Plea of Title through Adverse possession can be used as a sword as well as a shield

Aashray Chaudhary | Symbiosis Law School, Hyderabad | 29th December 2019

RAVINDER KAUR GREWAL & ORS.  VERSUS MANJIT KAUR & ORS.

Topics

1. Property law
2. Limitations act

Context and issues of the case

• Adverse possession is a terminology used for the title created in favour of a person who was in hostile possession of another person’s property for 12 years continuously. Article 65 of the Limitation act, 1963 (hereinafter referred as “the act”) prescribes a period of 12 years for a suit for possession of immovable property. After the expiration of these 12 years the original owner is remediless and thus the person in possession gains a negative title over the property.
• In other words if a person is in possession of someone else’s property and such possession continues peacefully without any interruptions or attempts from the owner in 12 years  to regain his possession the title for the property will shift to the person in possession of the property for that period. This shifting of title is due to the inaction by the original owner.
• Although in case the original owner is a minor, or of unsound mind or is serving in the armed forces then adverse possession cannot take place. And in case the land is a government property then the limitation period for a suit for possession is 30 years as per Article 112 of the act.
• Through a plethora of Judgements the Apex court has clarified this archaic law to a great extent. In one such case named Gurudwara Sahab v. Gram Panchyat Village Sirthala[1]the Court gave a ruling that the plea of adverse possession can only be used as a defence when a suit for dispossession is filed by the true owner against the person in possession of the land. In other words a person cannot bring a suit under Article 65 of the act for declaration of title and for a permanent injunction seeking protection of his possession on the basis of a title through adverse possession. He/she can only use it as a defence in case a suit is filed against them for dispossession.

Issues considered

• Whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of the act for declaration  of title and for a permanent injunction seeking the protection of his possession thereby restraining the defendant from interfering in 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?

What was held?

• The Apex Court after discussing a good number of Judgements came to the conclusion that the act does not bar a person from filing a suit for possession on the basis of a title through adverse possession.
• The court observed that the statute (Limitation Act) does not define adverse possession but merely prescribes a limitation period of 12 years for filing a suit for possession under Article 65 and extinguishment of right after such period. There may be a case where a person who has perfected his title through adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner, 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 plaintiff. The Court discussed various judgements in which the same has been reiterated.
• In the case of Pannalal Bhagirath Marwadi v. Bhaiyalal Bindraban Pardeshi Teli[2]it was observed that a person in possession cannot be dispossessed otherwise than in due course of law and can sue for protecting the possession. The Court in Somanth Burman v. S.P. Raju[3] said that right to sue is available to the plaintiff against owner as well as other by taking the plea of adverse possession in the plaint.
• The Court while discussing the Judgement in Gurudwara Sahib case observed that the ruling cannot be held as correct law because none of the important judgements related to adverse possession were put before the court, this was because adverse possession was not pleaded by the plaintiff and thus the court just made an observation on the basis of a Punjab and Haryana High Court Judgement in the case of Gurdwara Sahib Sannauli v. State of Punjab[4].
• Another Judgment that has been cited in Gurudwara Sahib is Bhim Singh and Ors. v. Zile Singh and Ors[5] made an observation that Language used in IIIrd Column of Article 65 of the act makes it clear that the plea can only be used as a defense. The sentence in IIIrd column is “the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff”. The use of word “defendant” is what the conclusion is being based here. The Court Strictly denying the inference used by the High Court here said that the High Court has erred in this inference.
• Thus the court held that adverse possession can not only be used as a shield but as a sword to establish a title under Article 65 of the Act.

[1] (2014) 1 SCC 669

[2] AIR 1937 Nagpur 281

[3] (1969) 3 SCC 129

[4] (2009) 154 PLR 756

[5] (2006) 3 RCR Civil 97