Chandra Bose v. Commissioner of Ranchi, (1981)2 SCC 103 three-Judge Bench of this Court considered the question ofEadverse possession by plaintiff. The plaintiff has filed suit fordeclaration of title and recovery of possession based on Hukumnamaand adverse possession for more than 30 years. The trial court decreedthe suit on both the grounds, ‘title’ as well as of ‘adverse possession’.The plaintiff’s appeal was allowed by this Court. It has been observedFby this Court that adverse possession had been established by consistentcourse of conduct of the plaintiff in the case, possession was hostile tothe full knowledge of the municipality. Thus, the High Court could nothave interfered with the finding as to adverse possession and could nothave ordered remand of the case to the Judicial Commissioner.GThe order of remand and the proceedings thereafter were quashed.This court restored decree in favour of plaintiff for declaration of titleand recovery of possession and also for permanent injunction, hasdealt with the matter thus:

“2. The plaintiff field suit for declaration of his title and recoveryof possession and also permanent injunction restraining theH

defendant municipality from disturbing the possession of theplaintiff. It appears that prior to the suit, proceedings under Section145 were started between the parties in which the Magistratefound that the plaintiff was not in possession but upheld thepossession of the defendant on the land until evicted in due courseof 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 hehad acquired title to the land by virtue of hukumnama granted tohim by the landlord as far back as April 17, 1912 which is Ex.18.Apart from the question of title, the plaintiff further pleaded thateven if the land belonged to the defendant municipality, he hadacquired title by prescription by being in possession of the land tothe knowledge of the municipality for more than 30 years, that isto say, from 1912 to 1957.

10. Lastly, the High Court thought that as the land in questionconsisted of portion of the tank or land appurtenant thereto,adverse possession could not be proved. This view also seems tobe wrong. If person asserts hostile title even to tank whichas claimed by the municipality, belonged to it and despite the hostileassertion of title no steps were taken by the owner, (namely, themunicipality in this case), to evict the trespasser, his title byprescription would be complete after thirty years.”

(emphasis supplied)

11. In Nair Service Society Ltd. v. K.C. Alexander, AIR 1968SC 1165, the plaintiff filed suit claiming to be in possession for over70 years. The plaintiff claimed possession of the excess land from thesociety, its Manager and Defendants Nos.3 to 6. The society denied therights of the plaintiff to bring suit for ejectment or its liability forcompensation. Alternatively, the society claimed the value ofimprovements. The main controversy decided by the High Court waswhether the plaintiff can maintain suit for possession without proof oftitle. This court observed that in case the rightful owner does not comeforward within the period of limitation his right is lost, and the possessoryowner acquires an absolute title. The plaintiff was in de facto possessionand was entitled to remain in possession and only the State could evicthim. The State was not impleaded as party in the case. The action of

Athe society was violent invasion of his possession and in the law, as itstands in India, the plaintiff can maintain possessory suit under theprovisions of the Specific Relief Act, 1963. The plaintiff has assertedthat he had perfected his title by “adverse possession” but he did not jointhe State in suit to get declaration. He may be said to have not restedthe suit on the acquired title. The suit was thus limited to recovery ofBpossession from one who had trespassed against him. The Court observedthat for the plaintiff to maintain suit based on adverse possession, it wasnecessary to implead the State Government i.e. the owner of the land asa party to the suit. plaintiff can maintain suit based on adversepossession as he acquires absolute title. The Court observed:

C“(17) In our judgment this involves an incorrect approach to ourproblem. To express our meaning we may begin by reading 1907AC 73 to discover if the principle that possession is good againstall but the true owner has in any way been departed from. 1907AC 73 reaffirmed the principle by stating quite clearly:

D“It cannot be disputed that person in possession of land in theassumed character of owner and exercising peaceably theordinary rights of ownership has perfectly good title againstall the world but the rightful owner. And if the rightful ownerdoes not come forward and assert his title by the process oflaw within the period prescribed by the provisions of the statuteEof Limitation applicable to the case, his right is foreverextinguished, and the possessory owner acquires an absolutetitle.”

Therefore, the plaintiff who was peaceably in possession wasentitled to remain in possession and only the State could evictFhim. The action of the Society was violent invasion of hispossession and in the law, as it stands in India the plaintiff couldmaintain possessor suit under the provisions of the Specific ReliefActin which title would be immaterial or suit for possessionwithin 12 years in which the question of title could be raised. Asthis was suit of latter kind title could be examined. But whoseGtitle? Admittedly neither side could establish title. The plaintiff atleast pleaded the statute of Limitation and asserted that he hadperfected his title by adverse possession. But as he did not jointhe State in his suit to get declaration, he may be said to havenot rested his case on an acquired title.His suit was thus limitedHto recovering possession from one who had trespassed against

him. The enquiry thus narrows to this: did the Society have anytitle in itself, was it acting under authority express or implied ofthe true owner or was it just pleading title in third party? Tothe first two questions we find no difficulty in furnishing an answer.It is clearly in the negative. So the only question is whether thedefendant could plead that the title was in the State? Since inevery such case between trespassers the title must be outstandingin third party defendant will be placed in position of dominance.He has only to evict the prior trespasser and sit pretty pleadingthat 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 someright by merely intruding upon land in the night, running up hutand occupying it before morning’. This will be subversive of thefundamental doctrine which was accepted always and wasreaffirmed in 1907 AC 73. The law does not, therefore, countenancethe doctrine of ‘findings keepings’.(22) The cases of the Judicial Committee are not binding on usbut we approve of the dictum in 1907 AC 73. No subsequent casehas been brought to our notice departing from that view. No doubta great controversy exists over the two cases of (1849) 13 QB945 and (1865) 1 QB 1 but it must be taken to be finally resolvedby 1907 AC 73. similar view has been consistently taken inIndia and the amendment of the Indian Limitation Act has givenapproval to the proposition accepted in 1907 AC 73 and may betaken to be declaratory of the law in India. We hold that the suitwas maintainable.”

(emphasis supplied)

12. In Lallu Yashwant Singh (dead) by his legal representativev. Rao Jagdish Singh & Ors., AIR 1968 SC 620, this Court hasobserved that taking forcible possession is illegal. In India, persons arenot 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 possessionis illegal. The Court affirmed the decision of Privy Council in MidnapurZamindary Company Ltd. V. Naresh Narayan Roy AIR 1924 PC 144and other decisions and held:

“10. In Midnapur Zamindary Company Limited v. Naresh NarayanRoy, 51 Ind App 293 = at p. 299 (AIR 1924 PC 144 at p.147), thePrivy Council observed:

“In India persons are not permitted to take forcible possession;they must obtain such possession as they are entitled to througha Court.”

11. In K.K. Verma v. Naraindas C. Malkani (AIR 1954 Bom 358at p. 360) Chagla C.J., stated that the law in India was essentiallydifferent from the law in England. He observed:

“Under the Indian law the possession of tenant who hasceased to be tenant is protected by law. Although he may nothave right to continue in possession after the termination ofthe tenancy his possession is juridical and that possession isprotected by statute. Under Section 9 of the Specific ReliefAct tenant who has ceased to be tenant may sue forpossession against his landlord if the landlord deprives him ofpossession otherwise than in due course of law, but trespasserwho has been thrown out of possession cannot go to Courtunder Section 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 defendantcan be raised or gone into in that case (under Section 9 of theSpecific Relief Act). The plaintiff will be entitled to succeedwithout proving any title on which he can fall back upon andthe defendant cannot succeed even though he may be in aposition to establish the best of all titles. The restoration ofpossession in such suit is, however, always subject to regulartitle suit and the person who has the real title or even the bettertitle cannot, therefore, be prejudiced in any way by decree insuch suit. It will always be open to him to establish his title ina regular suit and to recover back possession.”

The High Court further observed:

“Law respects possession even if there is no title to support it. Itwill not permit any person to take the law in his own hands and todispossess person in actual possession without having recourse

to Court. No person can be allowed to become Judge in hisown 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 wantedto eject person into the proper Court and to prevent them fromgoing with high hand and ejecting such persons.”

14. In Hillava Subbava v. Narayanappa, (1911) 13 Bom. LR 1200it was observed:

“No doubt, the true owner of property is entitled to retainpossession, even though he has obtained it from trespasser byforce 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 therespondent. It was not suit under Section 9 of the Specific ReliefAct. In (1881) ILR 5 Bom 387, it was recognised that “if there isa breach of the peace in attempting to take possession, that affordsa ground for criminal prosecution, and, if the attempt is successful,for summary suit also for restoration to possession under Section9 of the Specific Relief Act I of 1877-Dadabhai Narsidas v. TheSub-Collector of Broach, (1870) 7 Bom. HC AC 82.” In (1890)ILR 15 Bom 238 it was observed by Sargent J., as follows:

“The Indian Legislature has, however, provided for the summaryremoval of anyone who dispossesses another, whether peaceablyor otherwise than by due course of law; but subject to suchprovision there is no reason for holding that the rightful owner sodispossessing the other is trespasser, and may not rely for thesupport of his possession on the title vested in him, as he clearlymay do by English law. This would also appear to be the viewtaken by West J., in (1881) ILR 5 Bom 387.”

