# RAVINDER KAUR GREWAL & ORS v. MANJIT KAUR & ORS

- **Citation:** [2019] 11 S.C.R. 74
- **Court:** Supreme Court of India
- **Decided:** 2019-08-07
- **Case number:** Civil Appeal No. 7764 of 2014
- **Bench:** Arun Mishra, S. Abdul Nazeer, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ravinder-kaur-grewal-ors-v-manjit-kaur-ors-33097
- **Pages:** 61

## Headnote

Limitation Act, 1963 - Art.65 - Suit under, for declaration of
title - If can be filed by person claiming the title by virtue of adverse
possession - Two-Judge Bench Decision of Supreme Court in
Gurudwara Sahab v. Gram Panchayat Village Sirthala referring to the
decision of the Punjab and Haryana High Court in one Gurudwara
Sahib Sannauli case, opined that no declaration of title can be sought
by plaintiff on the basis of adverse possession inasmuch as adverse
possession can be used as shield by defendant and not as sword by
plaintiff - Held: Supreme Court in Gurudwara Sahab case while
deciding the question simply observed that there is "no quarrel"
with the proposition to the extent that suit cannot be based by the
plaintiff on adverse possession - Thus, the point whether the plaintiff
can take the plea of adverse possession was not contested and none
of the decisions of larger and coordinate benches holding the
contrary views were placed before the two-Judge Bench- Further,
in the case of Gurdwara Sahib Sannauli also, there is no independent
consideration -Punjab & Haryana High Court proceeded on the
basis that as per Art.65, the plea of adverse possession is available
as defence to a defendant - Conclusion is based on an inferential
process because of the language used in the IIIrd Column of Article
65 - 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 - Inferential process of interpretation
employed by the High Court is not permissible- There is no bar u/
Art.65 or any of the provisions of the 1963 Act as against the plaintiff
who has perfected title by virtue of adverse possession to sue for
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eviction of a person or to protect his possession - Decisions of
Supreme Court in Gurudwara Sahab, in Mandir Shri Lakshmi Siddh
Maharaj relying on Gurudwara Sahab and in Punjab Wakf Board
case cannot be said to be laying down the law correctly and thus
are overruled - Possession - Adverse Possession - Specific Relief
Act, 1963 - s.6.
Possession - Adverse Possession - Effect of adverse
possession as against limited owner - Discussed.
Possession - Adverse Possession - Concept of - Held: Statute
does not define adverse possession - It is a common law concept,
the period of which has been prescribed statutorily as 12 years -
Law of limitation does not define adverse possession nor anywhere
contains a provision that the plaintiff cannot sue based on adverse
possession - Under Art.64 also suit can be filed based on the
possessory title - Limitation Act, 1963 - s.27 and Art.64.
Possession - Adverse Possession - Title acquired by - Nature
of - Discussed.
Limitation Act, 1963 - Operation of - Held: 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.
Words & Expressions - "title", "tacking"- Meaning of -
Discussed - Limitation Act, 1963 - Art.65.
Words & Expressions - "ownership", "possession" - Kinds
of - Discussed.
Possession - Adverse Possession - Proof of - Requirements
for - Held: Adverse possession requires all the three classic
requirements to co-exist at the same time, namely, nec-vi i.e. adequate
in continuity, nec-clam i.e., adequate in publicity and nec-precario
i.e. adverse to a competitor, in denial of title and his knowledge.
Possession - Adverse Possession - When not - Held:
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 doe

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SUPREME COURT REPORTS
[2019] 11 S.C.R.
RAVINDER KAUR GREWAL & ORS.
v.
MANJIT KAUR & ORS.
(Civil Appeal No. 7764 of 2014)
AUGUST 07, 2019
[ARUN MISHRA, S. ABDUL NAZEER
AND M. R. SHAH, JJ.]
