RAVINDER KAUR GREWAL & ORS. v. MANJIT KAUR & ORS.

[ARUN MISHRA, J.]

28Copy pinpoint28. In an article published in Harvard Law Review on “Title by A Adverse Possession” by Henry W. Ballantine, as to the question of adverse possession and acquisition of title it has been observed on strength of various decisions that adverse possession vests the possessor with the complete title as effectually as if there had been a conveyance by the former owner. As held in Toltec Ranch Co. v. Cook, 191 U.S. 532, B 542 (1903). But the title is independent, not derivative, and “relates back” to the inception of the adverse possession, as observed. (see Field v. Peoples, 180 Ill. 376, 383, 54 N.E. 304 (1899); Bellefontaine Co. v. Niedringhaus, 181 Ill. 426, 55 N.E. 184 (1899). Cf. La Salle v. Sanitary District, 260 Ill. 423, 429, 103 N.E. 175 (1913); AMES, LECTURES C ON LEGAL HIST. 197; 3 ANGLO-AMERICAN ESSAYS, 567). The adverse possessor does not derive his title from the former owner, but from a new source of title, his possession. The “investitive fact” is the disseisin and exercise of possession as observed in Camp v. Camp, 5 Conn. 291 (1824); Price v. Lyon, 14 Conn. Conn. 279, 290 (1841); Coal Creek, etc. Co. v. East Tenn. I. & C. Co., 105 Tenn. 563; 59 S.W. 634, D 636 (1900). It has also been observed that titles to property should not remain uncertain and in dispute, but that continued de facto exercise and assertion of a right should be conclusive evidence of the de jure existence of the right. E

29Copy pinpoint29. In Lala Hem Chand v. Lala Pearey Lal & Ors., AIR 1942 PC 64, the question arose of the adverse possession where a trustee had been in possession for more than 12 years under a trust which is void under the law, the Privy Council observed that if the right of a defendant owner is extinguished the plaintiff acquires it by adverse possession. In case the owner suffers his right to be barred by the law of limitation, the practical effect is the extinction of his title in favour of the party in possession. The relevant portion is extracted hereunder: “…. The inference from the evidence as a whole is irresistible that it was with his knowledge and implied consent that the building was consecrated as a Dharmasala and used as such for charitable and religious purposes and that Lala Janaki Das, and after him, Ramchand, was in possession of the property till 1931. As forcibly pointed out by the High Court in considering the merits of the case, “during the course of more than 20 years that this building remained in the charge of Janaki Das, and on his death in that of H

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A his son, Ramchand, the defendant had never once claimed the property as his own or objected to its being treated as dedicated property.” This Board held in (’66) 11 M.I.A. 345: 7 W.R. 21: 1 Suther. 676: 2 Sar. 284 (P.C.), Gunga Gobindas Mundal v. The Collector of the Twenty Four Pergunnahs, at page 361, that if the owner whose property is encroached upon suffers his right to be barred by the law of limitation the practical effect is the extinction of his title in favour of the party in possession.” Section 28, Limitation Act, says: “At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished.” Lala Janaki Das and Ramchand having held the property adversely for upwards of 12 years on behalf of the charity for which it was dedicated, it follows that the title to it, acquired by prescription, has become vested in the charity and that of the defendant, if he had any, has become extinguished by operation of S. 28, Limitation Act. Their Lordships have no doubt that the Subordinate Judge would also have come to the conclusion that the title of the defendant has become barred by limitation, had he not been of the view that Lala Janaki Das retained possession of the suit property as trustee for the benefit of the author of the trust and his legal representatives, and that presumably S. 10, Limitation Act, would apply to the case, though he does not specifically refer to the section. For the above reasons, their Lordships hold that the plaintiffs have established their title to the suit property by adverse possession for upwards of 12 years before the defendant obtained possession of it; and since the suit was brought in January 1933, within so short a time as two years of dispossession, the plaintiffs are entitled to recover it from the defendant, whose title to hold it if he had any has become extinct by limitation, in whichever manner he may have obtained possession permissively or by trespass.” G (emphasis supplied)

