Law of Adverse Possession : A Comprehensive Approach
Written By
Vandana Singh Katiyar Vijay Kumar Katiyar
Researcher & Advocate Sr. Civil Judge
Introduction-
The famous unknown poet in India rightly said that " जो जागे सो पावे जो सोवे सो खोवे"( Jo jage so pave jo sove so khove). The concept of Law of Adverse possession is rightly based on the lines above stated. It means that the root of the tenet of Adverse Possession is deeply rooted in the Indian Society, But in the Ancient era there is no clear cut provision in this respect. Globally this concept has been recognized by the various Countries of the World likewise America, Britain, France, Canada etc. Behind this Concept there should be relationship between property and Hunan Being. If from long time, the person whose having even paper ownership over property have no relation with the corpus of the property than it would be deemed to that he has been relinquished his right and a person who has in peace full possession and taken care of particular property shall deemed to be the owner by the same. It is well said by the known scholar that Adverse possession begins with wrong and end with gain. In this article Authors will try to discuss about the tenet of Adverse possession, legal provisions in this respect, nature of the Adverse possession, history of the pronouncement as interpreted by the Courts of records, Pleadings in this regard, proof of Adverse possession and appreciation of Evidence in the light of Adverse possession.
Tenet Behind Adverse possession -
Before dilating upon the issue it is necessary to discuss here about the concept of the Adverse possession or Philosophy behind it . there are three basic tenet of the Adverse possession these are as follows-
1- The title of the land should not kept in the doubt for a long time.
2- The person taking care of property should prevail over paper owner who has no care of his property from long time.
3- The person who is claiming Adverse possession and true owner does not take any action in statutory period then it shall presumed that he has relinquish his right in the favour of possessor.
Origin and historical background of the Concept of Adverse possession-
Historically, adverse possession is a pretty old concept of law. It is useful but often criticized concept on the ground that it protects and confers rights upon wrongdoers. The concept of adverse possession appeared in the Code of Hammurabi approximately 2000 years before Christ era. Law 30 contained a provision “If a chieftain or a man leaves his house, garden, and field …. and someone else takes possession of his house, garden and field and uses it for three years; if the first owner returns and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.” However, there was an exception to the aforesaid rule: for a soldier captured or killed in battle and the case of the juvenile son of the owner. In Roman times, attached to the land, a kind of spirit that was nurtured by the possessor. Possessor or user of the land was considered to have a greater “ownership” of the land than the titled owner.
We inherited the Common Law concept, being a part of the erstwhile British colony. William in 1066 consolidated ownership of land under the Crown. The Statute of Westminster came in 1275 when land records were very often scarce and literacy was rare, the best evidence of ownership was possession. In 1639, the Statute of Limitation fixed the period for recovery of possession at 20 years. A line of thought was also evolved that the person who possesses the land and produces something of ultimate benefit to the society, must hold the best title to the land. Revenue laws relating to land have been enacted in the spirit to confer the title on the actual tiller of the land. The Statute of Wills in 1540 allowed lands to be passed down to heirs. The Statute of Tenures enacted in 1660 ended the feudal system and created the concept of the title. The adverse possession remained as a part of the law and continue to exist. The concept of adverse possession has a root in the aspect that it awards ownership of land to the person who makes the best or highest use of the land. The land, which is being used is more valuable than idle land, is the concept of utilitarianism. 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 adverse possession statutes permit rapid development of “wild” lands with the weak or indeterminate title. It helps in the Doctrine of Administration also as it can be an effective and efficient way to remove or cure clouds of title which with memories grow dim and evidence becomes unclear. The possessor who maintains and improves the land has a more valid claim to the land than the owner who never visits or cares for the land and uses it, is of no utility. If a former owner neglects and allows the gradual dissociation between himself and what he is claiming and he knows that someone else is caring by doing acts, the attachment which one develops by caring cannot be easily parted with. The bundle of ingredients constitutes adverse possession.
But in Indian history first time the concept of the Adverse possession has been recognized by the Privy council in the case of Perry vs Clissold (1907) AC 73 PC. Even though it is well settled that the pronouncement of the Privy Council is not binding upon Indian Courts but in the year of 1968 Hon'ble Supreme Court in the case of Nair Service Society Ltd vs K C Alexender, AIR 1968 SC 1165 ( 3 Judges Bench) has approved the concept which has been enunciated by the Privy Council in the year of 1907.