Limitation Act, 1963 - Art.65 - Suit under, for declaration of
title - If can be filed by person claiming the title by virtue of adverse
possession - Two-Judge Bench Decision of Supreme Court in
Gurudwara Sahab v. Gram Panchayat Village Sirthala referring to the
decision of the Punjab and Haryana High Court in one Gurudwara
Sahib Sannauli case, opined that no declaration of title can be sought
by plaintiff on the basis of adverse possession inasmuch as adverse
possession can be used as shield by defendant and not as sword by
plaintiff - Held: Supreme Court in Gurudwara Sahab case while
deciding the question simply observed that there is "no quarrel"
with the proposition to the extent that suit cannot be based by the
plaintiff on adverse possession - Thus, the point whether the plaintiff
can take the plea of adverse possession was not contested and none
of the decisions of larger and coordinate benches holding the
contrary views were placed before the two-Judge Bench- Further,
in the case of Gurdwara Sahib Sannauli also, there is no independent
consideration -Punjab & Haryana High Court proceeded on the
basis that as per Art.65, the plea of adverse possession is available
as defence to a defendant - Conclusion is based on an inferential
process because of the language used in the IIIrd Column of Article
65 - 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 - Inferential process of interpretation
employed by the High Court is not permissible- There is no bar u/
Art.65 or any of the provisions of the 1963 Act as against the plaintiff
who has perfected title by virtue of adverse possession to sue for
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eviction of a person or to protect his possession - Decisions of
Supreme Court in Gurudwara Sahab, in Mandir Shri Lakshmi Siddh
Maharaj relying on Gurudwara Sahab and in Punjab Wakf Board
case cannot be said to be laying down the law correctly and thus
are overruled - Possession - Adverse Possession - Specific Relief
Act, 1963 - s.6.
Possession - Adverse Possession - Effect of adverse
possession as against limited owner - Discussed.
Possession - Adverse Possession - Concept of - Held: Statute
does not define adverse possession - It is a common law concept,
the period of which has been prescribed statutorily as 12 years -
Law of limitation does not define adverse possession nor anywhere
contains a provision that the plaintiff cannot sue based on adverse
possession - Under Art.64 also suit can be filed based on the
possessory title - Limitation Act, 1963 - s.27 and Art.64.
Possession - Adverse Possession - Title acquired by - Nature
of - Discussed.
Limitation Act, 1963 - Operation of - Held: 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.
Words & Expressions - "title", "tacking"- Meaning of -
Discussed - Limitation Act, 1963 - Art.65.
Words & Expressions - "ownership", "possession" - Kinds
of - Discussed.
Possession - Adverse Possession - Proof of - Requirements
for - Held: Adverse possession requires all the three classic
requirements to co-exist at the same time, namely, nec-vi i.e. adequate
in continuity, nec-clam i.e., adequate in publicity and nec-precario
i.e. adverse to a competitor, in denial of title and his knowledge.
Possession - Adverse Possession - When not - Held:
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 - Maxims -
Animus possidendi.
RAVINDER KAUR GREWAL v. MANJIT KAUR
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Directing the matters to be placed for consideration on
merits before the appropriate Bench, the Court
HELD: 1.1 In Halsbury's Laws of England, 4th Edn., Vol.
28, para 777 positions of person in adverse possession has been
discussed and it has been observed on the basis of various
decisions that a person in possession has a transmissible interest
in the property and after expiration of the statutory period, it
ripens as good a right to possession. In Halsbury's Laws of
England, extinction of title by the effect of the expiration of the
period of limitation has also been discussed in Para 783 and once
right is lost to recover the possession, the same cannot be revested by any re-entry or by a subsequent acknowledgment of
title. Nature of title acquired by adverse possession has also been
discussed in the Halsbury's Laws of England in Para 785. It has
been observed that adverse possession leaves the occupant with
a title gained by the fact of possession and resting on the infirmity
of the rights of others to eject him. Same is a "good title", both at
law and in equity. The adverse possessor does not derive his
title from the former owner, but from a new source of title, his
possession. The "investitive fact" is the disseisin and exercise
of possession. It has also been observed that titles to property
should not remain uncertain and in dispute, but that continued
de facto exercise and assertion of a right should be conclusive
evidence of the de jure existence of the right. [Paras 25-28]
[115-C-D-G; 116-C; 117-C-D]
1.2 If a person is having a limited right, a person against
him can prescribe only to acquire that limited right which is
extinguished and not beyond that. There is a series of decisions
laying down this proposition of law as to the effect of adverse
possession as against limited owner if extinguishing title of the
limited owner not that of reversion or having some other title.
