Code of Civil Procedure, 1908 (V of 1908), Section 9 – Limitation Act, 1963 (36 of 1963), Section 27 -- Suit/ Plea by plaintiff for adverse possession – Maintainability of -- High Court allowed the second appeal only on the ground that a plea of the adverse possession cannot be taken by the plaintiff -- Review application also dismissed – Settled law is that a plaintiff can seek declaration of title by adverse possession -- Judgment and order of the High Court in RSA and Review Application set aside – Appeals allowed.

(Para 4-6)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Adverse possession plea by way of amendment -- Civil Suit for possession was instituted in the year 2014 – Defendants/ petitioner had taken a specific stand in the written statement of their being owners in possession of the suit land on the basis of an oral sale -- Parties have already led evidence -- Application seeking amendment of the written statement at the stage of arguments, dismissed.

(Para 4, 5)

A. Constitution of India, Article 226 -- Encroacher of government land – Discretionary relief in writ -- Any person, who approaches High Court seeking a discretionary relief, should come with clean hands -- Petitioners, pertinently, have no title to the land which they have occupied, and are illegally occupying the government property – Court will not lend its hands, and come to protection of such persons, who are encroaching and illegally occupying the government property – High court cannot pass orders to protect or advance an illegality.

(Para 4)

B. Limitation Act, 1963 (36 of 1963), Section 27 -- Encroachment over government land – Adverse possession -- Plea of adverse possession could not have been raised by the petitioners, as they are occupying government land, i.e. public land, wherein each member of the public has an interest, including the petitioners -- They cannot claim hostile possession over such land, hostile to themselves, and to the public at large -- When the encroached land is a public land, mere inaction on the part of the public functionaries, who have the responsibility of taking action for removal of encroachment, cannot take away the right of public at large over public property -- Public functionaries discharge a public trust in their official functioning -- They act as trustees qua public assets, in respect whereof they have authority to protect -- The breach of trust by the trustee, cannot be the detriment of the beneficiary.

(Para 8)

A. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 6A -- Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Counter claim for possession -- Adverse possession can be claimed only against true owner -- Plaintiff having taken the plea of adverse possession could not have denied the title of defendants -- Plaintiff having failed to prove issue No.1 (adverse possession) in his favour, was bound to fail in his pursuits to contest the claim put forth by defendants No.1 and 2 by way of counter claim.

(Para 4, 10, 11)

B. Code of Civil Procedure, 1908 (V of 1908), Section 11 -- Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Res-judicata -- Finding that the plaintiff had failed to prove acquisition of title over the suit land by way of adverse possession will operate as res judicata between the same parties in all other proceedings in which the same issue arises.

(Para 9)

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Onus to proof -- It is trite law that once the title of the property has been upheld namely a finding has been recorded by a judgment and decree in the name of plaintiff in an earlier suit, in such circumstances, the onus to prove acquisition by adverse possession lay on the defendant.

(Para 7)

A. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Adverse possession – Permissive possession -- Hostile possession -- A person in permissible possession over the suit land cannot become owner only on the basis of long possession -- However, in case the said person starts proclaiming to be owner to the knowledge of the true owner, even if his possession in the beginning was permissive, it will become adverse, the moment he starts proclaiming to be in hostile possession.

(Para 25)

B. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Adverse possession – Permissive possession -- Hostile possession -- Sale by attorney when owner already died – Moment the sale deeds in favour of defendants executed by the attorney of the owner, became null and void, on account of the fact that owner had already expired, the possession of the defendants became hostile, as they no longer could be stated to be in permissive possession on the basis of the prior mortgage -- Defendants were still continuing to be in possession on the basis of these null & void sale deeds, they perfected their title on the expiry of statutory period of limitation, as their possession was open, continuous, hostile and adverse to the title to the true owners/natural heirs owner.

(Para 26)

A. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Inception of -- Adverse possession must be hostile to the title of the owner and must begin with his wrongful dispossession -- Essential ingredient to establish the plea of adverse possession is that the person taking that plea must admit to the title of the owner.