15. In our opinion, the law on this point has been correctly statedby 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 wellas Full Bench of the Allahabad High Court in Yar Mohammad v. LaxmiDas AIR 1959 All. 1.

A13. In Somnath Berman v. Dr. S.P. Raju & Anr. AIR 1970 SC846, this Court has recognized the right of person having possessorytitle to obtain declaration that he was the owner of the land in suitand an injunction restraining the defendant from interfering with hispossession. This Court has further observed that section 9 of the SpecificRelief Act, 1963 is in no way inconsistent with the position that as againstBa wrong-doer, prior possession of the plaintiff, in an action of ejectmentis sufficient title even if the suit is brought more than six months after theact of dispossession complained of and that the wrong-doer cannotsuccessfully resist the suit by showing that the title and the right topossession vested in third party. This Court has observed:C“10. In Narayana Row v. Dharmachar, (1903) ILR 26 Mad 514 abench of the Madras High Court consisting of Bhashyam Ayyangarand Moore, JJ. held that possession is, under the Indian, as underthe English law, good title against all but the true owner. Section 9of the Specific Relief Act is in no way inconsistent with the positionDthat as against wrongdoer, prior possession of the plaintiff, in anaction of ejectment, is sufficient title, even if the suit be broughtmore than six months after the act of dispossession complainedof and that the wrong-doer cannot successfully resist the suit byshowing that the title and right to possession are in third person.The same view was taken by the Bombay High Court in KrishnaraoEYashwant v. Vasudev Apaji Ghotikar, (1884) ILR 8 Bom 871.That was also the view taken by the Allahabad High Court-seeUmrao Singh v. Ramji Das, ILR 36 All 51, Wali Ahmad Khan v.Ahjudhia Kandu, (1891) ILR 13 All 537. In Subodh Gopal Bosev. Province of Bihar, AIR 1950 Pat 222 the Patna High CourtFadhered to the view taken by the Madras, Bombay and AllahabadHigh Courts. The contrary view taken by the Calcutta High Courtin Debi Churn Boldo v. Issur Chunder Manjee, (1883) ILR 9 Cal39; Ertaza Hossein v. Bany Mistry, (1883) ILR 9 Cal 130,Purmeshur Chowdhry v. Brijo Lall Chowdhry, (1890) ILR 17 Cal256 and Nisa Chand Gaita v. Kanchiram Bagani, (1899) ILR 26GCal 579, in our opinion does not lay down the law correctly.”

(emphasis supplied)

It is apparent from the aforesaid decision that person is entitledto bring suit of possessory title to obtain possession even though theHtitle may vest in third person. person in the possessory title can get

injunction also, restraining the defendant from interfering with hispossession.

14. Given the aforesaid, question to ponder is when personhaving no title, merely on the strength of possessory title can obtain aninjunction and can maintain suit for ejectment of trespasser. Why aperson who has perfected his title by way of adverse possession cannotfile suit for obtaining an injunction protecting possession and for recoveryof possession in case his dispossession is by third person or by anowner after the extinguishment of his title. In case person in adversepossession has perfected his title by adverse possession and after theextinguishment of the title of the true owner, he cannot be successfullydispossessed by true owner as the owner has lost his right, title andinterest.

15. In Padminibai v. Tangavva & Ors., AIR 1979 SC 1142, asuit was filed by the plaintiff for recovery of possession on the basis thather husband was in exclusive and open possession of the suit landsadversely to the defendant for period exceeding 12 years and hispossession was never interrupted or disturbed. It was held that he acquiredownership by prescription. The suit filed within 12 years of his deathwas within limitation. Thus, the plaintiff was given the right to recoverpossession based on adverse possession as Tatya has acquired ownershipby 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 coplaintiffs in the original suit.

11. We have, therefore, no hesitation in holding in agreement withthe courts below that Tatya had acquired title by remaining inexclusive and open possession of the suit lands adversely toPadmini Bai for period far exceeding 12 years, and thispossession 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,AIR 1970 SC 1778, this Court considered the question of adversepossession of Dalhousie Institute Society based on invalid grant. It washeld by this Court that title was acquired by adverse possession basedon invalid grant and the right was given to the claimant/applicant to claim

Acompensation. This Court held that person acquires title by adversepossession and observed:

“16. There is no material placed before us to show that the granthas been made in the manner required by law though as fact agrant of the site has been made in favour of the Institute. Theevidence relied on by the Special Land Acquisition Judge and theHigh Court also clearly establishes that the respondent has beenin open, continuous and uninterrupted possession and enjoymentof the site for over 60 years. In this respect, the materialdocumentary evidence referred to by the High Court clearlyestablishes that the respondent has been treated as owner of thesite not only by the Corporation but also by the Government. Thepossession of the respondent must have been on the basis of thegrant made by the Government, which, no doubt, is invalid in law.As to what exactly is the legal effect of such possession has beenconsidered by this Court in Collector of Bombay v. MunicipalCorporation of the City of Bombay, [1952] SCR 43 as follows:

“...the position of the respondent Corporation and itspredecessor in title was that of person having no legal titlebut nevertheless holding possession of the land under colour ofan invalid grant of the land in perpetuity and free from rent forthe purpose of market. Such possession not being referableto any legal title it was prima facie adverse to the legal title ofthe Government as owner of the land from the very momentthe predecessor in title of the respondent Corporation tookpossession of the land under the invalid grant. This possessionhas continued openly, as of right and uninterruptedly for over70 years and the respondent Corporation has acquired thelimited title to it and its predecessor in title had been prescribingfor during all this period, that is to say, the right to hold the landin perpetuity free from rent but only for the purposes of amarket in terms of the Government Resolution of 1865....”

17. The above extract establishes that person in such possessionclearly acquires title by adverse possession. In the case beforeus, there are concurrent findings recorded by the High Court andthe 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 acquiredby adverse possession.

17. In Mohammed Fateh Nasib v. Swarup Chand Hukum Chand& Anr. AIR 1948 PC 76, Privy Council considered the question of adversepossession by plaintiff. In the plaint, his case was based upon continuous,open, exclusive and undisturbed possession. He averred that he hadacquired an indefeasible title to the suit property by adverse possessionagainst the whole world. In 1928, he was surreptitiously dispossessedfrom the suit property. The question arose for consideration whether theplaintiff remained in adverse possession for 12 years and whether it wasadverse to the wakf. The Privy Council agreed with the findings of theHigh Court that the “plaintiff” and his predecessors-in-interest hadremained in possession of the suit property for more than 12 years before1928 to acquire title under section 28 of the Act and the plaintiff wasnot mere trespasser. The court further held that title by the adversepossession can be established against wakf property also. The PrivyCouncil observed:-“On that basis the first question to be determined is whether theplaintiff proved continuous, open exclusive and undisturbedpossession of the property in suit for 12 years and upwards before1928when he was dispossessed, that being the relevant date underArticle 142 of the Limitation Act. If that question is answered inthe affirmative then the further question arises whether suchpossession 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 agreewith the finding of the High Court that the plaintiff and hispredecessors-in-interest had been in possession of the suit propertyfor more than 12 years prior to 1928 so as to acquire title underSection 28 of the Limitation Act. It is no doubt true, as the learnedSubordinate Judge held, that the claim of mere trespasser totitle by adverse possession will be confined strictly to the propertyof which he has been in actual possession. But that principle hasno application in the present case. The plaintiff is not meretrespasser; he himself purchased the property for large sumand Aberjan, upon whose possession the claim ultimately rests,was put into possession by an order of the Court, whether or notsuch order was rightly made. Apart from this, their Lordships

Athink that the character of the possession established by theplaintiff was adequate to found title even in trespasser.

Their Lordships feel no hesitation in agreeing with the High Courtthat 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 possessionwas adverse to the wakf. It is not disputed that in law title byadverse possession can be established against wakf property,butit is clear that trustee for charity entering into possession ofproperty belonging to the charity cannot, whilst remaining trustee,Cchange the character of his possession, and assert that he is inpossession as beneficial owner.”

(emphasis supplied)

The plaintiff’s title was declared based on adverse possession.D18. The question of perfecting title by adverse possession againcame to be considered by the Privy Council in Gunga Govind Mundul& Ors. v. The Collector of the Twenty-Four Pergunnahs & Ors. 11M.I.A. 212, it observed that there is an extinguishment of title by the lawof limitation. The practical effect is the extinction of the title of the ownerEin 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 sucha case, to the owner whose property is encroached upon ; and ifhe suffers his right to be barred by the Law of Limitation, theFpractical effect is the extinction of his title in favour of the party inpossession; see Sel. Rep., vol. vi., p. 139, cited in Macpherson,Civil Procedure, p. 81 (3rd ed.). Now, in this case, the familyrepresented by the Appellants is proved to have been upwards ofthirty years in possession. The High Court has decided that theGPrince’s title is barred, and the effect of that bar must operate infavour of the party in possession.

