The Supreme Court’s Judgment on Adverse Possession….

                                                  Report by- Riddhima Bhadauria 

The supreme court holds that a person in possession cannot be dispossessed by another, except by due process of law. In this case the supreme court has observed that a memorandum of family settlement is not required to be registered and is binding on the parties and it is being clarified that a person claiming title by virtue of adverse possession can maintain a suit for declaration of title. The bench consisted of Justice AM Khanwilkar and Dinesh Maheshwari.

Issue  involved-

Whether   the document Exhibit P­6 was required to be registered as interest in immovable property worth more than Rs.100/­ was transferred in favour of the plaintiff? 

Petitioner’s contention(represented by learned counsel Manoj Swarup)

 The suit was filed by the  Harbans   Singh,     against   his   real   brothers   Mohan Singh    and   Sohan   Singh  for a  declaration  that he was the  exclusive owner   in   respect   of   land   admeasuring   11   kanals   17   marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Road   and   other   properties. His land includes the construction thereon (16 shops, a samadhi of his wife,one service station with boundary wall).

The trial court judgement-

ssssIn   view   of   my   discussion   on   various   issues above, the suit of the plaintiff partly succeeds and partly fails.   Therefore, his suit is decreed partly to the extent that he is declared to be owner in possession of khasra no. 935/1/1/2 (5­18) and to the extent of ½ share in khasra   no.   935/1/1/1   (5­19)   with   construction   there upon.     Keeping   in   view   the   relationship   between   the parties and the circumstances of the case, no order as to cost.     Decree   sheet   be   prepared   accordingly.     File   be consigned to the record room.”

 Harbans Singh has decided to file suit for declaration   praying   for   a   decree   that   he   was   the   owner   in possession   of   the   land   admeasuring   11   kanals   17   marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Road. During the pendency of the trial he expired.   The   first   appellate   Court declared the original plaintiff as owner of the suit land along with constructions including 16 shops, a service station and boundary wall with samadhi in the land.

The appellate court order-

 The appeal is allowed and the judgment passed by the learned trial court is modified and the suit of the plaintiff is decreed. The plaintiff is declared owner of the land measuring 11 kanals 17 marlas composed in rectangle and killa no. 935/1/1/1 (5­19), 935/1/1/2 (5­18) situated in Mehlan Road,   Sangrur   along   with   construction   including   16 shops, a service station and boundary wall with samadh in the land.  In view of the peculiar circumstances of the case the parties are left to bear their own costs.  Decree sheet be prepared and copy of the judgment be placed on the   file   of   the   learned   trial   court   and   the   same   be returned   immediately   to   the   successor   court   of   Smt. 6 Harreet Kaur PCS, the then Civil Judge (Junior Division), Sangrur.    

 The   High   Court  set   aside   the conclusion recorded by the first appellate Court and opined that the document which, for the first time, creates a right in favour of plaintiff   in   an   immovable   property   in   which   he   has   no   preexisting right would require registration, being the mandate of law

Defendant’s contentions(represented by learned counsel Praveen kumar aggarwal)

Mohan singh and sohan singh has rightly contend that the High Court has rightly considered the document Exhibit P­6 as containing terms and recitals of family settlement and for which reason it was essential to get the same registered. It is urged that there was no pre existing title in favour of the plaintiff   in   respect   of   the   suit   property,   as   the   same   was purchased   in   the   name   of   concerned   defendant   by   way   of   a registered sale deed. defendants in the written statement that the suit property was jointly owned by Mohan Singh   (original   defendant   No.   1)   and   Sohan   Singh   (original defendant No. 2).  The contesting respondents have reiterated the stand that there was no family settlement in 1970, as stated by the   plaintiff   and   that   the   signature   of   the   defendant   No.   2 appearing   in   document   Exhibit   P­6   is   forged   and   fabricated. The high court restored the partial decree passed by the trial Court on the conclusion that the document Exhibit P­6 is inadmissible in evidence, as it has not been registered despite the transfer of title in immovable property worth more than Rs.100/­(substantial question of law answered).

Question of law involved?

Whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of limitation act for declaration of title and for a permanent injunction seeking the protection of his possession thereby restraining the defendant from interfering in the possession or for restoration of possession in case of illegal dispossession by a defendant whose title has been extinguished by virtue of the plaintiff remaining in the adverse possession or in case of dispossession by some other person?

The question of law was answered by the three judge bench in favour of the plaintiff. The 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. 

Article 65 of limitation act prescribes a timeline of 12 years, within which an aggrieved person may file a suit for recovery of possession of immovable property or any interest therein based on proprietary title (i.e. title based on documents). After an uninterrupted 12 years of possession, the person is said to have perfected his title over the property by way of adverse possession provided he proves that his possession is peaceful, open and continuous. The limitation Act further says that in case no suit is filed within the timeline of 12 years as provided under Article 65, the person extinguishes his right to file a suit for recovery of possession. 

     Cases referred to-

• Bhoop Singh vs. Ram Singh Major & Ors. 
• Hans  Raj  &  Ors.   vs. Mukhtiar Singh  
• Hari Shankar Singhania & Ors. vs. Gaur Hari Singhania & Ors.  
• Jagdish   &   Ors.   vs.   Ram   Karan   &   Ors.

SC order restoring the order of the first appellate court.

The 3-judge bench of Arun Mishra, SA Nazeer and MR Shah, JJ has held that the Article 65 of Limitation Act, 1963 not only enables a person to set up a plea of adverse possession as a shield as a defendant but also allows a plaintiff to use it as a sword to protect the possession of immovable property or to recover it in case of dispossession. The Court held 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. It was opined that the High Court committed manifest error in interfering with and in particular reversing the well-considered decision of the first appellate Court, which had just concluded that the document executed between the parties was merely a memorandum of settlement, and it did not require registration. The order of the high court was set aside and the judgment and decree passed by the first appellate Court were restored in favour of the plaintiff (appellants).