(Para 8)

B. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Permissive possession -- Defendants claimed adverse possession over the suit land, however, in written statement pleaded that their predecessors-in-interest came in possession of the suit land by an oral family settlement which took place with the fore-fathers of the plaintiffs, hence evidently they are implying permissive possession of the suit land – Possession did not commence with the wrongful dispossession of the plaintiffs, which is one of the pre-requisites and essential ingredients to maintain the plea of adverse possession -- Adverse and permissive possession are mutually inconsistent with each other.

(Para 8)

Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- Co-sharer’s possession – Nature of -- Possession of one co-sharer is deemed to be possession of all, unless and until the said co-sharer can establish exclusive possession with the intention to oust the right of the other co-sharer -- Appellants has not been able to point out any evidence, which shows ouster – Appeal is without any merit and is dismissed.

(Para 1, 4-6)

A. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- A second appeal only lies on a substantial question of law -- If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal -- It was not open to re-agitate facts or to call upon the High Court to re-analyze or re-appreciate evidence in a Second Appeal -- Existence of a “substantial question of law” is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.

(Para 25, 26)

B. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way -- To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.

(Para 32, 33)

C. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- Principles summarised:

(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.

(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

(Para 37)

D. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- A decree of possession does not automatically follow a decree of declaration of title and ownership over property -- It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.

(Para 46)

E. Specific Relief Act, 1963 (47 of 1963), Section 5 -- Suit for possession – A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation -- He must show that he had possession before the alleged trespasser got possession.

(Para 51)

F. Possession Follows Title -- Maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all -- The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

(Para 52)

G. Limitation Act, 1963 (36 of 1963), Section 3 -- Suit for possession – Limitation – Ground of -- A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963 -- Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act -- Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.

(Para 53)

H. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Suit for possession -- Regular Second Appeal – Substantial question of law -- In the absence of any whisper in the plaint as to the date on which the Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Plaintiff the relief of recovery of possession, more so when the Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

(Para 55)

I. Code of Civil Procedure, 1908 (V of 1908), Section 100 – Regular Second Appeal – Substantial question of law -- Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal cannot satisfy the mandate of Section 100 of the CPC.

(Para 59)

A. Limitation Act, 1963 (36 of 1963), Article 65, Section 27 -- Adverse possession by trespasser – Possession as trespasser is not adverse nor long possession is synonym with adverse possession -- Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession -- Owner can take possession from a trespasser at any point in time.

(Para 53, 57)

B. Limitation Act, 1963 (36 of 1963), Section 27 – Adverse possession -- Any property in Section 27 would include corporeal or incorporeal property.

 (Para 55)

C. Possession and title – Meaning of -- 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 -- 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.

(Para 56)

D. Limitation Act, 1963 (36 of 1963), Section 27 – Adverse possession – Joint possession / Co-owner -- In case the owner is in symbolic possession, there is no dispossession, there can be formal, exclusive or joint possession -- Joint possessor/co-owner possession is not presumed to be adverse -- Personal law also plays a role to construe nature of possession.

(Para 56)

E. Limitation Act, 1963 (36 of 1963), Section 27 – Adverse possession:

--     Adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec-vi i.e. adequate in continuity, nec-clam i.e., adequate in publicity and nec-precario 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.

--     Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one.

–      It confers a perfected right which cannot be defeated on reentry except as provided in Article 65 itself.

--     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.

–      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.

(Para 57-59)

F. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Limitation Act, 1963 (36 of 1963), Article 65, Section 27 -- Adverse possession – Acquisition of title – Right to sue -- 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.

(Para 61)

A. Limitation Act, 1963 (36 of 1963), Section 27 --- Adverse possession -- A mere possession or permissive possession does not demonstrate spectrum of adverse possession.

(Para 5)

B. Limitation Act, 1963 (36 of 1963), Section 27 --- Adverse possession – Proof of -- A party claiming adverse possession must prove that his possession is “nec vi, nec clam, necprecario” i.e. peaceful, open and continuous and it should be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner -- It must start with a wrongful disposition of the original owner and is actual, visible, exclusive, hostile and continued over the statutory period.