Relevant Provisions in respect of Adverse possession-
For the better understanding to the concept of Adverse possession it is relevant to discuss here about the relevant provisions. In the limitation Act, 1963 there are six provisions i.e. Sec-3 and 27 limitation Act & Article-64,65,111 and 112 Limitation Act, 1963 these are as bellow-
3. Bar of limitation.—
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act— (2) For the purposes of this Act—"
(a) a suit is instituted—
(i) in an ordinary case, when the plaint is presented to the proper officer; (i) in an ordinary case, when the plaint is presented to the proper officer;"
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and (ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and"
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;"
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted— (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted—"
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (i) in the case of a set off, on the same date as the suit in which the set off is pleaded;"
(ii) in the case of a counter claim, on the date on which the counter claim is made in court; (ii) in the case of a counter claim, on the date on which the counter claim is made in court;"
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.
27-Extinguishment of right to property.—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.
Article-64- For possession for immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed .The Limitation is twelve years from the date of dispossession.
Article-65- For possession of Twelve years. When the possession immovable property or of the defendant any interest therein becomes adverse to based on title. the plaintiff.
Explanation- For the purpose of this article-
(a) Where the suit is by a remainderman, reversioner ( other than a landlord) or a devisee, the possession of the defendant shall be deemed to be become adverse only when the estate of the remainderman, revioner or devisee as the case may be, falls into possession.
(b) Where the suit is by Hindu or Muslim entitled to the possession of the immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to be become adverse only when the female dies.
(c) Where the suit is by a purchaser at a sale in execution of the decree when the Judgment debtor was out of possession at the date of sale, the purchaser shall be deemed to be representative of the Judgment debtor who was out of possession.
Article- 111. By or on behalf of any local authority for possession of public street or road or any part thereof from which it has been dispossessed or of which it has discontinued the possession. The limitation is thirty years from the date of dispossession or discontinuance.
Article-112. Any suit ( except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any state Government, including the Government of the State of Jammu an Kashmir. The limitation time is thirty years, when the period of limitation would begin to run under this Act against a like suit by a private person.
In the light of above relevant provisions it is very clear that section-3 of the limitation Act provides that no suit shall be filed after statutory period of limitation. it means that if any suit has files after prescribed period of time shall dismissed by the court, although there is no plea in defence in this respect.
Sec-27 of the limitation Act denotes about the consequence of the sec-3. It means that if the statutory period prescribed in limitation Act expires and suit does not file by the paper owner then it shall deemed that he has relinquish his right over the property.
Article-64, 65, 111 & 112 provides about statutory period for filing suits in case of private person statutory time is twelve years and in the respect of the Government thirty years.
The consolidated conclusion on the behalf of all above provisions is that the concept of the Adverse possession is vested in all six provisions which has been mentioned above by the author.
Nature of the Adverse possession-
When we talk about right of possession and ownership in respect of true owner than such right is positive in nature. Other hand if the possession is adverse or title is hostile then we can say that such rights are negative and consequential in nature.
Nature of title acquired by adverse possession has also been discussed in the Halsbury’s Laws of England Para 785 is also extracted hereunder:
“785. Nature of title acquired: The operation of the statutory provision for the extinction of title is merely negative; it 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."
The operation of the statute of limitation in giving a title is merely negative; it 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. 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 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) 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 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 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. 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).””
The decision in Fairweather v. St. Marylebone Property 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 subtenant could only perfect his right against the tenant who inducted him as subtenant prescribed against 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.
In the case of Ravinder kaur Grewal vs Manjeet Kaur, Civil appeal No-7764/2014 Judgment dated 07/08/2019 Hon'ble Supreme court in parra-53 observed about the nature of adverse possession as bellow-
" 53. 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."
Basic elements of Adverse possession-
After reading of the several pronouncement of the Hon'ble Supreme Court we can classifieds elements of adverse possession as bellow-
1- Exclusive.
2- Continuous.
3- Uninterpreted.
4- Actual.
5- Open.
