SC:One who gets title by adverse possession can sue u/A65, Limitation Act

The Hon’ble Supreme Court, on 7thAugust 2019, in the matter of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. observed that a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of Limitation Act for declaration of title, for a permanent injunction seeking the protection of his possession thereby restraining the defendant or for restoration of possession in case of illegal dispossession.

The Hon’ble Supreme Court observed that:

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. (Para 2)

a person is entitled to bring a suit of possessory title to obtain possession even though the title may vest in a third person. (Para 13)

A person in the possessory title can get injunction also, restraining the defendant from interfering with his possession. . (Para 13)

The prayer clause is not a substitute for a plea of adverse possession. Plaintiff can take a plea of adverse possession but with full particulars. (Para 19)

There is an acquisition of title by adverse possession as such, such a person in the capacity of a plaintiff can always use the plea in case any of his rights are infringed including in case of dispossession. (Para 20)

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. (Para 32)

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. (Para 46)

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 (Para 46)

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 Limitation Act. (Para 46)

A decision based upon concession cannot be treated as precedent (Para 47)

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. (Para 47)

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. (Para 49)

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. (Para 49)

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. (Para 50)

The possession as trespasser is not adverse nor long possession is synonym with adverse possession. (Para 53)

The joint possessor/co­-owner possession is not presumed to be adverse. (Para 56)

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. (Para 57)

Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. (Para 57)

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. (Para 57)

Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. (Para 58)

Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period. (Para 58)

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 (Para 59)

Any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. (Para 59)

By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. (Para 59)

Copy of judgement: Judgement_07-Aug-2019

Adv. Tushar Kaushik

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