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. The decision in Gurdwara Sahib v. Gram Panchayat
Village Sirthala & Anr. (2014) 1 SCC 669 decided by two-Judge
Bench referred to the Punjab & Haryana High Court decision on
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Gurdwara Sahib Sannauli v. State of Punjab (2009) 154 PLR 756
and observed that there cannot be 'any quarrel' to the extent
that the judgments of courts below are correct and without any
blemish. 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. The discussion made is
confined to para 8 only. Punjab & Haryana High Court in Gurdwara
Sahib Sannauli, which has been referred by this Court in
Gurudwara Sahib v. Gram Panchayat, Sirthala, there is no
independent consideration. Only the decision of the same High
Court in Bhim Singh & Ors. v. Zila Singh & Ors. AIR 2006 P&H
195 has been relied upon to hold that no declaration can be sought
by the plaintiff based on adverse possession. [Paras 31, 32, 39
and 43] [119-F-H; 120-A; 122-F-H; 126-A-E]
1.3 The conclusion reached by the High Court is based on
an inferential process because of the language used in the IIIrd
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 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,
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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. In
Gurudwara Sahib v. Gram Panchayat, Sirthala (supra) proposition
was not disputed. A decision based upon concession cannot be
treated as precedent. 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. 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. 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. 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
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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. [Paras 46-50]
[129-A-H; 130-A-F]
1.4 In India, the law respect possession, persons are not
permitted to take law in their hands and dispossess a person in
possession by force. 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. 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. 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. 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. [Paras 51,
53-55] [130-G-H; 131-D-H; 132-A]
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1.5 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. The adverse possession requires all the three classic
requirements to co-exist at the same time, namely, nec-vi i.e.
adequate in continuity, nec-clam i.e., adequate in publicity and
nec-precario 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. Adverse
possession is heritable and there can be tacking of adverse
possession by two or more persons as the right is transmissible
one. It confers a perfected right which cannot be defeated on
reentry except as provided in Article 65 itself. 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
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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. 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.
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. When the law of adverse possession is considered
as has developed vis-à-vis to property dedicated to public use,
courts have been loath to confer the right by adverse possession.
There are instances when such properties are encroached upon
and then a plea of adverse possession is raised. In such cases,
on the land reserved for public utility, it is desirable that rights
should not accrue. The law of adverse possession may cause
harsh consequences, hence, it would be advisable that concerning
such properties dedicated to public cause, it is made clear in the
statute of limitation that no rights can accrue by adverse
possession. [Paras 56-60] [132-B-H; 133-A-H]
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1.6 Decisions of Gurudwara Sahab v. Gram Panchayat Village
Sirthala and decision relying on it in State of Uttarakhand v. Mandir
Shri Lakshmi Siddh Maharaj and Dharampal (dead) through LRs
v. Punjab Wakf Board cannot be said to be laying down the law
correctly, thus they are hereby overruled. Plea of acquisition of
title by adverse possession can be taken by plaintiff under Article
65 of the Limitation Act and there is no bar under the Limitation
Act, 1963 to sue on aforesaid basis in case of infringement of any
rights of a plaintiff. The matters be placed for consideration on
merits before the appropriate Bench. [Paras 61, 62] [134-A-C]
Gurudwara Sahab v. Gram Panchayat Village Sirthala
(2014) 1 SCC 669; State of Uttarakhand v. Mandir Sri
Laxman Sidh Maharaj (2017) 9 SCC 579 : [2017] 14
SCR 257; Dharampal (Dead) through LRs v. Punjab
Wakf Board (2018) 11 SCC 449 : [2017] 8 SCR 316 -
overruled.
Sarangadeva Periya Matam & Anr. v. Ramaswami
Gondar (Dead) by Lrs. AIR 1966 SC 1603 ; Balkrishan
vs. Satyaprakash & Ors. (2000) 2 SCC 498 : [2001] 1
SCR 480; Des Raj and Ors. v. Bhagat Ram (Dead) by
Lrs. and Ors. (2007) 9 SCC 641 : [2007] 2 SCR 892 ;
Kshitish Chandra Bose v. Commissioner of Ranchi
(1981) 2 SCC 103 : [1981] 2 SCR 764 ; Nair Service
Society Ltd. v. K.C. Alexander AIR 1968 SC 1165 :