(Para 5)

C. Limitation Act, 1963 (36 of 1963), Section 27 --- Adverse possession – Plea of -- Plea of adverse possession is not a pure question of law, rather it is a mixed question of law and facts -- A person who claims adverse possession, must show; (a) On what date, he came into possession; (b) What was the nature of his possession; (c) Whether the factum of possession was known to other party (d) How long his possession had continued; (e) His possession was open and undisturbed -- Plea of adverse possession has no equities rather this right has some instinct of piratical rights – The person has to plead from what date his possession became adverse, and he must disclose the necessary ingredients in his pleadings viz. date, nature of possession, factum of possession, how long they remain in possession and that their possession was open and undisputed.

(Para 7)

D. Limitation Act, 1963 (36 of 1963), Section 27 --- Adverse possession – Simultaneous plea -- Plaintiff cannot breath hot and cold in the same breath -- On the one hand, plaintiff claimed the property to be owned and possessed by him on the strength of oral purchase by his father and at the same time he has claimed the property on the strength of adverse possession -- Both the pleas cannot go simultaneously.

(Para 8)

A. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- Co-owners/brothers – Where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwise -- Mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.

(Para 22)

B. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- Co-owners/brothers -- Both the parties to the suit did not know as to how much land was in the exclusive possession of the plaintiff and defendants -- It was only when the plaintiff got the suit land measured through the revenue department in the year 1983, he came to know that some portion of the land, which had fallen to his share was in possession of the defendants -- Plaintiff filed a suit in the year 1992 against the defendants for declaration and injunction and in the alternative also claimed possession of the suit land -- Suit was, therefore, filed well within the period of 12 years from the date of knowledge -- A plea of adverse possession was not available to the defendants.

(Para 22-24)

A. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 13(3A) -- Objection u/s 13(3A) of SARFAESI Act – Communication of rejection – Requirement of -- Court see no reason to marginalize or dilute the impact of the use of the imperative ‘shall’ by reading it as ‘may’ -- Word ‘shall’ invariably raises a presumption that the particular provision is imperative -- A provision which requires reasons to be furnished must be considered as mandatory -- Such a provision is an integral part of the duty to act fairly and reasonably and not fancifully -- The provision must nonetheless be treated as ‘mandatory’.

 (Para 28-31)

B. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 13(3A) – Constitution of India, Article 226 -- Objection u/s 13(3A) of SARFAESI Act – Non-communication of rejection – Writ jurisdiction -- Creditor was induced by the debtor not to take action against them through assurances and promises -- Many opportunities were granted by the creditor to the debtor to repay the debt which were all met by proposals for extension of time -- Eventually, the debtor even executed “A Letter of Undertaking acknowledging the right of IFCI to sell the assets in the case of default – Held, failure to furnish a reply to the representation is not of much significance since the Court is satisfied that the creditor has undoubtedly considered the representation and the proposal for repayment made therein and has in fact granted sufficient opportunity and time to the debtor to repay the debt without any avail -- Debtor is not entitled to the discretionary relief under Article 226 of the Constitution which is indeed an equitable relief.

(Para 34)

C. Acknowledgment of liability – Without prejudice -- Mere introduction of the words “without prejudice” have no significance and the debtor clearly acknowledged the debt even after action was initiated under the Act and even after payment of a smaller sum, the debtor has consistently refused to pay up.

(Para 35, 36)

D. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 13(3A) -- Section 2(zf), 31(i) – Security interest -- Agricultural land – Mortgage of -- Exemption protects agriculturists from losing their source of livelihood and income i.e. the agricultural land, under the drastic provision of the Act – Security interest was created in respect of several parcels of land, which were meant to be a part of single unit i.e. the five star hotel in Goa -- Since no security interest can be created in respect of agricultural lands and yet it was so created, goes to show that the parties did not treat the land as agricultural land and that the debtor offered the land as security on this basis – Land in question is not an agricultural land.

(Para 37-44)

E. Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 31(i) – Challenge to -- Validity of Section 31(i) which in any case deals with security interest created over agricultural land and not agricultural land itself, is an integral part of the Act and cannot be questioned on the ground of legislative competence.

(Para 42,43)

F. Limitation Act, 1963 (36 of 1963), Article 144 – Limitation to take possession -- Adverse possession -- Delivery of symbolic possession amounted to an interruption of adverse possession of a party and the period of limitation for the application of Article 144 of the Limitation Act would start from such date of the delivery.

