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Does adverse possession also give right to sue for title? Supreme Court says yes

Does adverse possession also give right to sue for title? Supreme Court says yes

Shruti Mahajan

A person who has “perfected title” over an immovable property through adverse possession can maintain a suit under Article 65 of the Limitation Act, 1963 for declaration of title and for the restoration of his possession in the event of dispossession, the Supreme Court held.

A three-judge Bench of Justices Arun Mishra, S Abdul Nazeer, and MR Shah was considering a question pertaining to title and possession of a plaintiff over an immovable property by virtue of adverse possession. The question under scrutiny was,

“whether Article 65 of the (Limitation) 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?”

Answering this in the negative, the Court held that Article 65 of the Limitation Act will be no bar for maintainability of a suit by the plaintiff against illegal dispossession and infringement of his right by the owner of the property whose title stands extinguished on account of plaintiff’s adverse possession.

In answering the issue, the Court overruled the 2014 decision in the case of Gurudwara Sahab v. Gram Panchayat Village Sirthala. In that judgment, the Court had held that a declaration of title cannot be sought based on adverse possession. While adverse possession can be used as a “shield” by a defendant against dispossession, it cannot be used as a “sword” by a plaintiff seeking title declaration.

It considered a plethora of judgments rendered by the Supreme Court as well as Privy Courts and English Courts on this issue which had held otherwise and arrived at the conclusion that Article 65 of the Limitation Act poses no bar on a person who has “perfected title” by adverse possession from suing to protect his rights. The Court observed,

“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, he can be evicted by such a person by filing of suit under Article 65 of the Act.”

The term “adverse possession” has not been defined in any Statute and is a common law principle. What the Limitation Act, however, does is prescribe the statutory period for possession to turn into adverse possession from which certain rights for the possessor of the property emanate. It was also pointed out in the judgment that the law does not state whether a person can sue or not based on adverse possession and goes on to add,

“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. “

The Court made it clear that law does not intend to leave a person in adverse possession of a property to be rendered remediless. In case of an attempt to dispossess or sell the property by the owner whose right stood extinguished, the possessor can very well file a suit for protection of his rights.

Rejecting the submissions against the right to sue, the Court said that a person in possession of a property cannot be dispossessed without due process of law and adverse possession can be used both as a sword as well as a shield.

[Read Judgment]