[1968] SCR 163 ; Lallu Yashwant Singh (dead) by his
legal representative v. Rao Jagdish Singh & Ors. AIR
1968 SC 620 : [1968] SCR 203 ; Somnath Berman v.
Dr. S.P. Raju & Anr. AIR 1970 SC 846 : [1970] 2 SCR
869 ; Padminibai v. Tangavva & Ors. AIR 1979 SC
1142 ; State of West Bengal v. The Dalhousie Institute
Society AIR 1970 SC 1778 ; S.M. Karim v. Mst. Bibi
Sakina AIR 1964 SC 1254 : [1964] SCR 780; Mandal
Revenue Officer v. Goundla Venkaiah & Anr. (2010) 2
SCC 461 ; State of Rajasthan v. Harphool Singh (2000)
5 SCC 652 : [2000] 3 SCR 958 ; State of Haryana v.
Mukesh Kumar & Ors. (2011) 10 SCC 404 : [2011] 14
SCR 211; P.T. Munichikkanna Reddy v. Revamma
(2007) 6 SCC 59 : [ 2007] 5 SCR 491 ; Krishnamurthy
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S. Setlur (dead) by LRs. v. O.V. Narasimha Setty & Ors.
(2007) 3 SCC 569 : [2007] 2 SCR 1097 ; Ram Daan
(Dead) through LRs. v. Urban Improvement Trust (2014)
8 SCC 902 : [2014] 8 SCR 360 ; Hemaji Waghaji Jat v.
Bhikhabhai Khengarbhai Harijan & Ors. (2009) 16
SCC 517 : [2008] 13 SCR 818 - relied on.
Musumut Chundrabullee Debia v. Luchea Debia
Chowdrain 1865 SCC Online PC 7 ; Midnapur
Zamindary Company Ltd. V. Naresh Narayan Roy AIR
1924 PC 144 ; Yar Mohammad v. Laxmi Das AIR 1959
All. 1 ; Mohammed Fateh Nasib v. Swarup Chand
Hukum Chand & Anr. AIR 1948 PC 76 ; Gunga Govind
Mundul & Ors. v. The Collector of the Twenty-Four
Pergunnahs & Ors. (Decision of Privy Council) 11 MIA
212 ; Lala Hem Chand v. Lala Pearey Lal & Ors. AIR
1942 PC 64 ; Annakili v. A. Vedanayagam (2007) 14
SCC 308 : [2007] 11 SCR 517 ; Nepen Bala Debi v.
Siti Kanta Banerjee (1910) 8 Ind Cas 41 (DB) (Cal) ;
Ngasepam Ibotombi Singh v. Wahengbam Ibohal Singh
& Anr. AIR 1960 Manipur 16 ; Aboobucker s/o Shakhi
Mahomed Laloo v. Sahibkhatoon AIR 1949 Sindh 12 ;
Bata Krista Pramanick v. Shebaits of Thakur Jogendra
Nath Maity & Ors. AIR 1919 Cal. 339 ; Ram Chandra
Sil & Ors. v. Ramanmani Dasi & Ors. AIR 1917 Cal.
469 ; Shiromani Gurdwara Parbhandhak Committee,
Khosakotla & Anr. v. Prem Das & Ors. AIR 1933 Lah
25 ; Rangappa Nayakar v. Rangaswami Nayakar AIR
1925 Mad. 1005 ; Shaikh Alimuddin v. Shaikh Salim
1928 IC 81 (PC) ; Pannalal Bhagirath Marwadi v.
Bhaiyalal Bindraban Pardeshi Teli AIR 1937 Nagpur
281 ; Krishna Ram Mahale (dead) by L.Rs v. Shobha
Venkat Rao (1989) 4 SCC 131 ; State of U.P. v. Maharaja
Dharmander Prasad Singh (1989) 2 SCC 505 : [1989]
1 SCR 176 ; Radhamoni Debi v. The Collector of
Khulna & Ors. (1900) ILR 27 Cal. 943 ; Gurdwara
Sahib Sannauli v. State of Punjab (2009) 154 PLR 756
; T. Anjanappa v. Somalingappa (2006) 7 SCC 570 :
[2006] 5 Suppl. SCR 200 ; Bhim Singh & Ors. v. Zila
Singh & Ors. AIR 2006 P&H 195 ; State of Rajasthan
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v. Mahaveer Oil Industries (1999) 4 SCC 357 : [1999]
2 SCR 798 ; Director of Settlements, A.P. v. M.R.
Apparao (2002) 4 SCC 638 : [2002] 2) SCR 661;
Uptron India Limited v. Shammi Bhan (1998) 6 SCC
538 : [1998] 1 SCR 719 - referred to.
