Until recently, the settled legal position has been that the person in adverse possession can maintain no action for declaration of title, but could only resist a suit for his eviction or, in any way, advesely affecting his possession. That is, the fact of adverse possession constitute only a shield and not a sword.
The above principle follows from the provisions of Limitation Act:
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SL. NO.
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DESCRIPTION OF SUIT
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PERIOD OF LIMITATION
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TIME FROM WHICH PERIOD BEGINS TO RUN
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65.
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For possession of immovable property or any interest therein based on title. |
Twelve years |
When the possession of the defendant becomes adverse to tue plaintiff |
However provisions of Article 112 would apply if the action is filed by the plaintiff:
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112.
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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 and Kashmir. |
Thirty years
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When the period of limitation would begin to run under this Act against a like suit by a private person.
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Thus, the owner of the property is not entitled to file a Suit against the person in adverse possession after the period of 12 years/ 30 years, as the case maybe. This secures him the title to the property. However, he could maintain no suit for declaration. That has been the legal position till recently.
The Supreme Court, in its decision dated 7th August 2019, has revisited the legal position and has held that:
59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence 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 within ken of Article 65 of the Act and 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. 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.
In vew of the legal position as above, declaratory suit could be filed based on adverse possession. For a person who has perfected his title, law prescribes no periof of limitation