30Copy pinpoint30. In Tichborne v. Weir, (1892) 67 LT 735, it has been observed that considering the effect of limitation is not that the right of one person is conveyed to another, but that the right is extinguished and destroyed. H As the mode of conveying the title is not prescribed in the Act, the Act

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[ARUN MISHRA, J.]

does not confer it. But at the same time, it has been observed that yet his A “title under the Act is acquired” solely by the extinction of the right of the prior rightful owner; not by any statutory transfer of the estate. In the said case question arose for transfer of the lease formerly held by Baxter to Giraud who for over 20 years had been in possession of the land without any acknowledgment to Baxter who had equitably mortgaged the lease to him. The question arose whether the statute transferred the lease to Giraud and he became the tenant of the landlord. In that context, the aforesaid observations have been made. It has been held what is acquired would depend upon what right person has against whom he has prescribed and acquisition of title by adverse possession would not more be than that. The lease is not transferred under a statute but by the extinguishment of rights. The other person ripens the right. Thus, the decision does not run counter to the various decisions which have been discussed above and deals with the nature of title conferred by adverse possession.

31Copy pinpoint31. The decision in Taylor v. Twinberrow, (1930) 2 K.B. 16 has also been referred to submit to the contrary. In that case, also it was a case of a dispute between the tenant and sub-tenant. The Kings Bench considered the effect of the expiration of 12 years’ adverse possession under section 7 of the Act of 1833 and observed that that does confer a title, whereas its effect is merely negative to destroy the power of the then tenant Taylor to claim as a landlord against the sub-tenant in possession. It would not destroy the right of the freeholder, if Taylor’s tenancy was determined, by the freeholder, he could eject the sub-tenant. Thus, Taylor’s right would be defeated and not that of the freeholder who was the owner and gave the land on the tenancy to Taylor. In our opinion, the view is in consonance with the law of adverse possession as administered in India. As the basic principle is that if a person is having a limited right, a person against him can prescribe only to acquire that limited right which is extinguished and not beyond that. There is a series of decisions laying down this proposition of law as to the effect of adverse possession as against limited owner if extinguishing title of the limited owner not that of reversion or having some other title. Thus, the decision in Taylor v. Twinberrow (supra) does not negate the acquisition of title by way of adverse possession but rather affirms it.

32Copy pinpoint32. The operation of the statute of limitation in giving a title is merely negative; it extinguishes the right and title of the dispossessed H

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A owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him. Perry v. Clissold (1907) AC 73 has been referred to in Nair Service Society Ltd. v. K.C. Alexander (supra) in which it has been observed that it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of B ownership has a perfectly good title against all the world but the original owner, and if the original owner does not come forward and assert his title by the process of law within the period prescribed under the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. In Ram Daan (Dead) C through LRs. v. Urban Improvement Trust, (2014) 8 SCC 902, this Court has observed thus: “11. It is settled position of law laid down by the Privy Council in Perry v. Clissold 1907 AC 73 (PC) (AC p. 79) “It cannot be disputed that a person in possession of land in the D assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute E of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.” The above statement was quoted with the approval by this Court in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165. F Their Lordships at para 22 emphatically stated: (AIR p. 1175) “22. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold 1907 AC 73 (PC).””

33Copy pinpoint33. The decision in Fairweather v. St. Marylebone Property G Co. Ltd. (1962) 2 AER 288 (HL) has also been referred, to submit that adverse possession is a negative concept where the possession had been taken against the tenant, its operation was only to bar his right against men in possession. As already discussed above, it was a case of limited right possessed by the tenant and a sub-tenant could only perfect his H right against the tenant who inducted him as sub-tenant prescribed against

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[ARUN MISHRA, J.]

the tenant and not against the freeholder. The decision does not run counter to any other decision discussed and is no help to hold that plaintiff cannot take such a plea or hold that no right is conferred by adverse possession. It may be a negative right but an absolute one. It confers title as owner in case extinguishment is of the right of ownership.