Fairweather v. St. Marylebone Property Co. Ltd. (1962)
2 AER 288 (HL) ; Taylor v. Twinberrow 1930 All ER
Rep 342 (DC) ; Toltec Ranch Co. v. Cook, 191 U.S.
532, 542 (1903) ; Field v. Peoples, 180 Ill. 376, 383,
54 N.E. 304 (1899) ; Bellefontaine Co. v. Niedringhaus
181 Ill. 426, 55 N.E. 184 (1899) ; Cf. La Salle v.
Sanitary District, 260 Ill. 423, 429, 103 N.E. 175
(1913) ; Camp v. Camp, 5 Conn. 291 (1824) ; Price v.
Lyon, 14 Conn. Conn. 279, 290 (1841) ; Coal Creek,
etc. Co. v. East Tenn. I. & C. Co., 105 Tenn. 563; 59
S.W. 634, 636 (1900); Tichborne v. Weir, (1892) 67
LT 735 ; Perry v. Clissold (1907) AC 73 - referred
to.
Halsbury's Laws of England, 4th Edn., Vol. 28, para
777; Harvard Law Review on "Title by Adverse
Possession" by Henry W. Ballantine; Ames, Lectures
On Legal Hist. 197; 3 Anglo-American Essays, 567 -
referred to.
Case Law Reference
(2014) 1 SCC 669
overruled
Para 4
(2009) 154 PLR 756
referred to
Para 4
AIR 1966 SC 1603
relied on
Para 6
[2001] 1 SCR 480
relied on
Para 8
[2007] 2 SCR 892
relied on
Para 9
[1981] 2 SCR 764
relied on
Para 10
[1968] SCR 163
relied on
Para 11
[1968] SCR 203
relied on
Para 12
AIR 1924 PC 144
referred to
Para 12
AIR 1959 All. 1
referred to
Para 12
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D
E
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85
[1970] 2 SCR 869
relied on
Para 13
AIR 1979 SC 1142
relied on
Para 15
AIR 1970 SC 1778
relied on
Para 16
AIR 1948 PC 76
referred to
Para 17
11 M.I.A. 212
referred to
Para 18
[1964] SCR 780
relied on
Para 19
(2010) 2 SCC 461
relied on
Para 20
[2000] 3 SCR 958
relied on
Para 20
[2007] 11 SCR 517
referred to
Para 20
[2007] 5 SCR 491
relied on
Para 20
[2011] 14 SCR 211
relied on
Para 22
[2007] 2 SCR 1097
relied on
Para 23
AIR 1942 PC 64
referred to
Para 29
[2014] 8 SCR 360
relied on
Para 32
(1910) 8 Ind Cas 41 (DB) (Cal)
referred to
Para 34
AIR 1960 Manipur 16
referred to
Para 34
AIR 1949 Sindh 12
referred to
Para 34
AIR 1919 Cal. 339
referred to
Para 34
AIR 1917 Cal. 469
referred to
Para 34
AIR 1933 Lah 25
referred to
Para 34
AIR 1925 Mad. 1005
referred to
Para 34
1928 IC 81 (PC)
referred to
Para 34
AIR 1937 Nagpur 281
referred to
Para 35
(1989) 4 SCC 131
referred to
Para 35
[1989] 1 SCR 176
referred to
Para 35
(1900) ILR 27 Cal. 943
referred to
Para 36
[2008] 13 SCR 818
relied on
Para 38
[2006] 5 Suppl. SCR 200
referred to
Para 38
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[2017] 14 SCR 257
overruled
Para 40
[2017] 8 SCR 316
overruled
Para 41
AIR 2006 P&H 195
referred to
Para 43
[1999] 2 SCR 798
referred to
Para 47
[2002] 2 SCR 661
referred to
Para 47
[1998] 1 SCR 719
referred to
Para 47
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7764
of 2014.
From the Judgment and Order dated 27.11.2007 of the High Court
of Punjab and Haryana at Chandigarh in R.S.A. No. 946 of 2004.
With
S.L.P.(C) Nos. 8332-8333/2014.
P. S. Patwalia, Huzefa Ahmadi, Sr. Advs. ACs.
Prem Malhotra, Adv. for the Appellants.
