Whether a plaintiff can maintain a suit claiming right, title, or interest over a land by way of adverse possession?

Whether a plaintiff can maintain a suit claiming right, title, or interest over a land by way of adverse possession?

Smt. Chinu Das vs Sri Nimai Debdas
12 March, 2020
RSA 12 OF 2016
Tripura High Court

The issue in regard to the law whether a plaintiff can maintain a suit claiming right, title, interest over a certain land by way of adverse possession and for permanent injunction as envisaged under Article 65 of the Limitation Act, 1963 [in short, the Act] is by now well settled in view of the judgment of the Apex Court by a three-Judge Bench in Ravinder Kaur Grewal & Ors. Vrs. Manjit Kaur & Ors., reported in (2019) 8 SCC 729. The Apex Court after a comprehensive interpretative discussion and having made an elaborate survey of the law and various authorities passed by the Apex Court had considered the case of Gurudwara Sahib. After their Lordships conscious consideration it was held as under:

“50. In Gurudwara Sahib v. Gram Panchayat Village Sirthala [(2014) 1 SCC 669] 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 and Uptron (India) Ltd. v. Shammi Bhan (1998) 6 SCC 538. Though, it appears that there was some expression of opinion since the Court observed that 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 decision on the aforesaid aspect only an observation was made as to proposition of law, which is palpably incorrect.

51. 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 in 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.

52. 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.

53. 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.

54. 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 Lallu Yashwant Singh v. Rao Jagdish Singh [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. Articles 64 and 65 both are attracted in such cases as held by this Court in Desh Raj v. Bhagat Ram (2007) 9 SCC

641. In Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165 it was held that if rightful 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.

55. In Sarangadeva Periya Matam v.Ramaswami Gounder, AIR 1966 SC 1603, the plaintiff’s suit for recovery of possession was decreed against the Math based on the perfection of the title by way of adverse possession, he could not have been Page – 11 of 18 dispossessed by the 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.

56. 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 synonymous with adverse possession.

57. 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.