The Sword of Adverse Possession

My Lord, A plaintiff claiming title by adverse possession can maintain a suit under Article 65 of The Limitation Act, 1963 for declaration of title?


Historically, adverse possession is a pretty old concept of law. It is a useful but an often-criticized concept. It is a hostile possession, clearly asserting hostile title in denial of the title of the true owner. The nature of title acquired by adverse possession has been discussed in Halsbury’s Laws of England, Fourth Edition, Vol. 28, Paragraph 785. It has been observed, 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. It is a ‘good title’, both at law and in equity.

A large number of decisions of Supreme Court and various other decisions of Privy Council, High Courts and of English Courts have been discussed: Gunga Govind Mundul, 11 M.I.A. 212; Tichborne, (1892) 67 LT 735; Toltec Ranch Co., 191 U.S. 532, 542 (1903); Perry v. Clissold, (1907) AC 73; Midnapur Zamindary Company Ltd., AIR 1924 PC 144; Twinberrow, 1930 All ER Rep 342 (DC); Lala Hem Chand, AIR 1942 PC 64; Mohammed Fateh Nasib, AIR 1948 PC 76; Fairweather, (1962) 2 AER 288 (HL); S.M. Karim, AIR 1964 SC 1254; Sarangadeva Periya Matam, AIR 1966 SC 1603; Lallu Yashwant Singh, AIR 1968 SC 620; Nair Service Society Ltd., AIR 1968 SC 1165; Somnath Burman, (1969) 3 SCC 129; Dalhousie Institute Society, AIR 1970 SC 1778; Padminibai, AIR 1979 SC 1142; Kshitish Chandra, (1981) 2 SCC 103; Harphool Singh, (2000) 5 SCC 652; Balkrishan, (2001) 2 SCC 498; T. Anjanappa, (2006) 7 SCC 570; P.T. Munichikkanna Reddy, (2007) 6 SCC 59; Annakili, (2007) 14 SCC 308; Krishnamurthy S. Setlur, (2007) 3 SCC 569; Des Raj, (2007) 9 SCC 641; Hemaji Waghaji Jat, (2009) 16 SCC 517; Mandal Revenue Officer, (2010) 2 SCC 461; Mukesh Kumar, (2011) 10 SCC 404; Ram Daan, (2014) 8 SCC 902.

Although it was opined, 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, it is apparent, whether the plaintiff can indeed take the plea of adverse possession was not contested in Gurudwara Sahab v. Gram Panchayat Village Sirthala (2014) 1 SCC 669; none of the plethora of the aforesaid decisions were placed; there was no independent consideration of the question. It is pertinent to mention, Gurudwara Sahab has been relied upon in State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579 and again in Dharampal v. Punjab Wakf Board, (2018) 11 SCC 449. Gurudwara Sahab and the decisions relying on it cannot be said to be laying down the law correctly. Thus, they are hereby overruled. In our opinion, consequence is, 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 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 a person has perfected his title by adverse possession and after the extinguishment of the title of the true owner, he cannot be successfully dispossessed by a true owner as the owner has lost his right, title and interest. Law never intends a person who has perfected title to be rendered remediless; to be deprived of filing a suit under Article 65. In Article 65, the expression ‘title’ would include the title acquired by the plaintiff by way of adverse possession. There is no bar under Article 65 or any of the provisions of The Limitation Act, 1963 as against a plaintiff, who has perfected his title by virtue of adverse possession, to sue to evict a person to protect his possession.

Hon’ble Justice Arun Mishra, Ravinder Kaur Grewal v. Manjit Kaur, [Civil Appeal No. 7764 of 2014].