Supposing that, on the extinction of the title of person having alimited interest, right to enter might arise in favour of aremainderman or reversioner, the present case has noHresemblance to that.”

8. It is of the utmost consequence in India that the security whichlong possession efforts should not be weakened. Disputes areconstantly arising about boundaries and about the identity of lands,— contiguous owners are apt to charge one another withencroachment. If twelve years’ peaceable and uninterruptedpossession of lands, alleged to have been enjoyed by encroachmenton the adjoining lands, can be proved, purchaser may taken thattitle in safety; but, if the party out of possession could set up asixty years’ law of limitation, merely by making common causewith Collector, who could enjoy security against interruption?The true answer to such contrivance is; the legal right of theGovernment is to its rent; the lands owned by others; as betweenprivate owners contesting inter see the title of the lands, the lawhas established limitation of twelve years; after that time, itdeclares not simply that the remedy is barred, but that that thetitle is extinct in favour of the possessor. The Government has notitle to intervene in such contests, as its title to its rent in the natureof jumma is unaffected by transfer simply of proprietary right inthe lands. The liability of the lands of Jumma is not affected by atransfer of proprietary right, whether such transfer is affectedsimply by transfer of title, or less directly by adverse occupationand the law of limitation.”

(emphasis supplied)

19. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, aquestion arose under section 66 of the Code of Civil Procedure, 1908which provides that no suit shall be maintained against certifiedpurchaser. The question arose for consideration that in case possessionis disturbed whether plaintiff can take the alternative plea that the titleof the person purchasing benami in court auction was extinguished bylong and uninterrupted adverse possession of the real owner. If thepossession of the real owner ripens into title under the Act and he isdispossessed, he can sue to obtain possession. This Court has held thatin such case it would be open for the plaintiff to take such plea butwith full particulars so that the starting point of limitation can be found. Amere suggestion in the relief clause that there was an uninterruptedpossession for several 12 years or that the plaintiff had acquired anabsolute title was not enough to raise such plea. Long possession wasnot necessarily an adverse possession and the prayer clause is not

Asubstitute for plea of adverse possession. The opinion expressed isthat plaintiff can take plea of adverse possession but with full particulars.The Court has observed:

“5. As an alternative, it was contended before us that the title ofHakir Alam was extinguished by long and uninterrupted adverseBpossession of Syed Aulad Ali and after him of the plaintiff. TheHigh Court did not accept this case. Such case is, of course,open to plaintiff to make if his possession is disturbed. If thepossession of the real owner ripens into title under the LimitationAct and he is dispossessed, he can sue to obtain possession, forhe does not then rely on the benami nature of the transaction. ButCthe alternative claim must be clearly made and proved. The HighCourt held that the plea of adverse possession was not raised inthe suit and reversed the decision of the two courts below. Theplea of adverse possession is raised here. Reliance is placed beforeus on Sukhan Das v. Krishanand, ILR 32 Pat 353 and Sri BhagwanDSingh v. Ram Basi Kuer, AIR 1957 Pat 157, to submit that such

plea is not necessary and alternatively, that if plea is required,what can be considered proper plea. But these two cases canhardly help the appellant. No doubt, the plaint sets out the factthat after the purchase by Syed Aulad Ali, benami in the name ofhis son-in-law Hakir Alam, Syed Aulad Ali continued in possession

of the property but it does not say that this possession was at anytime adverse to that of the certified purchaser. Hakir Alam wasthe son-in-law of Syed Aulad Ali and was living with him. Thereis no suggestion that Syed Aulad Ali ever asserted any hostile titleagainst him or that dispute with regard to ownership andFpossession had ever arisen. Adverse possession must be adequatein continuity, in publicity and extent and plea is required at theleast to show when possession becomes adverse so that the startingpoint of limitation against the party affected can be found. Thereis no evidence here when possession became adverse if it at alldid, and mere suggestion in the relief clause that there was anGuninterrupted possession for “several 12 years” or that the plaintiffhad acquired “an absolute title” was not enough to raise such aplea. Long possession is not necessarily adverse possession andthe prayer clause is not substitute for plea. The cited casesneed hardly be considered because each case must be determinedHupon the allegations in the plaint in that case. It is sufficient to

point out that in Bishun Dayal v. Kesho Prasad, AIR 1940 PC 202the Judicial Committee did not accept an alternative case basedon possession after purchase without proper plea.”

(emphasis supplied)

20. There is an acquisition of title by adverse possession as such,such person in the capacity of plaintiff can always use the plea incase any of his rights are infringed including in case of dispossession. InMandal Revenue Officer v. Goundla Venkaiah & Anr., (2010) 2 SCC461 this Court has referred to the decision in State of Rajasthan v.Harphool Singh (2000) 5 SCC 652 in which the suit was filed by theplaintiff based on acquisition of title by adverse possession. This Courthas referred to other decisions also in Annakili v. A. Vedanayagam(2007) 14 SCC 308 and P.T. Munichikkanna Reddy v. Revamma (2007)6 SCC 59. It has been observed that there can be an acquisition of titleby adverse possession. It has also been observed that adverse possessioneffectively shifts the title already distanced from the paper owner to theadverse possessor. Right thereby accrues in favour of the adversepossessor. 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 hadacquired title by adverse possession over the suit land situated atNohar-Bhadra Road at Nohar within the State of Rajasthan. Thesuit filed by the respondent against his threatened dispossessionwas decreed by the trial court with the finding that he had acquiredtitle by adverse possession. The first and second appeals preferredby the State Government were dismissed by the lower appellatecourt and the High Court respectively. This Court reversed thejudgments and decrees of the courts below as also of the HighCourt and held that the plaintiff-respondent could not substantiatehis claim of perfection of title by adverse possession. Some of theobservations made on the issue of acquisition of title by adversepossession 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 adversepossession and that too in respect of public property isconcerned, the question requires to be considered more seriouslyand effectively for the reason that it ultimately involvesdestruction of right/title of the State to immovable property

and conferring upon third-party encroacher title where hehad none. The decision in P. Lakshmi Reddy v. L. LakshmiReddy, AIR 1957 SC 314, adverted to the ordinary classicalrequirement - 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 adverseto the competitor. It was also observed therein that whatevermay be the animus or intention of person wanting to acquiretitle by adverse possession, his adverse possession cannotcommence until he obtains actual possession with the requiredanimus.”

50. Before concluding, we may notice two recent judgments inwhich law on the question of acquisition of title by adversepossession 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) thepossession of the defendant should become adverse to theplaintiff; and (2) the defendant must continue to remain inpossession for period of 12 years thereafter. Animuspossidendi as is well known is requisite ingredient of adverse-possession. It is now wellsettled principle of law that merepossession of the land would not ripen into possessory title forthe said purpose. Possessor must have animus possidendi andhold the land adverse to the title of the true owner. For the saidpurpose, not only animus possidendi must be shown to exist,but the same must be shown to exist at the commencement ofthe possession. He must continue in the said capacity for theperiod prescribed under the Limitation Act. Mere longpossession, it is trite, for period of more than 12 years withoutanything more does not ripen into title.”

51. In P.T. Munichikkanna Reddy v. Revamma, 2007 (6) SCC 59,the Court considered various facets of the law of adversepossession and laid down various propositions including thefollowing: (SCC pp. 66 & 68, paras 5 & 8)

8. … to assess claim of adverse possession, two-pronged enquiryis required:

1. Application of limitation provision thereby jurisprudentially “wilfulneglect” element on part of the owner established. Successfulapplication in this regard distances the title of the land from thepaper-owner.

2. Specific positive intention to dispossess on the part of the adversepossessor effectively shifts the title already distanced from thepaper-owner, to the adverse possessor. Right thereby accrues infavour of adverse possessor as intent to dispossess is an expressstatement of urgency and intention in the upkeep of the property.(emphasis in original)”

(emphasis supplied)

21. In P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC59, this Court has observed as under:

2. The defendant-respondents in their written statement deniedand disputed the aforementioned assertion of the plaintiffs andpleaded their own right, title and interest as also possession in orover the said 1 acre 21 guntas of land. The learned trial Judgedecreed the suit inter alia holding that the plaintiff-appellants have acquired title by adverse possession as theyhave been in possession of the lands in question for periodof more than 50 years. On an appeal having been preferredthereagainst by the respondents before the High Court, the saidjudgment of the trial court was reversed holding:“(i) … The important averments of adverse possession aretwofold. One is to recognise the title of the person againstwhom adverse possession is claimed. Another is to enjoythe property adverse to the title-holder’s interest aftermaking him known that such enjoyment is against his owninterest. These two averments are basically absent in thiscase both in the pleadings as well as in the evidence….