(Para 47)

G. Transfer of Property Act, 1882 (4 of 1882), Section 8 -- Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (54 of 2002), Section 14 -- Secured Creditor – Auction sale – Application by Creditor for possession -- Maintainability of -- Creditor have only a constructive or symbolic possession -- Transfer of the secured asset by the creditor therefore cannot be construed to be a complete transfer as contemplated by Section 8 of the Transfer of Property Act -- Creditor nevertheless had a right to take actual possession of the secured assets and must therefore be held to be a secured creditor even after the limited transfer to the auction purchaser under the agreement -- Creditor remained a secured creditor in the Act.

(Para 45-50)

A. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession -- A non implementation of an order passed by a competent authority, cannot be interpreted to hold that the possession of a particular person has become adverse, who has continued in possession due to non implementation of the order.

(Para 11)

B. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Limitation Act, 1963 (36 of 1963), Section 27 -- Suit for Adverse possession -- Suit filed by the plaintiff for declaration that he has become owner of the suit property by way of adverse possession is not maintainable. Gurudwara Sahib’s case (2014) 1 SCC 669 relied.

(Para 15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 7, Section 100 -- Scope of Appeal -- Courts have been established to do substantive justice between the parties -- Appellate Courts have been given powers to re-hear the matter and decide the same in accordance with law -- In case of any doubt on a factual position, the Courts have the power to clear its doubt by calling the report from the competent authorities -- A final order was passed by the Consolidation authorities, validity whereof is not being challenged by any of the parties -- Such final order has, however, not been implemented -- Civil Court under Order 7 Rule 7 read with Section 151 CPC has a power to mould the relief in the peculiar facts of the case.

(Para 19)

D. Code of Civil Procedure, 1908 (V of 1908), Order 7 Rule 7, Section 151 – Substantial justice -- Relief to defendant – Power of Civil Court -- Courts are duty bound to grant appropriate relief to do substantial justice between the parties -- Such relief cannot be restricted only to the plaintiffs -- Such relief can always be granted to any of the parties to the litigation -- Civil Court always retains the powers to grant general or other relief so long as it is in the nature of ancillary relief and not in consistent with the case set up by the parties and is based upon same cause of action.

(Para 19)

Code of Civil Procedure, 1908 (V of 1908), Order 6 Rule 17 – Amendment of written statement – Plea of adverse possession by way of amendment -- Application by which the plea of adverse possession was sought to be taken in the written statement at the stage of rebuttal and arguments was dismissed – Held, where the amendment is not bonafide in nature and malafide such amendments are not to be permitted -- Present case is such a case where fraudulently the nature and character of the case is being sought to be changed -- Trial Court is well justified in dismissing the application for amendment.

(Para 1-7)

A. Code of Civil Procedure, 1908 (V of 1908), Section 9 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 13 – Common land of mustarka malkan reserved for garha khad – Civil Suit – Maintainability of -- Plaintiffs had originally filed suit for permanent injunction and claimed ownership of the property as well and asserted his claim on the plea of adverse possession against the gram panchayat – Such a suit is legally barred under Section 13 of the Act.

(Para 3,4, 10)

B. Code of Civil Procedure, 1908 (V of 1908), Section 9 – Limitation Act, 1963 (36 of 1963), Section 27 – Adverse possession -- Suit for declaration of ownership by way of adverse possession – Maintainability of -- Land duly recorded in the name of gram panchayat in the revenue record – Held, plaintiffs cannot seek declaration of ownership on the plea of adverse possession -- Plea of adverse possession is a plea of defence and declaration cannot be sought on the said ground.

(Para 11)

A. Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – If pea of adverse possession is raised, it must be hostile possession, denial and repudiation of other co-owners and same should be established by convincing evidence -- Mere possession of a co-sharer cannot assert as a right and claim ouster -- Plaintiff have not been able to deny the specific averments made in the written statement – If pleadings have not been effectively denied, the party asserting a particular fact, has to discharge the burden by leading direct and cogent evidence – Defendant was held to be exclusive possession of the suit land and was also held to be co-sharer in the suit land to the extent of 1/4^th share – It is sufficient to prove the plea of ouster -- Plaintiff was in the knowledge of the aforementioned fact but did not make any effort to take possession throughout almost for 12 years – 25 houses existing in aforementioned khasra number -- Ouster by way of adverse possession vis-à-vis other cosharers proved.