In the case of P T Munichikkanna Reddy vs Revamma,(2007) 6 SCC 59, Hon'ble Supreme Court held that in a claim of adverse possession, two pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paperowner , to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
In Karnataka Wakf Board vs Government of India, 2004 (10) SCC 779 the law was stated, thus: (SCC p. 785, para 11) “11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity, and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka.) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
(a) on what date he came into possession,
(b) what was the nature of his possession,
(c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and
(e) his possession was open and undisturbed.
A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”
In the case of Ravinder kaur Grewal vs Manjeet Kaur, Civil appeal No-7764/2014 Judgment dated 07/08/2019 Hon'ble Supreme court in his para-57 observed about thre element and requirement of the adverse possession as under-
57. The adverse possession requires all the three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario 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.
On the basis of above pronouncements it is very clear that mere long possession over property can not be converted in adverse possession . In other words we can say that if the possession over property become hostile against true owner for this respect there should be specific date of adverse possession an such possession must be absolute means without any condition. It is also important that such adverse possession must be open, means it should be in the knowledge of the true owner and public at large. It is also inculcate that such adverse possession must be continuous an uninterpreted, it means that statutory period which has been prescribed under article-64, 65, 111 & 112 of the Limitation Act, must be expired and no action has been taken by the true owner within statutory period then such possession would be become adverse against true owner.
Example-1
A is the paper owner of the property of X situated in Kanpur Uttar Pradesh. A is residing in USA from last twelve years. B a stranger forcefully entered into property and make some constructions over there. A come to India from USA and visit his property, he finds that there are some construction has been made by any stranger and immediately make an inquiry afterwards B come and asserted that he is the owner of the property. A without causing any delay institutes a suit against B for the relief of recovery of possession. B file his defence and takes plea that his is having peace full possession over property and his right of ownership has been perfected over property by adverse possession. In this case even though possession is peace full, continuous, uninterpreted and actual but such kind of possession can not deemed to be adverse possession because such possession is not open in a simple term you can say that there is no knowledge of possession in respect of true owner he is in USA from last twelve years and A has no knowledge.It means that from the date of hostile possession statutory period should be expired but in this case B has claimed his hostile possession on that date when A went to visit his property after arriving from USA, it means A has filed suit within twelve year hence plea of adverse possession which has been taken by the defendant can not be survived.
Example -2
A is the paper owner of the property X situated in Bareilly Uttar Pradesh. B is the Tenant of property and pays rent Rs-10,000/- per month. Rent dues on the first day of the every Month. B stop paying rent from First January, 2020, A who was the paper owner has not been taken any action against B within statutory period in this situation B will be become owner of property by way of prescription or adverse possession, because possession of B is Continuous, open, actual, uninterpreted & exclusive because from the date of first January, 2020 possession of B had become hostile against paper owner and paper owner in-spite of knowledge has not been taken any action within statutory period. Hence B would be became owner of the property by adverse possession. Knowledge may be express or implied and in above case denial of rent would be deemed to implied knowledge in respect of hostile possession and on the date of hostility limitation commences.
Act which do not amount to adverse possession-
It is general principle that permissible possession is always permissible it means that if possession is permissible then on basis of long possession it can not be converted into adverse possession. the possession of Tenant, Licence, lease, joint or co-owner and possession under section-53 A Transfer of property Act. can not be converted into adverse possession. But there are one exception if such permissible possession becomes hostile against true owner then such permissive possession may be converted into adverse possession if all ingredient in respect of adverse possession are present. please see below case laws-
1- 1996(1) SCC 639 SC
2- 1995(4) SCC 496 SC
Whether adverse possession can be claimed against juristic person -
The response of the author is affirmative in this regard because juristic person is person like living person but he act through his manager like Mathadhipati etc. There is no matter whether Mathadhipati is legally appointed or defacto appointed. See these case laws in this regard-
1- Baba ji Rao vs Laxamandas (1904) ILR 28 Bob 215 (223)
2- Mahadeo Prasad Singh vs Karia Bharti, 69 IND APP 47 at p. 51
3- Vithalbowa vs Narayan Daji (1893) ILR 18 Bom. 507 to 511.
Whether plea of adverse possession can be taken against co-owner -
It is general principle that co-owner is always co-owner but there is an exception in which possession of co-owner converted into adverse possession if ouster of co-owner proved by the person who alleged adverse possession. It means that if co-owner declares his hostile possession against co-owner and co-owner ouster from the property such affected and has not been taken any action within statutory period then such possession would be become adverse possession. See the below case law-
1- Desh Raj and others vs Bhagat Ram and others, (2007) 9 SCC 641.