34Copy pinpoint34. The plaintiff’s right to raise the plea of adverse possession has been recognized in several decisions of the High Court also. If such a case arises on the facts stated in the plaint and the defendant is not taken by surprise as held in Nepen Bala Debi v. Siti Kanta Banerjee, (1910) 8 Ind Cas 41 (DB) (Cal), Ngasepam Ibotombi Singh v. Wahengbam Ibohal Singh & Anr., AIR 1960 Manipur 16, Aboobucker C s/o Shakhi Mahomed Laloo v. Sahibkhatoon, AIR 1949 Sindh 12, Bata Krista Pramanick v. Shebaits of Thakur Jogendra Nath Maity & Ors., AIR 1919 Cal. 339, Ram Chandra Sil & Ors. v. Ramanmani Dasi & Ors. AIR 1917 Cal. 469, Shiromani Gurdwara Parbhandhak Committee, Khosakotla & Anr. v. Prem Das & Ors., AIR 1933 Lah 25, Rangappa Nayakar v. Rangaswami Nayakar, AIR 1925 Mad. D 1005; Shaikh Alimuddin v. Shaikh Salim, 1928 IC 81 (PC).

35Copy pinpoint35. In Pannalal Bhagirath Marwadi v. Bhaiyalal Bindraban Pardeshi Teli, AIR 1937 Nagpur 281, it has been observed that in- between two trespassers, one who is wrongly dispossessed by the other trespasser, can sue and recover possession. A person in possession cannot E be dispossessed otherwise than in due course of law and can sue for injunction for protecting the possession as observed in Krishna Ram Mahale (dead) by L.Rs v. Shobha Venkat Rao, (1989) 4 SCC 131, State of U.P. v. Maharaja Dharmander Prasad Singh, (1989) 2 SCC

36Copy pinpoint36. In Radhamoni Debi v. The Collector of Khulna & Ors. (1900) ILR 27 Cal. 943 it was observed that to constitute a possessory title by adverse possession, the possession required to be proved must be adequate in continuity in publicity, and in the extent to show for a period of 12 years. G

37Copy pinpoint37. In Somnath Burman v. S.P. Raju, (1969) 3 SCC 129, the Court recognized the right of the plaintiff to such declaration of title and for an injunction. Section 9 of the Specific Relief Act is in no way inconsistent, the wrongdoer cannot resist suit on the ground that title and right are in a third person. Right to sue is available to the plaintiff against H

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A owners as well as others by taking the plea of adverse possession in the plaint.

38Copy pinpoint38. 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. B This Court has observed thus: “23. This Court had an occasion to examine the concept of adverse possession in T. Anjanappa v. Somalingappa, 2006 (7) SCC 570. The court observed that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that: (SCC p.577, para 20) “20…. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.”” At the same time, this Court has also observed that the law of adverse possession is harsh and Legislature may consider a change in the law as to adverse possession.

39Copy pinpoint39. In the light of the aforesaid discussion, when we consider the decision in Gurdwara Sahib v. Gram Panchayat Village Sirthala & Anr., (2014) 1 SCC 669 decided by two-Judge Bench wherein a question arose whether the plaintiff is in adverse possession of the suit land this Court referred to the Punjab & Haryana High Court decision on Gurdwara Sahib Sannauli v. State of Punjab (2009) 154 PLR 756 G and observed that there cannot be ‘any quarrel’ to the extent that the judgments of courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. The discussion made is confined to para 8 only. The same H is extracted hereunder:

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[ARUN MISHRA, J.]

“4. In so far as the first issue is concerned, it was decided in favour of the plaintiff returning the findings that the appellant was in adverse possession of the suit property since 13.4.1952 as this fact had been proved by a plethora of documentary evidence produced by the appellant. However, while deciding the second issue, the court opined that no declaration can be sought on the basis of adverse possession inasmuch as adverse possession can be used as a shield and not as a sword. The learned Civil Judge relied upon the judgment of the Punjab and Haryana High Court in Gurdwara Sahib Sannuali v. State of Punjab (2009) 154 PLR 756 and thus, decided the issue against the plaintiff. Issue 3 was also, in the same vein, decided against the appellant.