(ii) The finding of the court below that the possession of theplaintiffs became adverse to the defendants between 1934-36 is again an error apparent on the face of the record. Asit is now clarified before me by the learned counsel for theappellants that the plaintiffs’ claim in respect of the otherland of the defendants is based on the subsequent saledeed dated 5-7-1936.

It is settled law that mere possession even if it is true forany number of years will not clothe the person in enjoymentwith the title by adverse possession. As indicated supra,the important ingredients of adverse possession should havebeen satisfied.”

6. Efficacy of adverse possession law in most jurisdictions dependson strong limitation statutes by operation of which right to accessthe court expires through efflux of time. As against rights of thepaper-owner, in the context of adverse possession, there evolvesa set of competing rights in favour of the adverse possessor whohas, for long period of time, cared for the land, developed it, asagainst the owner of the property who has ignored the property.Modern statutes of limitation operate, as rule, not only tocut off one’s right to bring an action for the recovery ofproperty that has been in the adverse possession of anotherfor specified time but also to vest the possessor with title.The intention of such statutes is not to punish one who neglects toassert rights, but to protect those who have maintained thepossession of property for the time specified by the statute underclaim of right or colour of title. (See American Jurisprudence,Vol. 3, 2d, p. 81.) It is important to keep in mind while studying theAmerican notion of adverse possession, especially in the backdropof limitation statutes, that the intention to dispossess cannot begiven complete go-by. Simple application of limitation shall notbe enough by itself for the success of an adverse possession claim.

8. Therefore, to assess claim of adverse possession, two-prongedenquiry 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 theland from the paper-owner.

2. Specific positive intention to dispossess on the part ofthe adverse possessor effectively shifts the title alreadydistanced from the paper-owner, to the adversepossessor. Right thereby accrues in favour of adversepossessor as intent to dispossess is an expressstatement of urgency and intention in the upkeep of theproperty.

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 inpossession of property so long as there is no intrusion. Non-use of the property by the owner even for long time won’taffect his title. But the position will be altered when anotherperson takes possession of the property and asserts rightover it. Adverse possession is hostile possession byclearly asserting hostile title in denial of the title of thetrue owner. It is well-settled principle that partyclaiming adverse possession must prove that hispossession is ‘nec vi, nec clam, nec precario’, that is,peaceful, open and continuous. The possession must beadequate in continuity, in publicity, and in extent to show thattheir possession is adverse to the true owner. It must start witha wrongful disposition of the rightful owner and be actual, visible,exclusive, hostile and continued over the statutory period. (SeeS.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N.Venkatarayappa v. State of Karnataka.) Physical fact ofexclusive possession and the animus possidendi to hold as ownerin exclusion to the actual owner are the most important factorsthat are to be accounted in cases of this nature. Plea of adversepossession is not pure question of law but blended one offact and law. Therefore, person who claims adversepossession should show: (a) on what date he came intopossession, (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) hispossession was open and undisturbed. person pleadingadverse possession has no equities in his favour. Since he istrying to defeat the rights of the true owner, it is for him toclearly plead and establish all facts necessary to establish hisadverse possession.”

22. In State of Haryana v. Mukesh Kumar & Ors., (2011) 10SCC 404, the court considered the question whether the plaintiff hadbecome the owner of the disputed property by way of adverse possessionand in that context considered the decisions in Revamma (supra) andFairweather v. St. Marylebone Property Co. Ltd. (1962) 2 AER 288(HL) and Taylor v. Twinberrow 1930 All ER Rep 342 (DC) and observedthat adverse possession confers negative and consequential right effected

Aonly as somebody else’s positive right to access the court is barred byoperation of law. Right of the paper owner is extinguished and thatcompeting rights evolve in favour of adverse possessor as he cared forthe land, developed it as against the owner of the property who hadignored the property. This Court has observed thus:

“32. This Court in Revamma (2007) 6 SCC 59 observed that tounderstand the true nature of adverse possession, Fairweather v.St Marylebone Property Co. Ltd. (1962) 2 All ER 288 (HL) canbe considered where the House of Lords referring to Taylor v.Twinberrow (1930) 2 K.B. 16 termed adverse possession as anegative and consequential right effected only because somebodyCelse’s positive right to access the court is barred by operation oflaw. As against the rights of the paper-owner, in the context ofadverse possession, there evolves set of competing rights infavour of the adverse possessor who has, for long period oftime, cared for the land, developed it, as against the owner of theDproperty who has ignored the property.”

(emphasis supplied)

23. In Krishnamurthy S. Setlur (dead) by LRs. v. O.V. NarasimhaSetty & Ors., (2007) 3 SCC 569, the Court pointed out that the duty ofthe plaintiff while claiming title based on adverse possession. The suitEwas filed by the plaintiff on 11.12.1981. The trial court held that theplaintiff has perfected the title in the suit lands based on adversepossession, and decreed the suit. This Court has observed that the plaintiffmust plead and prove the date on and from which he claims to be inexclusive, continuous and undisturbed possession. The question aroseFfor consideration whether tenant’s possession could be treated aspossession of the owner for computation of the period of 12 years underthe provisions of the Act. What is the nature of pleading required in theplaint to constitute plea of adverse possession has been emphasised bythis Court and another question also arose whether the plaintiff wasGentitled to get back the possession from the defendants? This Court hasobserved thus:

“12. Section 27 of the Limitation Act, 1963 operates to extinguishthe right to property of person who does not sue for its possessionwithin the time allowed by law. The right extinguished is the rightHwhich the lawful owner has and against whom claim for adverse

possession is made, therefore, the plaintiff who makes claim foradverse possession has to plead and prove the date on and fromwhich he claims to be in exclusive, continuous and undisturbedpossession. The question whether possession is adverse or not isoften one of simple fact but it may also be conclusion of law ora mixed question of law and fact. The facts found must beaccepted, but the conclusion drawn from them, namely, ouster oradverse possession is question of law and has to be consideredby the court.

13. As stated, this civil appeal arises from the judgment of theHigh Court in RFA No. 672 of 1996 filed by the original defendantsunder Section 96 CPC. The impugned judgment, to say the least,is bundle of confusion. It quotes depositions of witnesses asfindings. It quotes findings of the courts below which have beenset aside by the High Court in the earlier round. It criticizes thefindings given by the coordinate Bench of the High Court in theearlier round of litigation. It does not answer the question of lawwhich arises for determination in this case. To quote an example,one of the main questions which arises for determination, in thiscase, is whether the tenant’s possession could be treated aspossession of the owner in computation of the period of twelveyears under Article 64 of the Limitation Act, 1963.Similarly, as anexample, the impugned judgment does not answer the question asto whether the decision of the High Court dated 14.8.1981 in RSANo. 545 of 1973 was at all binding on the LRs. of Iyengar/theiralienees. Similarly, the impugned judgment does not consider theeffect of the judgment dated 10.11.1961 rendered by the trial courtin Suit No. 94 of 1956 filed by K.S. Setlur against Iyengar interalia for reconveyance in which the court below did not accept thecontention of K.S. Setlur that the conveyance executed by KalyanaSundram Iyer in favour of Iyengar was benami transaction.Similarly, the impugned judgment has failed to consider the effectof the observations made by the civil court in the suit filed byIyengar for permanent injunction bearing Suit No. 79 of 1949 tothe effect that though Shyamala Raju was in possession andcultivation, whether he was tenant under Iyengar or under K.S.Setlur was not conclusively proved. Similarly, the impugnedjudgment has not at all considered the effect of Iyengar or hisLRs. not filing suit on title despite being liberty given to them in

Athe 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 theplaint. In the plaint, the plaintiff who claims to be owner by adversepossession has to plead actual possession. He has to plead theperiod and the date from which he claims to be in possession. Theplaintiff has to plead and prove that his possession was continuous,Bexclusive and undisturbed to the knowledgeof the real owner ofthe land. He has to show hostile title. He has to communicatehis hostility to the real owner. None of these aspects have beenconsidered by the High Court in its impugned judgment. As statedabove, the impugned judgment is under Section 96 CPC, it is not aCjudgment under Section 100 CPC. As stated above, adversepossession or ouster is an inference to be drawn from the factsproved (sic) that work is of the first appellate court.”

(emphasis supplied)

24. In P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCCD59, the plaintiff claimed the title based on adverse possession. The courtobserved:

“5. Adverse possession in one sense is based on the theory orpresumption that the owner has abandoned the property to theadverse possessor on the acquiescence of the owner to the hostileEacts and claims of the person in possession. It follows that soundqualities of 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 LittleRock 227 Ark. 1085: 303 S.W. 2d 569 (1957); Monnot v. MurphyF207 N.Y. 240 100 N.E. 742 (1913); City of Rock Springs v. Sturm39 Wyo. 494: 273 P. 908: 97 A.L.R. 1 (1929).

