Ravinder Kaur Grewal v Manjeet Kaur (2019)

For many years the accepted position was that adverse possession could be used only as a shield — pleaded by a defendant to resist an owner's suit for possession — and never as a sword by a plaintiff. This decision holds the opposite, and expressly overrules the line of authority to the contrary. It is therefore the current law on the last head of the syllabus, the acquisition of ownership by possession.

It is also the fullest modern statement of the three classic requirements of adverse possession, and of the rules on tacking and on property dedicated to public use.

Whether a person claiming title by virtue of adverse possession can maintain a suit under Article 65 for a declaration of title and a permanent injunction protecting his possession, restraining the defendant from interfering with it, or for restoration of possession where he has been illegally dispossessed — either by the defendant whose title has been extinguished by the plaintiff's adverse possession, or by some other person. Put shortly: does Article 65 only enable adverse possession to be set up as a shield by a defendant, so that it cannot be used as a sword by a plaintiff? And if so, is such a person remediless?

Adverse possession may be used as a sword as well as a shield. The court held that a plea of acquisition of title by adverse possession may be taken by a plaintiff under Article 65, and that there is no bar under the Limitation Act 1963 to suing on that basis where any right of the plaintiff is infringed. The decisions in Gurudwara Sahab v Gram Panchayat Village Sirthala, and the decisions relying on it in State of Uttarakhand v Mandir Shri Lakshmi Siddh Maharaj and Dharampal v Punjab Wakf Board, were held not to lay down the law correctly and were overruled.

Possession, once perfected, is a right and not merely a defence. A person in possession cannot be ousted by another person except by due procedure of law. Once the twelve-year period of adverse possession is over, even the owner's right to eject him is lost, and the possessory owner acquires the right, title and interest possessed by the outgoing owner against whom he has prescribed. The consequence is that once that 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 scope of Article 65.

The remedies that follow. A person who has perfected title by adverse possession may file a suit for restoration of possession if he is dispossessed. Where he is dispossessed by another person taking the law into his own hands, a possessory suit under Article 64 can be maintained even before title by adverse possession has ripened. Where he is dispossessed by the owner after the owner has lost his right, he may evict the owner by pleading adverse possession; and he may evict any other person who has dispossessed him, unless that person has himself perfected title against him by adverse possession. By the perfection of title on the extinguishment of the owner's title, a person cannot be left remediless.

Adverse possession requires all three to co-exist at the same time:

• nec vi — adequate in continuity;
• nec clam — adequate in publicity; and
• nec precario — adverse to a competitor, in denial of his title and to his knowledge.

The possession must be visible, notorious and peaceful, so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the footing that with due diligence he would have known.

Further propositions from the same passage, each of which is examinable:

- Adverse possession cannot be decreed on a title which is not pleaded. It must be pleaded. - Animus possidendi under a hostile colour of title is required. - A trespasser's long possession is not a synonym for adverse possession. A trespasser's possession is construed to be on behalf of the owner, and casual user does not constitute adverse possession; the owner can take possession from a trespasser at any point of time. - The joint possession of a co-owner is not presumed to be adverse. - Where the owner is in symbolic possession, there is no dispossession. - Personal law may also bear on the construction of the nature of possession.

Adverse possession is heritable, and there can be tacking of adverse possession by two or more persons, the right being transmissible; it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking depends on conditions: the possession tacked may be that of a purchaser, legatee or assignee; the person must be claiming through the person whose possession is sought to be tacked; and the identity of the same property under the same right must hold. Two distinct trespassers cannot tack their possession.

Courts have been reluctant to confer rights by adverse possession over property dedicated to public use, which is often encroached upon and then defended by such a plea. On land reserved for public utility it is desirable that no rights should accrue, and the court observed that it would be advisable for the statute of limitation to say so expressly.

The judgment traces the doctrine from the Code of Hammurabi, through Roman law, to the common law inherited in India: the consolidation of ownership under the Crown in 1066, the Statute of Westminster of 1275 at a time when land records were scarce and literacy rare so that possession was the best evidence of ownership, the Statute of Limitation of 1639 fixing twenty years for the recovery of possession, the Statute of Wills of 1540 and the Statute of Tenures of 1660. The underlying idea is utilitarian: land in use is more valuable than idle land, the doctrine allows society as a whole to benefit while giving the true owner a sufficient period to recover, and it cures clouds on title as memories grow dim.

Build the answer on the statutory scaffolding first. Section 27 extinguishes the right on the determination of the period limited for a suit for possession. Article 65 gives twelve years for a suit for possession based on title, running from when the defendant's possession becomes adverse to the plaintiff — so the burden is on the defendant to show when his possession became adverse. Article 64 gives twelve years from the date of dispossession for a suit based on previous possession and not on title. Then give the three classic requirements, and then this case's holding that the perfected title may be used as a sword.

Pair the case with Rajender Singh v Santa Singh (1973) for the proposition that possession which begins as permissive does not become adverse without an overt act evidencing hostile animus.

The holding is about a perfected title, not about possession in progress. Until the twelve years are complete, the possessor has no title to assert; what he has is the possessory remedy under Article 64, and s. 6 of the Specific Relief Act, against anyone who takes the law into his own hands. Keep the two stages distinct in an answer.