8. There cannot be any quarrel to this extent that the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.” (emphasis supplied) E It is apparent that the point whether the plaintiff can take the plea of adverse possession was not contested in the aforesaid decision and none out of the plethora of the aforesaid decisions including of the larger Bench were placed for consideration before this Court. The judgment is based upon the proposition of law not being questioned as the point was not disputed. There no reason is given, only observation has been recorded in one line.

40Copy pinpoint40. It is also pertinent to mention that the decision of this court in Gurudwara Sahib v. Gram Panchayat Village, Sirthala (supra) has been relied upon in State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579. In the said case, no plea of adverse possession was taken nor issue was framed as such this Court held that in the absence of pleading, issue and evidence of adverse possession suit could not have been decreed on that basis. Given the aforesaid, it was not necessary to go into the question of whether the plaintiff could have taken the plea of adverse possession. Nonetheless, a passing H

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A observation has been made without any discussion of the aspect that the court below should have seen that declaration of ownership rights over the suit property could be granted to the plaintiff on strength of adverse possession (see: Gurudwara Sahib v. Gram Panchayat, Sirthala). The Court observed: B “24. By no stretch of imagination, in our view, such a declaration of ownership over the suit property and right of easement over a well could be granted by the trial court in the plaintiff’s favour because even the plaintiff did not claim title in the suit property on the strength of “adverse possession”. Neither were there any pleadings nor any issue much less evidence to prove the adverse C possession on land and for grant of any easementary right over the well. The courts below should have seen that no declaration of ownership rights over the suit property could be granted to the plaintiff on the strength of “adverse possession” (see Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669. D The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief. This principle is fully applied to the facts of this case against the plaintiff.” (emphasis supplied)

41Copy pinpoint41. Again in Dharampal (Dead) through LRs v. Punjab Wakf Board, (2018) 11 SCC 449, the court found the averments in counterclaim by the defendant do not constitute plea of adverse possession as the point of start of adverse possession was not pleaded and Wakf Board has filed a suit in the year 1971 as such perfecting title by adverse possession did not arise at the same time without any discussion on the aspect that whether plaintiff can take plea of adverse possession. The Court held that in the counterclaim the defendant cannot raise this plea of adverse possession. This Court at the same relied upon to observe that it was bound by the decision in Gurdwara Sahib v. Gram Panchayat Village Sirthala (supra), and logic was applied to the counterclaim also. The Court observed: “28. In the first place, we find that this Court in Gurdwara Sahib H v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 has

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held in para 8 that a plea of adverse possession cannot be set up by the plaintiff to claim ownership over the suit property but such plea can be raised by the defendant by way of defence in his written statement in answer to the plaintiff’s claim. We are bound by this view.

34. Applying the aforementioned principle of law to the facts of the case on hand, we find absolutely no merit in this plea of Defendant 1 for the following reasons: 34.1. First, Defendant 1 has only averred in his plaint (counterclaim) that he, through his father, was in possession of the suit land since

1953. Such averments, in our opinion, do not constitute the plea of C “adverse possession” in the light of law laid down by this Court quoted supra. 34.2. Second, it was not pleaded as to from which date, Defendant 1’s possession became adverse to the plaintiff (the Wakf Board). D 34.3. Third, it was also not pleaded that when his adverse possession was completed and ripened into the full ownership in his favour. 34.4. Fourth, it could not be so for the simple reason that the plaintiff (Wakf Board) had filed a suit in the year 1971 against E Defendant 1’s father in relation to the suit land. Therefore, till the year 1971, the question of Defendant 1 perfecting his title by “adverse possession” qua the plaintiff (Wakf Board) did not arise. The plaintiff then filed present suit in the year 1991 and, therefore, again the question of perfecting the title up to 1991 qua the plaintiff F did not arise.” (emphasis supplied)

42Copy pinpoint42. In State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf G Board (supra), there is no discussion on the aspect whether the plaintiff can later take the plea of adverse possession. It does not appear that proposition was contested and earlier binding decisions were also not placed for consideration of the Court. As there is no independent consideration of the question, we have to examine mainly the decision in Gurdwara Sahib v. Gram Panchayat Village Sirthala (supra). H

