The Supreme Court has held that a plea of acquisition of title by adverse possession can be taken by the plaintiff.
Facts: Plaintiff filed a suit for declaration and injunction seeking a decree that he was owner in possession of land by way of adverse possession. The trial court decreed the suit in favour of the plaintiff. On an appeal, the Additional District Judge set aside the trial court’s order on the grounds that the remedy of adverse possession is not available to the appellant/plaintiff and the possession of a mortgagee cannot be treated as adverse to the true owner.
Ruling of High Court : The High Court dismissed the second appeal on the grounds that the plaintiff cannot sue for title on the basis of adverse possession. The question of limitation and whether a mortgagee can claim adverse possession was not examined and answered.
Setting aside the said Judgment, the bench comprising of Justices NV Ramana, Sanjiv Khanna and Krishna Murari said:
We are of the view that the High Court dismissed the second appeal without framing any question of law and simply by relying on the judgment rendered by it in Bhim Singh and others (supra) wherein it has been held that plea of adverse possession is available only to a defendant and that a suit on the basis of adverse possession would not lie. However, the High Court has not gone into other issues. Taking into consideration the fact that this Court in the Ravinder Kaur Grewal case (supra) has considered the judgment in the Bhim Singh case (supra) and explicitly overruled it, we are of the considered view that the impugned order passed by the High Court should be set aside and the matter be remanded to the High Court for fresh consideration in accordance with law.
The Supreme Court 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. The bench comprising Justice Arun Mishra, Justice S. Abdul Nazeer and Justice MR Shah observed that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff.
It was observed thus: “We hold 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. In our opinion, consequence is 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 ken of Article 65 of the Act 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 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 owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit When we consider the law of adverse possession as has developed vis¬à-vis to property dedicated to public use, courts have been loathed to confer the right by adverse possession