Whether alternative/inconsisitent plea can be taken or not in respect of adverse possession-
It is general principle that inconsistent plea in respect of adverse possession can not be taken, But on other hand alternative plea can be taken by the plaintiff in a suit of adverse possession. such as in a case plaintiff has taken plea that he is the Benami owner of the property and taken alternative plea that if in case he is not found Benami owner then his title became perfect by adverse possession because he has in possession over property to the knowledge of the defendant. See the below case laws-
1- Karim vs Bibi Skina (1964) 6 SCR 780 SC.
2- Kshitish Chandra Bose vs Commissioner of Ranchi (1981) 2 SCC 103 SC.
3- 2009 (13) SCC 229 SC.
Whether Suit can be filed on basis plea of adverse possession-
It is very important to discuss here that whether suit can be filed on the basis of adverse possession or not ? It is very old concept that plea of adverse possession can be taken in the defence, it also means that plea of adverse possession can be used as a sheld . See these case laws-
1- Gurudwara Sahib Sannauli vs State of Punjab, (2009) 154 PLR 756 P & H .
2- Gurudwara Sahib vs Gram Panchayat Village Sirthal (2014) 1 SCC 669 SC.
3- State of Uttrakhand vs Mandir sri Laxam Sidh Maharaj, (2017 )9 SCC 579 SC .
4- Dharmpal vs Punjab Wakf Board, (2018) 11 SCC 449 SC.
In 2019 Hon'ble Supreme Court in the case of Ravinder kaur Grewal vs Manjeet Kaur, Civil appeal No-7764/2014 Judgment dated 07/08/2019 has over ruled above mentioned pronouncement and said that above pronouncement has been passed without discussion of the decision of the larger bench. in this case Hon'ble Supreme Court said that on the basis of adverse possession suit can be filed and plea of adverse possession can be used as a sword as well as shield. It means that on the basis of the adverse possession suit in respect of declaration of title, Injunction or recovery of possession can be filed. the expression title includes title acquire by adverse possession. See the relevant paras of this pronouncement as below-
46. The conclusion reached by the High Court is based on an inferential process because of the language used in the III rd 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 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.
47. 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 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 decision on the aforesaid aspect only an observation was made as to proposition of law, which is palpably incorrect.
48. 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.
49. 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.
50. 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.
51. 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. Bhagat Ram (supra). In Nair Service Society (supra) 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.
52. 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.
53. 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.
54. 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.
55. 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 property in Section 27 would include corporeal or incorporeal property. Article 65 deals with immovable property.
56. 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 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.
pleading and proof in respect of adverse possession-
It is well established that pleading in respect of adverse possession must be pleaded specifically and with full particulars it means that if pleading in this respect is vague and not specially pleaded than suit or defence can not be survived. In a case plaintiff only in relief clause taken plea of adverse possession Court denied his case and has not consider his plea. another very important thing is that the person who alleged about adverse possession must proved his pleading if he could not proved then suit can not be decreed . In a respect of suit of adverse possession it would be admitted by the plaintiff that defendant was the true owner of the property and his rights has been perfected by adverse possession.It means that if plaintiff does not admit the that defendant was the true owner then his plea would be presumed inconsistent . It is also inculcate that right by adverse possession is negative in nature and must be proves strictly, it means that benefit of equity can not be given in the favour of person who alleged about the plea of adverse possession. See the case laws as below-
1- Karim vs Bibi Skina (1964) 6 SCR 780 SC.
2- In Karnataka Wakf Board vs Government of India, 2004 (10) SCC 779.
3- 2006 (7) SCC 570 SC.
4- 2017 (13) SCC 708 SC.
5- Ravinder kaur Grewal vs Manjeet Kaur, Civil appeal No-7764/2014 Judgment dated 07/08/2019.
Conclusion-
On the basis of above discussion it can be said that under section-3, 27 and Article- 64,65,111 & 112 the concept of adverse possession is vested, it is negative right, the expression title includes adverse possession, the plea of adverse possession can be used as a sword as well as shield, suit can be filed on the basis of adverse possession, equity can not be given in the favour of adverse possessor, there must be full particulars in the pleading in this respect, it must be strictly proved by the positive evidence.
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