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43Copy pinpoint43. When we consider the decision rendered by Punjab & Haryana High Court in Gurdwara Sahib Sannauli (supra), which has been referred by this Court in Gurudwara Sahib v. Gram Panchayat, Sirthala (supra), the following is the discussion made by the High Court in the said decision: B “10. I have heard learned Counsel for the parties and perused the record of the appeal. I find force in the contentions raised by learned counsel for the respondents. In Bachhaj Nahar v. Nillima Mandal and Anr. J.T. 2008 (13) S.C. 255 the Hon’ble Supreme Court has authoritatively laid down that if an argument has been given up or has not been raised, same cannot be taken up in the C Regular Second Appeal. It is also relevant to mention here that in Bhim Singh and Ors. v. Zile Singh and Ors., (2006) 3 RCR Civil 97, this Court has held that no declaration can be sought by a plaintiff about ownership based on adverse possession as such plea is available only to a defendant against the plaintiff. Similarly, D in R.S.A. No. 3909 of 2008 titled as State of Haryana v. Mukesh Kumar and Ors. (2009) 154 P.L.R. 753, decided on 17.03.2009 this Court has also taken the same view as aforesaid in Bhim Singh’s case (supra).” There is no independent consideration. Only the decision of the same High Court in Bhim Singh & Ors. v. Zila Singh & Ors. AIR 2006 P&H 195 has been relied upon to hold that no declaration can be sought by the plaintiff based on adverse possession.

44Copy pinpoint44. In Bhim Singh & Ors. (supra) the plaintiffs had filed a suit for declaration and injunction claiming ownership based on adverse possession. Defendants contended that plaintiffs were not in possession. The Punjab & Haryana High Court in Bhim Singh & Ors. v. Zila Singh & Ors. (supra) has assigned the reasons and observed thus: “11. Under Article 64 of the Limitation Act, as suit for possession of immovable property by a plaintiff, who while in possession of the property had been dispossessed from such possession, when such suit is based on previous possession and not based on title, can be filed within 12 years from the date of dispossession. Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein, based on title, can be filed by a H person claiming title within 12 years. The limitation under this

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Article commences from the date when the possession of the A defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such B a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of adverse possession is a defence available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein, in column 3 it has been specifically mentioned: “when the possession of the defendant becomes adverse to the plaintiff.” C Thus, a perusal of the aforesaid Article 65 shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his D ownership on the basis of an adverse possession.

12. I am supported by a judgment of Delhi High Court in 1993 3 105 PLR (Delhi Section) 70, Prem Nath Wadhawan v. Inder Rai Wadhawan. E

13. The following observations made in the Prem Nath Wadhawan’s case (supra) may be noticed: “I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and have also perused the record. I do not find any merit in the contention of F the learned Counsel for the plaintiff that the plaintiff has become absolute owner of the suit property by virtue of adverse possession as the plea of adverse possession can be raised in defence in a suit for recovery of possession but the relief for declaration that the plaintiff has become absolute owner, cannot be granted on the basis of adverse possession.” G

(emphasis supplied) The Punjab & Haryana High Court has proceeded on the basis that as per Article 65, the plea of adverse possession is available as a defence to a defendant. H

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45Copy pinpoint45. Article 65 of the Act is extracted hereunder: Description of suit Period of limitation Time from which period begins to run

65. For possession of Twelve years. When the possession immovable property or of the defendant B any interest therein becomes adverse to based on title. the plaintiff.

Explanation.— For the purposes of this article—

(a) where the suit is by a remainderman, a C reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;

(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;

(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment- G debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. H

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46Copy pinpoint46. The conclusion reached by the High Court is based on an inferential process because of the language used in the IIIrd Column of Article 65. The expression is used, the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff. Column No.3 of Schedule of the Act nowhere suggests that suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based on title acquired by way of adverse possession. There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant. The inferential process of interpretation employed by the High Court is not at all permissible. It does not follow from the language used in the statute. The large number of decisions of this Court C and various other decisions of Privy Council, High Courts and of English courts which have been discussed by us and observations made in Halsbury Laws based on various decisions indicate that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act. Thus, the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) and of the Punjab & Haryana High Court cannot be said to be laying down the correct law. More so because of various decisions of this Court to the contrary. F