6. Efficacy of adverse possession law in most jurisdictions dependon strong limitation statutes by operation of which right to accessthe court expires through efflux of time. As against rights of theGpaper-owner, in the context of adverse possession, there evolvesa set of competing rights in favour of the adverse possessor whohas, for long period of time, cared for the land, developed it, asagainst the owner of the property who has ignored the property.Modern statutes of limitation operate, as rule, not only to cut offHone’s right to bring an action for the recovery of property that has

been in the adverse possession of another for specified time butalso to vest the possessor with title.The intention of such statutesis not to punish one who neglects to assert rights but to protectthose who have maintained the possession of property for thetime specified by the statute under claim of right or colour of title.(See American Jurisprudence, Vol. 3, 2d, Page 81). It is importantto keep in mind while studying the American notion of AdversePossession, especially in the backdrop of Limitation Statutes, thatthe intention to dispossess cannot be given complete go by. Simpleapplication of limitation shall not be enough by itself for the successof an adverse possession claim.”

(emphasis supplied)

25. In Halsbury’s Laws of England, 4[th] Edn., Vol. 28, para 777positions of person in adverse possession has been discussed and it hasbeen observed on the basis of various decisions that person in possessionhas transmissible interest in the property and after expiration of thestatutory period, it ripens as good right to possession. Para 777 is asunder:

“777. Position of person in adverse possession: While personwho is in possession of land without title continues in possession,then, before the statutory period has elapsed, he has transmissibleinterest in the propertywhich is good against all the world exceptthe rightful owner, but an interest which is liable at any moment tobe defeated by the entry of the rightful owner; and, if that personis succeeded in possession by one claiming through him who holdsuntil the expiration of the statutory period, the successor has thenas good 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 theeffect of the expiration of the period of limitation has also been discussedin Para 783 and once right is lost to recover the possession, the samecannot be re-vested by any re-entry or by subsequent acknowledgmentof title. Para 783 is extracted hereunder:

“783. Extinction of title: At the expiration of the periodsprescribed by the Limitation Act 1939 for any person to bring anaction to recover land (including redemption action) or an action

Ato enforce an advowson, the title of that person to the land oradvowson is extinguished. This is subject to the special provisionsrelating to settled land and land held on trust and the provisionsfor constituting the proprietor of registered land trustee for theperson who has acquired title against him. The extinguished title-cannot afterward be revested either by reentry or by subsequentB-payment or acknowledgment of title. rentcharge is extinguished”when the remedy to recover it is barred.

(emphasis supplied)

27. Nature of title acquired by adverse possession has also beenCdiscussed in the Halsbury’s Laws of England in Para 785. It has beenobserved that adverse possession leaves the occupant with title gainedby the fact of possession and resting on the infirmity of the rights ofothers to eject him. Same is “good title”, both at law and in equity.Para 785 is also extracted hereunder:

“785. Nature of title acquired: The operation of the statutoryprovision for the extinction of title is merely negative; it extinguishesthe right and title of the dispossessed owner and leaves theoccupant with title gained by the fact of possession and restingon the infirmity of the right of others to eject him.

title gained by the operation of the statute is good title, both atlaw and in equity, and will be forced by the court on reluctantpurchaser. Proof, however, that vendor and those through whomhe claims have had independent possession of an estate for twelveyears will not be sufficient to establish saleable title withoutFevidence to show the state of the title at the time that possessioncommenced. If the contract for purchase is an open one,possession for twelve years is not sufficient, and full length ofthe title is required. Although possession of land is prima facieevidence of seisin in fee, it does not follow that person who hasGgained title to land from the fact of certain persons being barredof their rights has the fee simple vested in himself; for, althoughhe may have gained an indefeasible title against those who had anestate in possession, there may be persons entitled in reversion orremainder whose rights are quite unaffected by the statute.”

(emphasis supplied)

28. In an article published in Harvard Law Review on “Title byAdverse Possession” by Henry W. Ballantine, as to the question ofadverse possession and acquisition of title it has been observed on strengthof various decisions that adverse possession vests the possessor withthe complete title as effectually as if there had been conveyance bythe 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. SanitaryDistrict, 260 Ill. 423, 429, 103 N.E. 175 (1913); AMES, LECTURESON LEGAL HIST. 197; 3 ANGLO-AMERICAN ESSAYS, 567). Theadverse possessor does not derive his title from the former owner, butfrom new source of title, his possession. The “investitive fact” is thedisseisin and exercise of possession as observed in Camp v. Camp, 5Conn. 291 (1824); Price v. Lyon, 14 Conn. Conn. 279, 290 (1841); CoalCreek, 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 notremain uncertain and in dispute, but that continued de facto exerciseand assertion of right should be conclusive evidence of the de jureexistence of the right.

29. In Lala Hem Chand v. Lala Pearey Lal & Ors., AIR 1942PC 64, the question arose of the adverse possession where trusteehad been in possession for more than 12 years under trust which isvoid under the law, the Privy Council observed that if the right of adefendant owner is extinguished the plaintiff acquires it by adversepossession. In case the owner suffers his right to be barred by the lawof limitation, the practical effect is the extinction of his title in favour ofthe party in possession. The relevant portion is extracted hereunder:

“…. The inference from the evidence as whole is irresistiblethat it was with his knowledge and implied consent that the buildingwas consecrated as Dharmasala and used as such for charitableand religious purposes and that Lala Janaki Das, and after him,Ramchand, was in possession of the property till 1931. As forciblypointed out by the High Court in considering the merits of thecase, “during the course of more than 20 years that this buildingremained in the charge of Janaki Das, and on his death in that of

his son, Ramchand, the defendant had never once claimed theproperty as his own or objected to its being treated as dedicatedproperty.” This Board held in (’66) 11 M.I.A. 345: 7 W.R. 21: 1Suther. 676: 2 Sar. 284 (P.C.), Gunga Gobindas Mundal v. TheCollector of the Twenty Four Pergunnahs, at page 361, that if theowner whose property is encroached upon suffers his right to bebarred by the law of limitation the practical effect is the extinctionof his title in favour of the party in possession.” Section 28,Limitation Act, says:

“At the determination of the period hereby limited to any personfor instituting suit for possession of any property his right tosuch property shall be extinguished.” Lala Janaki Das andRamchand having held the property adversely for upwards of12 years on behalf of the charity for which it was dedicated, itfollows that the title to it, acquired by prescription, has becomevested 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 wouldalso have come to the conclusion that the title of the defendanthas become barred by limitation, had he not been of the viewthat Lala Janaki Das retained possession of the suit propertyas trusteefor the benefit of the author of the trust and his legalrepresentatives, and that presumably S. 10, Limitation Act,would apply to the case, though he does not specifically referto the section. For the above reasons, their Lordships hold thatthe plaintiffs have established their title to the suit property byadverse possession for upwards of 12 years before thedefendant obtained possession of it; and since the suit wasbrought in January 1933, within so short time as two years ofdispossession, the plaintiffs are entitled to recover it from thedefendant, whose title to hold it if he had any has becomeextinct by limitation, in whichever manner he may have obtainedpossession permissively or by trespass.”

(emphasis supplied)

30. In Tichborne v. Weir, (1892) 67 LT 735, it has been observedthat considering the effect of limitation is not that the right of one personis conveyed to another, but that the right is extinguished and destroyed.HAs 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 ofthe prior rightful owner; not by any statutory transfer of the estate. Inthe said case question arose for transfer of the lease formerly held byBaxter to Giraud who for over 20 years had been in possession of theland without any acknowledgment to Baxter who had equitably mortgagedthe lease to him. The question arose whether the statute transferred thelease to Giraud and he became the tenant of the landlord. In that context,the aforesaid observations have been made. It has been held what isacquired would depend upon what right person has against whom hehas prescribed and acquisition of title by adverse possession would notmore be than that. The lease is not transferred under statute but by theextinguishment of rights. The other person ripens the right. Thus, thedecision does not run counter to the various decisions which have beendiscussed above and deals with the nature of title conferred by adversepossession.31. The decision in Taylor v. Twinberrow, (1930) 2 K.B. 16 hasalso been referred to submit to the contrary. In that case, also it was acase of dispute between the tenant and sub-tenant. The Kings Benchconsidered the effect of the expiration of 12 years’ adverse possessionunder section 7 of the Act of 1833 and observed that that does confer atitle, whereas its effect is merely negative to destroy the power of thethen tenant Taylor to claim as landlord against the sub-tenant inpossession. It would not destroy the right of the freeholder, if Taylor’stenancy was determined, by the freeholder, he could eject the sub-tenant.Thus, Taylor’s right would be defeated and not that of the freeholderwho was the owner and gave the land on the tenancy to Taylor. In ouropinion, the view is in consonance with the law of adverse possession asadministered in India. As the basic principle is that if person is havinga limited right, person against him can prescribe only to acquire thatlimited right which is extinguished and not beyond that. There is seriesof decisions laying down this proposition of law as to the effect of adversepossession as against limited owner if extinguishing title of the limitedowner not that of reversion or having some other title. Thus, the decisionin Taylor v. Twinberrow (supra) does not negate the acquisition of titleby way of adverse possession but rather affirms it.

