Whether plea of adverse possession is only a shield and not a sword?

Introduction

Under Indian Limitation Act, 1963 a suit instituted after the period prescribed, is not maintainable and shall be dismissed.[1]

Article 65 of the Limitation Act prescribes the period of limitation for suits for possession of immovable property based on title, as twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. A suit for possession will thus be dismissed, if the defendant successfully proves to be in adverse possession for twelve years. A person claiming adverse possession needs to prove that his possession is adequate in continuity, in publicity and in extent.

A question arises if a plaintiff can set up adverse possession as a cause of action to seek the declaration of title i.e. whether he can use adverse possession as a sword or whether the plea of adverse possession is available only as a shield/defence? This blog seeks to look for an answer.

Extinguishment of ownership on proof of adverse possession and its effect

The pursuit for an answer leads to section 27 of the Limitation Act, which provides that at the determination of the period prescribed to any person for instituting a suit for possession of a property, his right to such property shall be extinguished. Importantly, Limitation Act though bars institution of suits for any relief after a period of limitation, in case of none of the reliefs other than relief of recovery of possession of the property, a provision is made for the extinguishment of right.

The Privy Council[2] considering the effect of adverse possession vis-à-vis the original owner and the possessor held:

“[I]f the rightful owner does not come forward and assert his title by 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.”

In a later decision, considering the effect of adverse possession in the light of S. 28 of the repealed Indian Limitation Act 1908 (corresponding to present section 27 of Indian Limitation Act, 1963) the Privy Council[3] laid down:

“4. [U]nder S. 28 of the Indian Limitation Act, it is expressly provided that at the expiration of the period prescribed by the Act for limitation of suits, not only is the remedy barred but the right is gone. That is quite clear. That being so, the statute has operated to revoke the estate that was originally vested in the plaintiff, and to confer a statutory estate upon the defendants.”

In another case where the plaintiff held the property adversely for upwards of twelve years, the Privy Council[4] took a view that plaintiff had acquired title by prescription and the title of defendant got extinguished.

The Calcutta High Court[5] took similar view when it held:

“The effect of Section 28, therefore, is not merely to extinguish the title of the rightful owner of the land, but also to create a title by negation in the occupant, which he can actively assert if he loses possession, even as against the true owner.”

Acknowledging the effect of adverse possession, the Supreme Court stated[6]:

“Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of the property for the time specified by the statute under claim of right or colour of title.”

The above referred decisions expressly state that as a consequence of adverse possession not only the original owner's title is extinguished, but the possessor acquires title.

Instances of grant of decree of title based on adverse possession:

There are several cases wherein Supreme Court also upheld decree for declaration of plaintiff's title based on plea of adverse possession.[7] Various High Courts too have granted decree for the declaration of title based of adverse possession[8]. However, in these decisions, the question if adverse possession could at all afford of cause of action to seek a declaration of title was neither raised nor considered. The Supreme Court in another case set aside the decree for the title based on adverse possession, on the count that adverse possession was not pleaded and proved, without however doubting the maintainability of suit[9].

View that plea of adverse possession cannot form basis of claim for title

Supreme Court in a later decision,[10] took a contrary view and held that plaintiff could not set up plea of adverse possession to seek declaration of ownership.  It held 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. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.”

The court proceeded to hold as aforesaid on the premise that there is no quarrel about the position. The court, however, did not refer to any provision of law or any precedent to support the view. In absence of court having noticed and considered the effect of section 27 of the Limitation Act or the earlier decisions on the point, the view seems to be per incurium.

There are subsequent decisions of High Courts which have followed the Supreme Court's aforesaid view to hold that suit for declaration of title over a property by adverse possession is not maintainable; and that plea of adverse possession is only a shield and not a sword[11]. It has been held that section 27 would operate only when a plea of adverse possession is established by the defendant in an action for possession based on title. With due respect, section 27 of the Limitation Act does not appear to admit of such inference.

Such a position if prevails would present a challenge to a person who perfects title by adverse possession in that he may be precluded from instituting a suit for declaration and/or injunction to protect illegal dispossession or to recover possession if dispossessed illegally. It would be inequitable that in such circumstance, the person who perfected title by adverse possession has no remedy in law against interference by person whose title stood extinguished by virtue of section 27 of Limitation Act. Further in such a case the property would be without an owner.

The position was in fact aptly clarified by Bombay High Court[12] in an earlier decision, in the following words:

“But the title to immovable property cannot be left in the air, and, it is clear that on extinguishment of the true owner's title, title must follow possession and vest in the trespasser who has got a title by possession.”

Clarity awaited

It is for Supreme Court to clarify the position of law, taking into account the relevant aspects including section 27 of the Limitation Act and all earlier precedents on point. In fact recently, the Supreme Court[13]  after noticing conflicting decisions[14] even remanded the matter to the Punjab & Haryana High Court with a direction to decide whether the suit filed by the plaintiffs declaring them to be owners of the property in dispute on the basis of adverse possession, is maintainable

A legislative intervention to specifically provide for vesting of title in possessor upon expiry of twelve years from adverse possession, would also be welcome.

[1] Section 3 of Limitation Act

[2] Perry v. Clissold and others [1907] A.C. 73

[3]MohuntBhagwanRamanuj v. Ramkrishna Bose, AIR 1922 PC 184

[4]Lala Hem Chand v. LalaPearey Lal,  AIR 1942 PC 64

[5] Bahadur Of Murshidabad vs Gopinath Mandal And Ors Calcutta High Court 6 IndCas 392

[6] P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 

[7] Pl see Balkrishan v. Satyaprakash, (2001) 2 SCC 498, Bondar Singh v. Nihal Singh, (2003) 4 SCC 161 and Des Raj v. Bhagat Ram, (2007) 9 SCC 641 

[8]LalaKishunProsad vs GovindaKaurr on 4 September, 1900 (1901) ILR 28 Cal 370, Badri Chaudhuri v. HarbansJha AIR 1919 Pat 447, FakirappaJotappaMalemani v. NingappaShidlingappaMatti, AIR 1943 Bom 265

[9]HemajiWaghajiJat v. BhikhabhaiKhengarbhaiHarijan, (2009) 16 SCC 517 

[10]Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 

[11] P.M. Palanisamy v. Krishnan, 2015 SCC OnLine Mad 6075, Mohini v. B. Thimmappa 2015 SCC OnLine Ker 24577, J. Janakan vs. Ranipet Municipality MANU/TN/1402/2018, Subbiyan and Ors. vs. The Commissioner, Tamilnadu Hindu Religious and Charitable Endowment Department and Ors. MANU/TN/1688/2018

[12] FakirappaJotappaMalemani v. NingappaShidlingappaMatti, AIR 1943 Bom 265

[13] In civil Appeal no. 3756 of 2017 (Gurucharan Singh and ors v. Gurdev Singh) decided on 6/3/2017

[14] See order dated 10/11/2014 in Special Leave to Appeal (C) CC No(s). 17445/2014