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‘Adverse possession’- sword to the plaintiff but should not be applicable in case of enc


The Hon’ble judge Justice ARUN MISHRA, Justice S. ABDUL NAZEER, Justice M.R. SHAH of Supreme Court of India discussed widely the concept of adverse possession. The issues considered by the court is whether Article 65 of the Act only enables a person to set up a plea of adverse possession as a shield to the defendant and whether  such a plea cannot be used a sword by a plaintiff to protect the possession of immovable property ?

“Adverse possession legally means the occupation of land to which another person has a title with the intention of possessing it as one’s own.”

The concept allowed 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.  It is a useful concept but often criticized on the ground that it protects and confers rights upon wrongdoers.  But now it became risky by the judgment made in the above-cited case by the Hon’ble Supreme Court.

The learned counsel Shri P.S. Patwalia and Shri Huzefa Ahmadi, appeared for the parties cited various decisions of this Court and Privy Council and English Courts related to adverse possession.

In the case of Sarangadeva Periya Matam and Anr. V. Ramaswami Gondar(AIR 1966 SC 1603)the decision of the Court was that the plaintiff acquired the title by his adverse possession and was entitled to recover the possession.  In the case of Balkrishan v. Satyaprakash and Ors.,(2001 (2) SCC 498) stated that the law concerning adverse possession is well settled, a person claiming adverse possession has to prove 3 requirements i.e. NEC-NEC vi, NEC clam and Nec Precario.  This means without force, without secrecy, without permission.

In the case of Sk. Mukbool Ali v. Wajed Hossein(1876) the High Court held that unless the defendant actually dispossesses the defendant’s possession could not be considered as having ceased in consequences of the decree.  In the case of Des Raj and Ors v. Bhagat Ram and Ors(2007), the issue framed was whether the plaintiff becomes the owner of the suit property by way of adverse possession, which falls as the major issue of discussion for this present case too.  Here the Court made its opinion that the plaintiff had established that he acquired title by expelling the defendant, by declaring hostile title in himself which was to the knowledge of his co-sharers.

In Nair Service Society Ltd. V.  k.C. Alexander, AIR 1968 SC 1165, the Court observed that if the rightful owner does not come forward within the period of limitation his right is lost, and the possessory owner acquires an absolute title.  Thus for the plaintiff to maintain suit based on adverse possession, it was necessary to involve the owner of the land as a party to the suit.

The case of Lallu Yashwant Singh v. Rao Jagdish Singh and Ors., AIR 19689 SC 620 passed a judgment which prevents the wrongdoers or the landowners to acquire the land in a forcible manner and declared it as illegal in India.  The landlord has no right to re-enter by showing force but he must have to proceed under the law.

Not only in India, the laws in other countries like England also states about adverse possession.  The Halsbury’s laws of England discusses the

  1. Position of a person in adverse possession: a person in possession of land without title continues in possession before the statutory period has elapsed, he has a transmissible interest in the property.

  2. Nature of title acquired: the operation of the statutory provision extinguishes the right and title of the dispossessed 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.

But the Punjab and Haryana High Court reached their conclusion based on an inferential process because article 65 states that the period of limitation is for 12 years which runs from the date when possession of the defendant becomes adverse to the plaintiff.  Therefore the Act 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.

The Supreme Court opines that the inferential process of interpretation employed by the High Court was not at all permissible, because it does not follow from the language used in the statute.

The decisions of this Court and various other privy councils, other High Courts and the Halsbury laws indicate that suits can be filed by the plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Article 64 and 65.  There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against the plaintiff.  The person in possession acquires absolute title and if actual owner dispossesses another person after the extinguishment of his title, he can be evicted by such a person by filing a suit under Article 65 of the above-mentioned act.

The statute does not define adverse possession, but the period is prescribed statutorily as 12 years under the law of Limitation.  Thus if there is a person who acquires the title by virtue of adverse possession 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 a plaintiff.

The court observed that, 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.

Therefore the Supreme Court declares  that a person in possession cannot be expelled by another in a forcible manner rather by due procedure of law and if the 12 year period is over(the period of adverse possession) then even the owners right to eject is lost and the possessory owner acquires right, title and etc.  In the case of dispossession, a possessory suit can also be filed.  In case of property related to public use, the Court made it clear in the statute of limitation that no rights can be accrued by adverse possession.

The honorable Supreme Court stated that;

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 re­entry 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. In India, the law respect possession, persons are not permitted to take law in their hands and dispossess a person in possession by force.

The Hon’ble Bench of Supreme Court declared that a person in possession cannot be evicted by any other person except the due procedure of law and once the 12 years period of adverse possession expires, the right of the owner to evict him is also lost. Therefore consequences 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 under Article 65 of the Limitation Act 1963 and any person who has perfected title by way of adverse possession can file a lawsuit for restoration of possession in case of dispossession.  The bench also stated that the right to adverse possession should not be applicable in case of encroachment of public property.

Akshayan S



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