Supreme Court on Adverse Possession

A 3-judge bench of the Supreme Court, consisting of Justice Arun Mishra, Justice S. Abdul Nazeer and Justice M.R.Shah, in the judgment of the case- Ravinder Kaur Grewal & Others v. Manjit Kaur & others and two other cases delivered on August 7, 2019, has ruled that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, !963 to maintain a suit on aforesaid basis in case of infringement of any rights of a plaintiff.

While pronouncing this interpretation of law, the Apex-Court has overruled its decisions in the cases Gurudwara Sahab v. Gram Panchayat Village Sirthala - (2014)  SCC 669 , State of Uttrakhand v. Mandir Shri Lakshmi Siddh Maharaj – (207) 9 SCC 579 and Dharampal (dead) through LRs v. Punjab Wakf Board – (2018) 11 SCC 449 , holding that these judgments “ cannot be said to be laying down the law correctly”.

The question of law involved in these cases is very significant, as to whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of the Limitation Act, 1963, for declaration of title and for a permanent injunction seeking protection of his possession thereby restraining the defendant from interfering in the possession or for restoration of possession in case of illegal dispossession by a defendant whose title has been extinguished by virtue of the plaintiff remaining in the adverse possession or in case of dispossession by some other person?

In other words, whether Article 65 of the Act only enables a person to set up a plea of adverse possession, as a shield as a defendant and such a plea cannot be used as a sword by a plaintiff to protect the possession of immovable property or to recover it in case of dispossession. Whether he is remediless in such a case?

In case a person, has perfected his title based on adverse possession and the property is sold by the owner after the extinguishment of his title, what is the remedy of a person to avoid sale and interference in possession or for its restoration in case of dispossession?

The Supreme Court has pointed out that historically, is a pretty old –about 4thousand years’ old concept of law. It is useful, but often criticized concept on the ground that it protects and confers rights on wrongdoers. 

Under Common Law, the best evidence of ownership was possession. The adverse possession remained as a part of the law and continue to exist. The concept thus, allows the society as a whole to benefit from the land being held adversely but allows a sufficient period for the “true owner” to recover the land. The bundle of ingredients constitutes adverse possession.

In India, the law respects possession. Persons are not permitted to take law in their hands and dispossess a person in possession by force as observed in the decision- Lallu Yashwant Singh (dead) v. Rao Jagdish Singh & Others – AIR 1968 SC 620- by the 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. Both Articles 64 and 65 are attracted in such cases - Deshraj v. Bhagat Ram- (2007) 9 SCC 641.In the decision of the case of Nair Service Society v. K.C. Alexander – AIR 1968 SC 1165, the Court has held that if rightful owner does not commence an action to take possession within the period of limitation of 12 years, his rights are lost and the person in possession acquires an absolute title.

The right ripened by prescription by plaintiff’s adverse possession is absolute and on dispossession, he can sue based on “title” as envisaged in the opening part under Article 65 of the Act. Under this Article, 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 for12 years. The possession as a trespasser is not adverse nor long possession is synonym with adverse possession.

In the article 65 in the opening part (the phrase) 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 catena of decisions.

The Court has said that it is not inclined to accept the submission that there is no conferral of right by adverse possession. Section 27 of the Limitation Act provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that.

For a person to sue for possession would indicate that right has accrued to him in presenti to obtain it, not in futuro. Any property in section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property.

Possession is the root of the title and is right like the property. What can be prescribed 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 what kind of possession is enjoyed. In case if the owner is in symbolic possession, there is no dispossession, there can be formal, exclusive or joint possession. These possessions are not presumed to be adverse. Personal law also plays a role to construe nature of possession.

The adverse possession requires all the three classic requirements to co-exist at the same time; adequate in continuity , adequate in publicity and adverse to a competitor, in denial of title and his knowledge. Adverse possession cannot be decreed on a title, which is not pleaded. 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 right based on possession. 

Adverse possession is heritable. The Supreme Court has held 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 the owner’s right to eject him is lost.

In the Apex-Court’s view 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.

The Court has made it clear that in the case of properties dedicated to public cause, according to the statute of limitation, no rights can accrue by adverse possession.

After answering the question of law, the Supreme Court has directed that these cases be placed before the appropriate Bench for consideration on merits.


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R.S.Agrawal Online
on 21 August 2019
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