Parveen Kumar Aggarwal, Sanjay Jain, Advs. for the Respondents.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The question of law involved in the present matters is quite
significant. Whether a person claiming the title by virtue of adverse
possession can maintain a suit under Article 65 of Limitation Act, 1963
(for short, "the Act") for declaration of title and for a permanent injunction
seeking the protection of his possession thereby restraining the defendant
from interfering in the possession or for restoration of possession in
case of illegal dispossession by a defendant whose title has been
extinguished by virtue of the plaintiff remaining in the adverse possession
or in case of dispossession by some other person? In other words, whether
Article 65 of the Act only enables a person to set up a plea of adverse
possession as a shield as a defendant and such a plea cannot be used as
a sword by a plaintiff to protect the possession of immovable property or
to recover it in case of dispossession. Whether he is remediless in such
a case? In case a person has perfected his title based on adverse
possession and property is sold by the owner after the extinguishment of
his title, what is the remedy of a person to avoid sale and interference in
possession or for its restoration in case of dispossession?
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2. Historically, adverse possession is a pretty old concept of law.
It is useful but often criticised 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
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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.
3. We have heard learned counsel appearing for the parties at
length and also the Amicus Curiae, Shri P.S. Patwalia and Shri Huzefa
Ahmadi, senior counsel. Various decisions of this Court and Privy Council
and English Courts have been cited in which the suit filed by the plaintiff
based on adverse possession has been held to be maintainable for
declaration of title and protection of the possession or the restoration of
possession. Nature of right acquired by adverse possession and even
otherwise as to the right to protect possession against unlawful
dispossession of the plaintiff or for its recovery in case of illegal
dispossession.
4. Before dilating upon the issue, it is necessary to refer the decision
in Gurudwara Sahab v. Gram Panchayat Village Sirthala (2014) 1
SCC 669 in which this court has referred to the decision of the Punjab
and Haryana High Court in Gurudwara Sahib Sannauli v. State of
Punjab since reported in (2009) 154 PLR 756, to opine that no declaration
of title can be sought by a plaintiff on the basis of adverse possession
inasmuch as adverse possession can be used as a shield by a defendant
and not as a sword by a plaintiff. This Court while deciding the question
gave the only reason by simply observing that there is "no quarrel" with
the proposition to the extent that suit cannot be based by the plaintiff on
adverse possession. Thus, this point was not contested in Gurudwara
Sahib v. State Gram Panchayat Village, Sirthala (supra) when this
Court expressed said opinion.
5. It is pertinent to mention here that before the aforesaid decision
of this court, there was no such decision of this court holding that suit
cannot be filed by a plaintiff based on adverse possession. The views to
the contrary of larger and coordinate benches were not submitted for
consideration of the Two Judge Bench of this Court which decided the
aforesaid matter.
6. A Three-Judge Bench decision in Sarangadeva Periya Matam
& Anr. v. Ramaswami Gondar (Dead) by Lrs. AIR 1966 SC 1603 of
this Court in which the decision of Privy Council in Musumut
Chundrabullee Debia v. Luchea Debia Chowdrain 1865 SCC Online
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PC 7 had been relied on, was not placed for consideration before the
division bench deciding Gurudwara Sahib v. Gram Panchayat, Sirthala.
7. Learned Amicus pointed out that in Sarangadeva Periya
Matam & Anr. v. Ramaswami Goundar (Dead) by Lrs. (supra) the
plaintiff was in the possession of the suit land until January 1950 when
the 'mutt' obtained possession of the land. On February 18, 1954, plaintiff
instituted the suit against the 'mutt' for "recovery of possession" of the
suit land o based on an acquisition of title to land by way of "adverse
possession". A Three-Judge Bench of this Court has held that the plaintiff
acquired the title by his adverse possession and was entitled to recover
the possession. Following is the relevant discussion:
"1. Sri Sarangadevar Periya Matam of Kumbakonam was the
inam holder of lands in Kannibada Zamin, Dindigul Taluk, Madurai
District. In 1883, the then mathadhipathi granted a perpetual lease
of the melwaram and kudiwaram interest in a portion of the inam
lands to one Chinna Gopiya Goundar, the grandfather of the
plaintiff-respondent on an annual rent of Rs. 70. The demised
lands are the subject-matter of the present suit. Since 1883 until
January 1950 Chinna Gopiya Goundar and his descendants were
in uninterrupted possession and enjoyment of the suit lands. In
1915, the mathadhipathi died without nominating a successor. Since
1915, the descendants of Chinna Gopiya Goundar did not pay any
rent to the math. Between 1915 and 1939 there was no
mathadhipathi. One Basavan Chetti was in management of the
math for a period of 20 years from 1915. The present mathadhipathi
was elected by the disciples of the Math in 1939. In 1928, the
Collector of Madurai passed an order resuming the inam lands
and directing the full assessment of the lands and payment of the
assessment to the math for its upkeep. After resumption, the lands
were transferred from the "B" Register of inam lands to the "A"
Register of ryotwari lands and a joint patta was issued in the
name of the plaintiff and other persons in possession of the lands.
