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Adverse Possession
ADVERSE POSSESSION- A SHIELD AS WELL AS A SWORD
What Is Adverse Possession?
Adverse possession is a legal doctrine that allows a person who possesses or resides on someone else's land for a certain period of time to claim legal title to that land. If the claimant successfully proves adverse possession then he/she is not mandated to pay the owner for the land.
In 2019, The Supreme Court clarified in its decision in Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors that a person claiming title by the virtue of adverse possession can maintain a suit for ownership of the land or declaration of title. The issue raised before the honourable court was, "whether Article 65 of the Limitation Act, 1963 ('the Act') only enables a person to set up a plea of adverse possession as a shield and such a plea cannot be used as a sword by a plaintiff to protect the possession of the immovable property or recover it in case of dispossession?"
Adverse Possession as a Shield:
In the case of Gurudwara Sahib v. Gram Panchayat Village Sirthala, the bench observed that a party could use the plea of adverse possession only as a defence or shield, when arrayed as a defendant in proceedings initiated against it.
The plaintiff, Gurudwara Sahib, sought a declaration that he had acquired ownership of a property by adverse possession. He also was successful in getting injunctive reliefs against the defendant from being dispossessed from the property. The trail court established that the plaintiff was in adverse possession of the property in question and went on to grant injunctive relief from being dispossessed by the defendant.
The court held that the plaintiff could not get the title over the suit property by adverse possession since the plea can "only be used as a shield and not as a sword". This was further accepted by the High Court.
On appeal to the Supreme Court, It was declared that "even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership".
This way the court trusted on the trial court and High Court on Punjab & Haryana High Court's decision in Gurudwara Sahib Sannauli v. State of Punjab. Moreover, these High Courts observations were based on the point embraced in two of its earlier judgements in Bhim Singh and Ors. v. Zile Singh and Ors. And State of Haryana v. Mukesh Kumar and Ors.
The Supreme court in the decisions following this case repeated its views expressed in Gurudwara Sahib. It was evidently settled that a party cannot seek any proclamation as to ownership by the way of adverse possession and only use this plea as a defence in proceedings initiated against it. Basically, it became a strong precedent.
Adverse Possession as a Sword:
This doctrine simply states that the possessor who maintains and improves the land has a superior claim to the land than the owner who neither visits or cares for the land.
The Supreme Court on examining the rightness of the laws laid in Gurudwara Sahib, started looking or considering the previous decisions of the Privy Council and English Courts. Interestingly, these earlier decisions were in favour of giving title to the adverse possessor. In short declaration of title, restoration of possession founded on the basis of adverse possession were held to be maintainable. It came into notice that in Gurudwara Sahib, contrary views were not placed before the court for its consideration.
Further, In Bhim Singh’s case the Supreme Court held that the language did not in any manner suggest that a suit cannot be filed by the plaintiff based on the title acquired by adverse possession and observed that the inferential process of interpretation employed by the High court was not permissible.
The SC then overruled the decision in Gurudwara Sahib as well as the subsequent judgements of the Supreme Court which relied on it as it regarded such a decision to be a decision based on compromise. The court also observed that the right conferred by virtue of adverse possession "may be a negative right but (is) an absolute one".
The court further held that a suit "for possession of immovable property or any interest therein based on title" provided for in Article 65 of the Act would also include title acquired by plaintiff by way of adverse possession, thus, entitling a plaintiff to maintain a suit on the basis of adverse possession.
The 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 as the owner cannot be left remediless. To conclude, the court recognised plea of adverse possession not just as a shield (by a defendant), but also as a sword (by a plaintiff). It also clarified that it is a heritable and a transmissible right.
It was advised that in respect of properties dedicated to public cause, an exception must be carved out in the statute.
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