32. The operation of the statute of limitation in giving title ismerely negative; it extinguishes the right and title of the dispossessed

Aowner and leaves the occupant with title gained by the fact of possessionand 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 SocietyLtd. v. K.C. Alexander (supra) in which it has been observed that itcannot be disputed that person in possession of land in the assumedcharacter of owner and exercising peaceably the ordinary rights ofBownership has perfectly good title against all the world but the originalowner, and if the original owner does not come forward and assert histitle by the process of law within the period prescribed under the statuteof limitation applicable to the case, his right is forever extinguished andthe possessory owner acquires an absolute title. In Ram Daan (Dead)Cthrough LRs. v. Urban Improvement Trust, (2014) 8 SCC 902, thisCourt has observed thus:

“11. It is settled position of law laid down by the Privy Council inPerry v. Clissold 1907 AC 73 (PC) (AC p. 79)

“It cannot be disputed that person in possession of land in theDassumed character of owner and exercising peaceably theordinary rights of ownership has perfectly good title againstall the world but the rightful owner. And if the rightful ownerdoes not come forward and assert his title by the process oflaw within the period prescribed by the provisions of the StatuteEof Limitations applicable to the case, his right is foreverextinguished, and the possessory owner acquires an absolutetitle.”

The above statement was quoted with the approval by this Courtin Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165.FTheir Lordships at para 22 emphatically stated: (AIR p. 1175)

“22. The cases of the Judicial Committee are not binding onus but we approve of the dictum in Perry v. Clissold 1907 AC73 (PC).””

33. The decision in Fairweather v. St. Marylebone PropertyGCo. Ltd. (1962) 2 AER 288 (HL) has also been referred, to submit thatadverse possession is negative concept where the possession had beentaken against the tenant, its operation was only to bar his right againstmen in possession. As already discussed above, it was case of limitedright possessed by the tenant and sub-tenant could only perfect hisHright against the tenant who inducted him as sub-tenant prescribed against

the tenant and not against the freeholder. The decision does not runcounter to any other decision discussed and is no help to hold that plaintiffcannot take such plea or hold that no right is conferred by adversepossession. It may be negative right but an absolute one. It conferstitle as owner in case extinguishment is of the right of ownership.

34. The plaintiff’s right to raise the plea of adverse possessionhas been recognized in several decisions of the High Court also. If sucha case arises on the facts stated in the plaint and the defendant is nottaken 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 Manipur 16, Aboobuckers/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. RamanmaniDasi & Ors. AIR 1917 Cal. 469, Shiromani Gurdwara ParbhandhakCommittee, Khosakotla & Anr. v. Prem Das & Ors., AIR 1933 Lah25, Rangappa Nayakar v. Rangaswami Nayakar, AIR 1925 Mad.1005; Shaikh Alimuddin v. Shaikh Salim, 1928 IC 81 (PC).

35. In Pannalal Bhagirath Marwadi v. Bhaiyalal BindrabanPardeshi Teli, AIR 1937 Nagpur 281, it has been observed that in-between two trespassers, one who is wrongly dispossessed by the othertrespasser, can sue and recover possession. person in possession cannotbe dispossessed otherwise than in due course of law and can sue forinjunction for protecting the possession as observed in Krishna RamMahale (dead) by L.Rs v. Shobha Venkat Rao, (1989) 4 SCC 131,State of U.P. v. Maharaja Dharmander Prasad Singh, (1989) 2 SCC505.

36. In Radhamoni Debi v. The Collector of Khulna & Ors.(1900) ILR 27 Cal. 943 it was observed that to constitute possessorytitle by adverse possession, the possession required to be proved mustbe adequate in continuity in publicity, and in the extent to show for aperiod of 12 years.

37. In Somnath Burman v. S.P. Raju, (1969) 3 SCC 129, theCourt recognized the right of the plaintiff to such declaration of title andfor an injunction. Section 9 of the Specific Relief Act is in no wayinconsistent, the wrongdoer cannot resist suit on the ground that title andright are in third person. Right to sue is available to the plaintiff against

Aowners as well as others by taking the plea of adverse possession in theplaint.

38. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan& Ors., (2009) 16 SCC 517, relying on T. Anjanappa v. Somalingappa(2006) 7 SCC 570, observed that title can be based on adverse possession.BThis Court has observed thus:

“23. This Court had an occasion to examine the concept of adversepossession in T. Anjanappa v. Somalingappa, 2006 (7) SCC570.

The court observed that person who bases his title on adverseCpossession must show by clear and unequivocal evidence thathis title was hostile to the real owner and amounted to denialof his title to the property claimed. The court further observedthat: (SCC p.577, para 20)

“20…. The classical requirements of acquisition of title by adverseDpossession are that such possession in denial of the true owner’stitle must be peaceful, open and continuous. The possession mustbe open and hostile enough to be capable of being known by theparties interested in the property, though it is not necessary thatshould be evidence of the adverse possessor actually informingEthe real owner of the former’s hostile action.””

At the same time, this Court has also observed that the law ofadverse possession is harsh and Legislature may consider change inthe law as to adverse possession.39. In the light of the aforesaid discussion, when we consider theFdecision in Gurdwara Sahib v. Gram Panchayat Village Sirthala &Anr., (2014) 1 SCC 669 decided by two-Judge Bench wherein questionarose whether the plaintiff is in adverse possession of the suit land thisCourt referred to the Punjab & Haryana High Court decision onGurdwara Sahib Sannauli v. State of Punjab (2009) 154 PLR 756Gand observed that there cannot be ‘any quarrel’ to the extent that thejudgments of courts below are correct and without any blemish. Even ifthe plaintiff is found to be in adverse possession, it cannot seek adeclaration to the effect that such adverse possession has matured intoownership. The discussion made is confined to para 8 only. The sameis extracted hereunder:H

“4. In so far as the first issue is concerned, it was decided infavour of the plaintiff returning the findings that the appellant wasin adverse possession of the suit property since 13.4.1952 as thisfact had been proved by plethora of documentary evidenceproduced by the appellant. However, while deciding the secondissue, the court opined that no declaration can be sought on thebasis of adverse possession inasmuch as adverse possession canbe used as shield and not as sword. The learned Civil Judgerelied upon the judgment of the Punjab and Haryana High Courtin Gurdwara Sahib Sannuali v. State of Punjab (2009) 154 PLR756and thus, decided the issue against the plaintiff. Issue 3 wasalso, in the same vein, decided against the appellant.

8. There cannot be any quarrel to this extent that the judgmentsof the courts below are correct and without any blemish. Even ifthe plaintiff is found to be in adverse possession, it cannot seek adeclaration to the effect that such adverse possession has maturedinto ownership. Only if proceedings are filed against the appellantand the appellant is arrayed as defendant that it can use this”adverse possession as shield/defence.

(emphasis supplied)

It is apparent that the point whether the plaintiff can take the pleaof adverse possession was not contested in the aforesaid decision andnone out of the plethora of the aforesaid decisions including of the largerBench were placed for consideration before this Court. The judgment isbased upon the proposition of law not being questioned as the point wasnot disputed. There no reason is given, only observation has been recordedin one line.

40. It is also pertinent to mention that the decision of this court inGurudwara Sahib v. Gram Panchayat Village, Sirthala (supra) hasbeen relied upon in State of Uttarakhand v. Mandir Sri Laxman SidhMaharaj, (2017) 9 SCC 579. In the said case, no plea of adversepossession was taken nor issue was framed as such this Court held thatin the absence of pleading, issue and evidence of adverse possessionsuit could not have been decreed on that basis. Given the aforesaid, itwas not necessary to go into the question of whether the plaintiff couldhave taken the plea of adverse possession. Nonetheless, passing

Aobservation has been made without any discussion of the aspect that thecourt below should have seen that declaration of ownership rights overthe suit property could be granted to the plaintiff on strength of adversepossession (see: Gurudwara Sahib v. Gram Panchayat, Sirthala).The Court observed:

B“24. By no stretch of imagination, in our view, such declarationof ownership over the suit property and right of easement over awell could be granted by the trial court in the plaintiff’s favourbecause even the plaintiff did not claim title in the suit property onthe strength of “adverse possession”. Neither were there anypleadings nor any issue much less evidence to prove the adverseCpossession on land and for grant of any easementary right overthe well. The courts below should have seen that no declarationof ownership rights over the suit property could be granted to theplaintiff on the strength of “adverse possession” (see GurdwaraSahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669.DThe courts below also should have seen that courts can grantonly that relief which is claimed by the plaintiff in the plaint andsuch relief can be granted only on the pleadings but not beyond it.In other words, courts cannot travel beyond the pleadings forgranting any relief. This principle is fully applied to the facts ofEthis case against the plaintiff.”