The plaintiff continued to possess the suit lands until January 1950
when the math obtained possession of the lands. On February 18,
1954, the plaintiff instituted the suit against the math represented
by its present mathadhipathi and an agent of the math claiming
recovery of possession of the suit lands. The plaintiff claimed that
he acquired title to the lands by adverse possession and by the
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issue of a ryotwari patta in his favour on the resumption of the
inam. The Subordinate Judge of Dindigul accepted the plaintiff's
contention and decreed the suit. On appeal, the District Judge of
Madurai set aside the decree and dismissed the suit. On second
appeal, the High Court of Madras restored the judgment and
decree of the Subordinate Judge. The defendants now appeal to
this Court by special leave. During the pendency of the appeal,
the plaintiff-respondent died and his legal representatives have
been substituted in his place.
2. The plaintiff claimed title to the suit lands on the following
grounds : (1) Since 1915 he and his predecessors-in-interest were
in adverse possession of the lands, and on the expiry of 12 years
in 1927, he acquired prescriptive title to the lands under s. 28 read
with Art. 144 of the Indian Limitation Act, 1908; (2) by the
resumption proceedings and the grant of the ryotwari patta a new
tenure was created in his favour and he acquired full ownership
in the lands; and (3) in any event, he was in adverse possession of
the lands since 1928, and on the expiry of 12 years in 1940 he
acquired prescriptive title to the lands under s. 28 read with Art.
134-B of the Indian Limitation Act, 1908. We are of the opinion
that the first contention of the plaintiff should be accepted, and it
is, therefore, not necessary to consider the other two grounds of
his claim.
6. We are inclined to accept the respondents' contention. Under
Art. 144 of the Indian Limitation Act, 1908, limitation for a suit by
a math or by any person representing it for possession of
immovable properties belonging to it runs from the time when the
possession of the defendant becomes adverse to the plaintiff. The
math is the owner of the endowed property. Like an idol, the math
is a juristic person having the power of acquiring, owning and
possessing properties and having the capacity of suing and being
sued. Being an ideal person, it must of necessity act in relation to
its temporal affairs through human agency. See Babajirao v.
Laxmandas (1904) ILR 28 Bom 215 (223). It may acquire
property by prescription and may likewise lose property by adverse
possession. If the math while in possession of its property is
dispossessed or if the possession of a stranger becomes adverse,
it suffers an injury and has the right to sue for the recovery of the
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property. If there is a legally appointed mathadhipathi, he may
institute the suit on its behalf; if not, the de facto mathadhipathi
may do so, see Mahadeo Prasad Singh v. Karia Bharti 62 Ind
App 47 at p.51 and where, necessary, a disciple or other beneficiary
of the math may take steps for vindicating its legal rights by the
appointment of a receiver having authority to sue on its behalf, or
by the institution of a suit in its name by a next friend appointed by
the Court. With due diligence, the math or those interested in it
may avoid the running of time. The running of limitation against
the math under Art. 144 is not suspended by the absence of a
legally appointed mathadhipathi; clearly, limitation would run
against it where it is managed by a de facto mathadhipathi. See
Vithalbowa v. Narayan Daji, (1893) I.L.R 18 Bom 507 at p.511,
and we think it would run equally if there is neither a de jure nor a
de facto mathadhipathi.
10. We hold that by the operation of Art. 144 read with s. 28 of
the Indian Limitation Act, 1908 the title of the math to the suit
lands became extinguished in 1927, and the plaintiff acquired title
to the lands by prescription. He continued in possession of the
lands until January 1950. It has been found that in January 1950
he voluntarily delivered possession of the lands to the math, but
such delivery of possession did not transfer any title to the math.
The suit was instituted in 1954 and is well within time.
(emphasis supplied)"
8. In Balkrishan vs.