Can Adverse Possession Be Used to File a Suit?

The case reached the Supreme Court as Civil Appeal No. 7764 of 2014. It was filed against a judgment dated 27 November 2007 of the High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 946 of 2004. Two special leave petitions, S.L.P.(C) Nos. 8332-8333/2014, were heard along with it. Ravinder Kaur Grewal and her co-appellants were on one side. Manjit Kaur and her co-respondents were on the other.

The judgment as reported does not narrate the family or land history behind this particular appeal. It gives no village, no dates of occupation and no rupee figures for this dispute. What it records is the question the Bench set itself. Can a person who claims title through adverse possession sue for a declaration of title, for an injunction protecting possession, or for restoration of possession after illegal dispossession? That could be dispossession by an owner whose title has been extinguished, or by someone else. The Court added a further question. If the owner sells the land after his title is extinguished, what remedy does the possessor have?

The obstacle was a chain of earlier reasoning, not one neighbour's excuse. In a two-judge decision, Gurudwara Sahab v. Gram Panchayat Village Sirthala, the Supreme Court had noted that even if a plaintiff is found to be in adverse possession, he cannot seek a declaration that it has matured into ownership. Only a person sued as a defendant could use it, as a shield. That decision leaned on the Punjab and Haryana High Court's Gurdwara Sahib Sannauli ruling, which in turn rested on Bhim Singh v. Zila Singh. Two later Supreme Court decisions, State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj and Dharampal (dead) through LRs v. Punjab Wakf Board, followed it.

Senior advocates P.S. Patwalia and Huzefa Ahmadi assisted the Court as amici. Advocate Prem Malhotra appeared for the appellants. Advocates Parveen Kumar Aggarwal and Sanjay Jain appeared for the respondents.

The three-judge Bench did not decide who owned the land. Its last direction was short: "Let the matters be placed for consideration on merits before the appropriate Bench."

Article 65 covers a suit "for possession of immovable property or any interest therein based on title." The twelve-year period runs, in the third column, from "When the possession of the defendant becomes adverse to the plaintiff." The Punjab and Haryana High Court took that wording and drew an inference. Because the article speaks of the defendant's possession, adverse possession must be a plea open only to a defendant.

The Supreme Court found the problem in how that conclusion was reached. In Sirthala, the Court had said there was "no quarrel" with the proposition. The three-judge Bench noted that the point was not contested there. No decision of a larger or coordinate bench taking the opposite view was placed before the two judges. It also noted that Sannauli contained no independent reasoning of its own. It simply relied on the same High Court's earlier Bhim Singh ruling.

Before Sirthala, the Bench observed, no Supreme Court decision had held that a plaintiff cannot sue based on adverse possession. Several had gone the other way. Sarangadeva Periya Matam (1966) let a plaintiff recover land from a religious institution after his adverse possession had extinguished its title. Nair Service Society, Kshitish Chandra Bose and Padminibai were also treated as showing that title by adverse possession can be asserted by someone suing.

The Bench held that Article 65 contains no bar on a plaintiff who has perfected title by adverse possession. The statute does not define adverse possession. It is a common law concept, and the 12-year period is what the law of limitation prescribes. The Court said the law of limitation "only deals with limitation to sue and extinguishment of rights."

On the nature of the title, the Court said the operation of the statute of limitation in giving a title is merely negative. It extinguishes the right and title of the dispossessed owner. It 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 core holding is in paragraph 61:

• The "shield only" inference was closed. The Court called the High Court's inferential reading of the third column of Article 65 impermissible. It said 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."
• Sirthala, Mandir Shri Lakshmi Siddh Maharaj and Dharampal were overruled. The Court held that a decision based on concession cannot be treated as precedent, and that Sirthala's one-line observation was "palpably incorrect." Dharampal and the Uttarakhand case had relied on it without independent discussion.

The Bench also made two points on dispossession. A person in possession cannot be ousted except by due procedure of law. Where someone takes the law into his own hands, a possessory suit can be maintained under Article 64 even before title by adverse possession has ripened. On land reserved for public utility, the Court observed that it is desirable that rights should not accrue. It advised that the statute of limitation make this clear for property dedicated to a public cause.

• Prove five facts, because the Court names them. The judgment gives no document checklist. It does quote a test: the claimant must show the date he came into possession, the nature of his possession, whether the other party knew of it, how long it continued, and that it was open and undisturbed. Gather whatever records establish each of these. In the cases the Court reviewed, claimants relied on a hukumnama, a ryotwari patta, and records showing the authorities treated them as owner. If you claim through a parent, purchaser, legatee or assignee, also collect the papers showing that link and the identity of the same property.
• Plead the starting date in the plaint. The Court repeated that a person claiming adverse possession must plead and prove the date from which his exclusive, continuous and undisturbed possession began. The plea must also show a hostile claim communicated to the real owner's knowledge.
• Choose the right suit. The Court speaks of a civil suit. If you hold perfected title and are dispossessed, sue under Article 65 on that title. If you were just thrown out by force, a possessory suit under Article 64 remains available. The judgment says a suit based on title under Article 65 can be filed within 12 years of the start of adverse possession, if any, set up by the defendant. It does not name a particular court beyond the suit itself.
• Avoid the biggest mistake: relying on long possession alone. The Bench held that "Adverse possession cannot be decreed on a title which is not pleaded." It also approved the warning from S.M. Karim v. Mst. Bibi Sakina: "Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."