(emphasis supplied)

41. Again in Dharampal (Dead) through LRs v. Punjab WakfBoard, (2018) 11 SCC 449, the court found the averments in counterclaimby the defendant do not constitute plea of adverse possession as theFpoint of start of adverse possession was not pleaded and Wakf Boardhas filed suit in the year 1971 as such perfecting title by adversepossession did not arise at the same time without any discussion on theaspect that whether plaintiff can take plea of adverse possession. TheCourt held that in the counterclaim the defendant cannot raise this pleaGof adverse possession. This Court at the same relied upon to observethat it was bound by the decision in Gurdwara Sahib v. Gram PanchayatVillage Sirthala (supra), and logic was applied to the counterclaim also.The Court observed:

“28. In the first place, we find that this Court in Gurdwara SahibHv. Gram Panchayat Village Sirthala, (2014) 1 SCC 669has

held in para 8 that plea of adverse possession cannot be set upby the plaintiff to claim ownership over the suit property but suchplea can be raised by the defendant by way of defence in hiswritten statement in answer to the plaintiff’s claim. We are boundby this view.

34. Applying the aforementioned principle of law to the facts ofthe case on hand, we find absolutely no merit in this plea ofDefendant 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 since1953. Such averments, in our opinion, do not constitute the plea of“adverse possession” in the light of law laid down by this Courtquoted supra.

34.2. Second, it was not pleaded as to from which date, Defendant1’s possession became adverse to the plaintiff (the Wakf Board).

34.3. Third, it was also not pleaded that when his adversepossession was completed and ripened into the full ownership inhis favour.

34.4. Fourth, it could not be so for the simple reason that theplaintiff (Wakf Board) had filed suit in the year 1971 againstDefendant 1’s father in relation to the suit land. Therefore, till theyear 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 plaintiffdid not arise.”

(emphasis supplied)

42. In State of Uttarakhand v. Mandir Shri Lakshmi SiddhMaharaj (supra) and Dharampal (dead) through LRs v. Punjab WakfBoard (supra), there is no discussion on the aspect whether the plaintiffcan later take the plea of adverse possession. It does not appear thatproposition was contested and earlier binding decisions were also notplaced for consideration of the Court. As there is no independentconsideration of the question, we have to examine mainly the decision inGurdwara Sahib v. Gram Panchayat Village Sirthala (supra).

A43. When we consider the decision rendered by Punjab & HaryanaHigh Court in Gurdwara Sahib Sannauli (supra), which has beenreferred by this Court in Gurudwara Sahib v. Gram Panchayat,Sirthala (supra), the following is the discussion made by the High Courtin the said decision:

B“10. I have heard learned Counsel for the parties and perused therecord of the appeal. I find force in the contentions raised bylearned counsel for the respondents. In Bachhaj Nahar v. NillimaMandal and Anr. J.T. 2008 (13) S.C. 255 the Hon’ble SupremeCourt has authoritatively laid down that if an argument has beengiven up or has not been raised, same cannot be taken up in theCRegular Second Appeal. It is also relevant to mention here that inBhim Singh and Ors. v. Zile Singh and Ors., (2006) 3 RCR Civil97, this Court has held that no declaration can be sought by aplaintiff about ownership based on adverse possession as suchplea is available only to defendant against the plaintiff. Similarly,Din R.S.A. No. 3909 of 2008 titled as State of Haryana v. MukeshKumar and Ors. (2009) 154 P.L.R. 753, decided on 17.03.2009this Court has also taken the same view as aforesaid in BhimSingh’s case (supra).”

There is no independent consideration. Only the decision of theEsame High Court in Bhim Singh & Ors. v. Zila Singh & Ors. AIR2006 P&H 195 has been relied upon to hold that no declaration can besought by the plaintiff based on adverse possession.

44. In Bhim Singh & Ors. (supra) the plaintiffs had filed suitfor declaration and injunction claiming ownership based on adverseFpossession. 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 Article 64 of the Limitation Act, as suit for possessionof immovable property by plaintiff, who while in possession ofGthe property had been dispossessed from such possession, whensuch suit is based on previous possession and not based on title,can be filed within 12 years from the date of dispossession. UnderArticle 65 of the Limitation Act, suit for possession of immovableproperty or any interest therein, based on title, can be filed by aHperson claiming title within 12 years. The limitation under thisArticle commences from the date when the possession of thedefendant becomes adverse to the plaintiff. In thesecircumstances, it is apparent that to contest suit for possession,filed by person on the basis of his title, plea of adversepossession can be taken by defendant who is in hostile, continuousand open possession, to the knowledge of the true owner, if sucha person has remained in possession for period of 12 years. It,thus, naturally has to be inferred that plea of adverse possessionis defence available only to defendant. This conclusion ofmine is further strengthened from the language used in Article 65,wherein, in column 3 it has been specifically mentioned: “whenthe possession of the defendant becomes adverse to the plaintiff.”Thus, perusal of the aforesaid Article 65 shows that the plea isavailable only to defendant against plaintiff. In thesecircumstances, natural inference must follow that when such aplea of adverse possession is only available to defendant, thenno declaration can be sought by plaintiff with regard to hisownership on the basis of an adverse possession.

12. I am supported by judgment of Delhi High Court in 1993 3105 PLR (Delhi Section) 70, Prem Nath Wadhawan v. Inder RaiWadhawan.

13. The following observations made in the Prem NathWadhawan’s case (supra) may be noticed:

“I have given my thoughtful consideration to the submissionsmade by the learned Counsel for the parties and have alsoperused the record. I do not find any merit in the contention ofthe learned Counsel for the plaintiff that the plaintiff has becomeabsolute owner of the suit property by virtue of adversepossession as the plea of adverse possession can be raised indefence in suit for recovery of possession but the relief fordeclaration that the plaintiff has become absolute owner, cannotbe granted on the basis of adverse possession.”

The Punjab & Haryana High Court has proceeded on the basisthat as per Article 65, the plea of adverse possession is available as adefence to defendant.

A45. Article 65 of the Act is extracted hereunder:Description of suit Period of limitationTime from which period begins to run 65.For possession of Twelve years. When the possession immovable property or of the defendant Bany interest therein becomes adverse to based on title. the plaintiff. Explanation.— For the purposes of this article— (a) where the suit is by remainderman, Creversioner (other than landlord) or devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the Dremainderman, reversioner or devisee, as the case may be, falls into possession; (b) where the suit is by Hindu or Muslim entitled Eto the possession of immovable property on the death of Hindu or Muslim female, the possession of the defendant shall be deemed to become Fadverse only when the female dies; (c) where the suit is by purchaser at sale in execution of decree when the judgment-Gdebtor was out of possession at the date of the sale, the purchaser shall be deemed to be representative of the judgment-debtor who was out of possession. 46. The conclusion reached by the High Court is based on aninferential process because of the language used in the III[rd] Column ofArticle 65. The expression is used, the limitation of 12 years runs fromthe date when the possession of the defendant becomes adverse to theplaintiff. Column No.3 of Schedule of the Act nowhere suggests thatsuit cannot be filed by the plaintiff for possession of immovable propertyor any interest therein based on title acquired by way of adversepossession. There is absolutely no bar for the perfection of title by wayof adverse possession whether person is suing as the plaintiff or beingsued as defendant. The inferential process of interpretation employedby the High Court is not at all permissible. It does not follow from thelanguage used in the statute. The large number of decisions of this Courtand various other decisions of Privy Council, High Courts and of Englishcourts which have been discussed by us and observations made inHalsbury Laws based on various decisions indicate that suit can be filedby plaintiff on the basis of title acquired by way of adverse possession oron the basis of possession under Articles 64 and 65. There is no barunder Article 65 or any of the provisions of Limitation Act, 1963 asagainst plaintiff who has perfected his title by virtue of adversepossession to sue to evict person or to protect his possession andplethora of decisions are to the effect that by virtue of extinguishment oftitle of the owner, the person in possession acquires absolute title and ifactual owner dispossesses another person after extinguishment of histitle, he can be evicted by such person by filing of suit under Article 65of the Act. Thus, the decision of Gurudwara Sahib v. Gram Panchayat,Sirthala (supra) and of the Punjab & Haryana High Court cannot besaid to be laying down the correct law. More so because of variousdecisions of this Court to the contrary.

