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Property Lawyer: The SC three judges bench holds that a suit on the basis of adverse possession is maintainable - adverse possession now can be used as a sword.

Supreme Court of India

Justice Arun Mishra, Justice S. Abdul Nazeer and Justice M R Shah

The SC three judges bench was considering the correctness of recent judgments of two judges benches of the SC, whereby, it was held that the suit on the basis of adverse possession seeking declaration or permanent injunction is not maintainable as the adverse possession can be used as a shield, not as a sword.

The SC {Ravinder Kaur Grewal & Others vs Manjit Kaur & Others} today overrules the recent judgments of two judges benches in Gurudwara Sahab v. Gram Panchayat Village Sirthala,    State of Uttarakhand v. Mandir Shri Lakshmi Siddh   Maharaj and Dharampal (dead) through LRs v. Punjab Wakf Board as not laying down correct law.

It was essentially held:

"56.Possession is the root of title and is right like the property. As ownership is also of different kinds of viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable ownership. Limited ownership or limited right to property may be enjoyed by a holder.  What can   be   prescribable   against   is   limited   to   the  rights   of   the   holder. Possession confers enforceable right under Section 6 of the Specific Relief Act.  It has to be looked into what kind of possession is enjoyed viz. de facto   i.e.,   actual,   ‘de   jure   possession’,   constructive possession, concurrent possession over a small portion of the property. In case the owner is in symbolic possession, there is no dispossession, there can be formal,   exclusive   or   joint   possession. The   joint possessor/co-­owner possession is not presumed to be adverse. Personal law also plays a role to construe nature of possession.

57.The adverse possession requires all the three classic requirements to co­exist at the same time, namely, nec­vi i.e. adequate in continuity, nec­clam  i.e., adequate in publicity and nec­precario i.e. adverse to a competitor, in denial of title and his knowledge.  Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it.  Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required.  Trespasser’s long possession is not synonym with adverse possession.  Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession.   The owner   can   take   possession   from   a   trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession. "

The SC holds that a person in possession cannot be dispossessed by another person,  except by due process 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. Therefore, in consequence, any person who has perfected title by way of adverse possession can file a suit for restoration of possession in case of dispossession. It was held that a plaintiff who has perfected the title by adverse possession can sue and maintain a suit. It was further made clear that in case of public properties, the rights cannot be claimed or accrue by adverse possession.

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