In a landmark judgment, Ravinder Kaur Grewal v Manjit Kaur^[i], the Supreme Court has held that any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. This means a person who has acquired right over a property as it was in his possession for 12 years can file a suit to reclaim it in case of forced dispossession by the original owner or any other party. The court observed 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 the ken of Article 65 of the Limitations Act, 1963.

Resultantly, the decision of Gurudwara Sahab v. Gram Panchayat Village Sirthala[ii] and 

decisions relying on it in State of Uttarakhand   v.   Mandir   Shri   Laxman   Sidh   Maharaj[iii] and Dharampal (Dead) through LRs v. Punjab Wakf Board[iv] were declared incorrect and therefore overruled. Consequently, the idea that the plea of adverse possession can be raised only by way of defence does not hold water anymore.

Question of Law

Whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of Limitation Act, 1963 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 ? 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?

Observations and Verdict

The Court held 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. Moreover, 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 original owner after having lost the right by adverse possession, he can be evicted by the possessor by taking the plea of adverse possession.

In Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra), the Apex Court had opined that no declaration of title could be sought by a plaintiff on the basis of adverse possession in as much as adverse possession can be used as a shield by a defendant and not as a sword by a plaintiff. However, the court clarified that the present issue was not extensively contested in that case and only a passing observation had been made which was palpably incorrect.

Further, in Bhim Singh & Ors.[v] where a suit for declaration and injunction claiming ownership had been filed based on adverse possession, the Punjab & Haryana High Court had held, relying on the language of the IIIrd column of Article 65, that the plea of adverse possession was a defence available only to a defendant. The Apex Court has now clarified that the conclusion of the High Court based on the inferential process was not permissible as the language of Article 65 nowhere barred the perfection of title by way of adverse possession whether a person was suing or being sued.

In Article 65, a suit “for possession of immovable property or any interest therein based on title” has been used. “Title” could be perfected by adverse possession, as has been held in a catena of decisions. Further, there was a conferral of right by adverse possession.

Similarly, in case of infringement of any other rights, a plaintiff who has perfected the title by adverse possession, can sue to question alienation and attempt of dispossession. 

Adverse Possession of Public Property:

Considering the law of adverse possession as has developed vis-à-vis property dedicated to public use, Courts have been loath to confer the right by adverse possession. There are instances when such properties were encroached upon and then a plea of adverse possession was raised. Hence, for properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession. 

Elements of Adverse Possession Reiterated in the Decision:

• Adverse possession necessitates all the three classic requirements to co­exist at the same time, namely, nec ­vie. 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[vi]
• Trespasser’s long possession is not synonym with adverse possession. The owner can take possession from a trespasser at any point in time.
• Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. However, a trespasser cannot tack adverse possession of earlier trespasser.[vii]
• Possession is the root of title and is right like the property. Possession confers enforceable right under Section 6 of the Specific Relief Act. What can be prescribable against is limited to the rights of the holder.

The Way Forward

Although the concept of adverse possession has been lambasted time and again[viii] for being archaic and misused, efforts to eliminate it have not seen the light of day. To consider whether the time had come to repeal it, a questionnaire cum consultation paper[ix] had been issued by the Law Commission in 2012 but no recommendations have been made to date. With this latest decision, the right of possession has been reinforced and neglect of property has been reprimanded. Although, in line with the principle behind the law, this may open floodgates for litigations demanding rights of adverse possession that was not an option earlier. With the changing times, it is important that the concept is revisited by lawmakers and at least the time needed to gain the right through possession be increased to a minimum of 20 years. This would rest the opposition to some extent as it would impose an increased commitment to the property at issue and grant more time to the original owner to make a claim.