47. In Gurudwara Sahib v. Gram Panchayat, Sirthala (supra)proposition was not disputed. decision based upon concession cannotbe treated as precedent as has been held by this Court in State ofRajasthan v. Mahaveer Oil Industries, (1999) 4 SCC 357, Directorof Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638, Uptron IndiaLimited v. Shammi Bhan (1998) 6 SCC 538. Though, it appears thatthere was some expression of opinion since the Court observed therecannot be any quarrel that plea of adverse possession cannot be takenby plaintiff. The fact remains that the proposition was not disputed andno argument to the contrary had been raised, as such there was no

Adecision on the aforesaid aspect only an observation was made as toproposition of law, which is palpably incorrect.

48. The statute does not define adverse possession, it is commonlaw concept, the period of which has been prescribed statutorily underthe law of limitation Article 65 as 12 years. Law of limitation does notBdefine the concept of adverse possession nor anywhere contains aprovision that the plaintiff cannot sue based on adverse possession. Itonly deals with limitation to sue and extinguishment of rights. There maybe case where person who has perfected his title by virtue of adversepossession is sought to be ousted or has been dispossessed by forcefulentry by the owner or by some other person, his right to obtain possessionCcan be resisted only when the person who is seeking to protect hispossession, is able to show that he has also perfected his title by adversepossession for requisite period against such plaintiff.

49. Under Article 64 also suit can be filed based on the possessoryDtitle. Law never intends person who has perfected title to be deprivedof filing suit under Article 65 to recover possession and to render himremediless. In case of infringement of any other right attracting anyother Article such as in case the land is sold away by the owner after theextinguishment of his title, the suit can be filed by person who hasperfected his title by adverse possession to question alienation and attemptEof dispossession.50. Law of adverse possession does not qualify only defendantfor the acquisition of title by way of adverse possession, it may beperfected by person who is filing suit. It only restricts right of theowner to recover possession before the period of limitation fixed for theFextinction of his rights expires. Once right is extinguished another personacquires prescriptive right which cannot be defeated by re-entry by theowner or subsequent acknowledgment of his rights. In such case suitcan be filed by person whose right is sought to be defeated.

51. In India, the law respect possession, persons are not permittedGto take law in their hands and dispossess person in possession by forceas observed in Late Yashwant Singh (supra) by this Court. The suitcan be filed only based on the possessory title for appropriate reliefunder the Specific Relief Act by person in possession. Articles 64 and65 both are attracted in such cases as held by this Court in Desh Raj v.HBhagat Ram (supra). In Nair Service Society (supra) held that if rightful

owner does not commence an action to take possession within the periodof limitation, his rights are lost and person in possession acquires anabsolute title.

52. In Sarangadeva Periya Matam v. Ramaswami Gounder,(supra), the plaintiff’s suit for recovery of possession was decreed againstMath based on the perfection of the title by way of adverse possession,he could not have been dispossessed by Math. The Court held thatunder Article 144 read with Section 28 of the Limitation Act, 1908, thetitle of Math extinguished in 1927 and the plaintiff acquired title in 1927.In 1950, he delivered possession, but such delivery of possession did nottransfer any title to Math. The suit filed in 1954 was held to be withintime and decreed.

53. There is the acquisition of title in favour of plaintiff though it isnegative conferral of right on extinguishment of the right of an owner ofthe property. The right ripened by prescription by his adverse possessionis absolute and on dispossession, he can sue based on ‘title’ as envisagedin the opening part under Article 65 of Act. Under Article 65, the suitcan be filed based on the title for recovery of possession within 12 yearsof the start of adverse possession, if any, set up by the defendant.Otherwise right to recover possession based on the title is absoluteirrespective of limitation in the absence of adverse possession by thedefendant for 12 years. The possession as trespasser is not adverse norlong possession is synonym with adverse possession.

54. In Article 65 in the opening part suit “for possession ofimmovable property or any interest therein based on title” has been used.Expression “title” would include the title acquired by the plaintiff by wayof adverse possession. The title is perfected by adverse possession hasbeen held in catena of decisions.

55. We are not inclined to accept the submission that there is noconferral of right by adverse possession. Section 27 of Limitation Act,1963 provides for extinguishment of right on the lapse of limitation fixedto institute suit for possession of any property, the right to such propertyshall stand extinguished. The concept of adverse possession as evolvedgoes beyond it on completion of period and extinguishment of right confersthe same right on the possessor, which has been extinguished and notmore than that. For person to sue for possession would indicate thatright has accrued to him in presenti to obtain it, not in futuro. Any

Aproperty 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. Asownership is also of different kinds of viz. sole ownership, contingentownership, corporeal ownership, and legal equitable ownership. LimitedBownership or limited right to property may be enjoyed by holder. Whatcan be prescribable against is limited to the rights of the holder. Possessionconfers enforceable right under Section 6 of the Specific Relief Act. Ithas to be looked into what kind of possession is enjoyed viz. de facto i.e.,actual, ‘de jure possession’, constructive possession, concurrentpossession over small portion of the property. In case the owner is inCsymbolic possession, there is no dispossession, there can be formal,exclusive or joint possession. The joint possessor/co-owner possessionis not presumed to be adverse. Personal law also plays role to construenature of possession.

57. The adverse possession requires all the three classicDrequirements to co-exist at the same time, namely, nec-vi i.e. adequatein continuity, nec-clam i.e., adequate in publicity and nec-precario i.e.adverse to competitor, in denial of title and his knowledge. Visible,notorious and peaceful so that if the owner does not take care to knownotorious facts, knowledge is attributed to him on the basis that but forEdue diligence he would have known it. Adverse possession cannot bedecreed on title which is not pleaded. Animus possidendi under hostilecolour of title is required. Trespasser’s long possession is not synonymwith adverse possession. Trespasser’s possession is construed to be onbehalf of the owner, the casual user does not constitute adversepossession. The owner can take possession from trespasser at anyFpoint in time. Possessor looks after the property, protects it and in caseof agricultural property by and the large concept is that actual tiller shouldown the land who works by dint of his hard labour and makes the landcultivable. The legislature in various States confers rights based onpossession.G

58. Adverse possession is heritable and there can be tacking ofadverse possession by two or more persons as the right is transmissibleone. In our opinion, it confers perfected right which cannot be defeatedon reentry except as provided in Article 65 itself. Tacking is based onthe fulfillment of certain conditions, tacking maybe by possession by theHpurchaser, legatee or assignee, etc. so as to constitute continuity of

possession, that person must be claiming through whom it is sought to betacked, and would depend on the identity of the same property under thesame right. Two distinct trespassers cannot tack their possession toconstitute conferral of right by adverse possession for the prescribedperiod.

59. We hold that person in possession cannot be ousted by anotherperson except by due procedure of law and once 12 years’ period ofadverse possession is over, even owner’s right to eject him is lost andthe possessory owner acquires right, title and interest possessed by theoutgoing person/owner as the case may be against whom he hasprescribed. In our opinion, consequence is that once the right, title orinterest is acquired it can be used as sword by the plaintiff as well asa shield by the defendant within ken of Article 65 of the Act and anyperson who has perfected title by way of adverse possession, can file asuit for restoration of possession in case of dispossession. In case ofdispossession by another person by taking law in his hand possessorysuit can be maintained under Article 64, even before the ripening of titleby way of adverse possession. By perfection of title on extinguishmentof the owner’s title, person cannot be remediless. In case he has beendispossessed by the owner after having lost the right by adversepossession, he can be evicted by the plaintiff by taking the plea of adversepossession. Similarly, any other person who might have dispossessedthe plaintiff having perfected title by way of adverse possession canalso be evicted until and unless such other person has perfected titleagainst such plaintiff by adverse possession. Similarly, under otherArticles also in case of infringement of any of his rights, plaintiff whohas perfected the title by adverse possession, can sue and maintain asuit.

60. When we consider the law of adverse possession as hasdeveloped vis-à-vis to property dedicated to public use, courts have beenloath to confer the right by adverse possession. There are instanceswhen such properties are encroached upon and then plea of adversepossession is raised. In Such cases, on the land reserved for publicutility, it is desirable that rights should not accrue. The law of adversepossession may cause harsh consequences, hence, we are constrainedto observe that it would be advisable that concerning such propertiesdedicated to public cause, it is made clear in the statute of limitation thatno rights can accrue by adverse possession.

A61. Resultantly, we hold that decisions of Gurudwara Sahab v.Gram Panchayat Village Sirthala (supra) and decision relying on it inState 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 herebyoverruled. We hold that plea of acquisition of title by adverse possessionBcan be taken by plaintiff under Article 65 of the Limitation Act and thereis no bar under the Limitation Act, 1963 to sue on aforesaid basis in caseof infringement of any rights of plaintiff.

62. Let the matters be placed for consideration on merits beforethe appropriate Bench.C

Divya Pandey

Directions Issued.