47Copy pinpoint47. In Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) proposition was not disputed. A decision based upon concession cannot be treated as precedent as has been held by this Court in State of Rajasthan v. Mahaveer Oil Industries, (1999) 4 SCC 357, Director of Settlements, A.P. v. M.R. Apparao, (2002) 4 SCC 638, Uptron India G Limited v. Shammi Bhan (1998) 6 SCC 538. Though, it appears that there was some expression of opinion since the Court observed there cannot be any quarrel that plea of adverse possession cannot be taken by a plaintiff. The fact remains that the proposition was not disputed and no argument to the contrary had been raised, as such there was no H

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A decision on the aforesaid aspect only an observation was made as to proposition of law, which is palpably incorrect.

48Copy pinpoint48. The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation Article 65 as 12 years. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for requisite period against such a plaintiff.

49Copy pinpoint49. Under Article 64 also suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless. In case of infringement of any other right attracting any other Article such as in case the land is sold away by the owner after the extinguishment of his title, the suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession.

50Copy pinpoint50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated.

51Copy pinpoint51. In India, the law respect possession, persons are not permitted to take law in their hands and dispossess a person in possession by force as observed in Late Yashwant Singh (supra) by this Court. The suit can be filed only based on the possessory title for appropriate relief under the Specific Relief Act by a person in possession. Articles 64 and 65 both are attracted in such cases as held by this Court in Desh Raj v. H Bhagat Ram (supra). In Nair Service Society (supra) held that if rightful

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

52Copy pinpoint52. In Sarangadeva Periya Matam v. Ramaswami Gounder, (supra), the plaintiff’s suit for recovery of possession was decreed against Math based on the perfection of the title by way of adverse possession, he could not have been dispossessed by Math. The Court held that under Article 144 read with Section 28 of the Limitation Act, 1908, the title of Math extinguished in 1927 and the plaintiff acquired title in 1927. In 1950, he delivered possession, but such delivery of possession did not transfer any title to Math. The suit filed in 1954 was held to be within time and decreed.

53Copy pinpoint53. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on ‘title’ as envisaged in the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant. Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. The possession as trespasser is not adverse nor long possession is synonym with adverse possession.

54Copy pinpoint54. In Article 65 in the opening part a suit “for possession of immovable property or any interest therein based on title” has been used. Expression “title” would include the title acquired by the plaintiff by way of adverse possession. The title is perfected by adverse possession has been held in a catena of decisions.

55Copy pinpoint55. We are not inclined to accept the submission that there is no conferral of right by adverse possession. Section 27 of Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that. For a person to sue for possession would indicate that right has accrued to him in presenti to obtain it, not in futuro. Any H

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A property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property.

56Copy pinpoint56. Possession is the root of title and is right like the property. As ownership is also of different kinds of viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable ownership. Limited B ownership or limited right to property may be enjoyed by a holder. What can be prescribable against is limited to the rights of the holder. Possession confers enforceable right under Section 6 of the Specific Relief Act. It has to be looked into what kind of possession is enjoyed viz. de facto i.e., actual, ‘de jure possession’, constructive possession, concurrent possession over a small portion of the property. In case the owner is in symbolic possession, there is no dispossession, there can be formal, exclusive or joint possession. The joint possessor/co-owner possession is not presumed to be adverse. Personal law also plays a role to construe nature of possession.

57Copy pinpoint57. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec-vi i.e. adequate in continuity, nec-clam i.e., adequate in publicity and nec-precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonym with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.

58Copy pinpoint58. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on reentry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the H purchaser, legatee or assignee, etc. so as to constitute continuity of

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[ARUN MISHRA, J.]

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

59Copy pinpoint59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. F

60Copy pinpoint60. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public G utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession. H

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61Copy pinpoint61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession B can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff.

62Copy pinpoint62. Let the matters be placed for consideration on merits before the appropriate Bench. C

Divya Pandey Directions Issued.