(Para 21-27)

B. Code of Civil Procedure, 1908 (V of 1908), Order 1 Rule 9 -- Suit for partition – Non-joinder of necessary party -- All co-sharers were not made party – Effect of -- Contention that in a suit for partition, only head of the family is to be impleaded as party is not acceptable -- Suit is not maintainable on the ground of non-joinder of proper and necessary party -- It was obligatory on the part of the plaintiff to ascertain the ownership of the respective shares while filing the suit for partition, and then claim separate possession by way of partition through metes and bounds.

(Para 31)

A. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 – Punjab Land Revenue Act, 1887 (XVII of 1887), Section 44 -- Adverse possession -- Entries in Jamabandi – Effect of -- Plaintiff cannot claim adverse possession but only the defendant can -- When the defendants raise a plea of adverse possession, then title of the plaintiffs is inversely admitted -- Entries in the Jamabandi carries a presumption of truth but this does not mean that a defendant cannot remain successful on his plea of adverse possession which is shown to be open and hostile for over 12 years notwithstanding the revenue entries.

(Para 6)

B. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 -- Adverse possession -- Defence by way of adverse possession is a right which comes into play not just because someone loses his right to reclaim property out of continuous and willful neglect but also on account of possessor's intention to dispossess -- Therefore, the intention implies knowledge on the part of the adverse possessor -- The adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the proper owner.

(Para 7)

C. Limitation Act, 1963 (36 of 1963), Section 27, Article 65 – Suit for possession – Limitation -- Adverse possession -- Plaintiffs who went to the A.C. Grade-I in an application in Form 'L' under the Punjab Security of Land Tenures Act, 1953 to press their rights against the defendants and their predecessors where tenancy was denied which was a hostile act -- Appeal failed in 1969 and therefore possession turned hostile and open in 1969 and continued till presentation of the suit (2001) – Suit dismissed being time barred, upheld – Any legislative changes brought about as a result of the orders of the Supreme Court in Hemaji Waghaji Jat’s case 2009 (16) SCC 517, the right, if any, of the true owner/appellant is kept open, in case legislative changes are brought about as suggested by the Supreme Court to dismantle the archaic law of adverse possession so that it is rationalized on sound principles of statutory and constitutional rights to ownership of property.

(Para 6-9)

Limitation Act, 1963 (36 of 1963), Article 65, Section 27 – Adverse possession -- Death of woman in 1942 – As per custom daughters of deceased alone are entitled to succeed to her intestate properties --  Sons remained in possession of the suit properties for more than 50 years – Suit was filed by the daughter for partition in the year 1990 – Suit is barred by limitation -- Pleas of sons regarding adverse possession is valid and legal – Sons have perfected their title to the suit schedule properties by adverse possession from 1953 onwards by ouster of the daughters of deceased after her death.

(Para 31-43)

A. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 111, 121, 123 – Joint property – Partition of land – Oral partition – Right of purchaser -- Jamabandis had entered the names of both the brothers even subsequent to the date of alleged oral partition – If the property had therefore remained jointly between two brothers, the purchaser from the widow of one brother would partake the property in his status as a co-owner only -- In Punjab with restrictions of partition by private transactions and compelling parties to resort to partition through revenue authorities, the joint possession by a purchaser is the norm till the date when anyone of the co-owners forces a partition by resort to partition proceedings under the Punjab Land Revenue Act.

(Para 7)

B. Punjab Land Revenue Act, 1887 (XVII of 1887), Section 111, 121, 123 – Limitation Act, 1963 (36 of 1963), Section 27 -- Adverse possession – Joint property – Right of purchaser – Mutation – Role of -- A purchaser when he had applied for mutation in his name, he was asserting for a right to joint ownership to secure a transfer of entry from his vendor to himself -- If the purchaser had taken no action and the purchaser-defendant was fended off by the other co-owner in denial of his right, then it should be stated there existed an ouster of his right -- Continuity of possession must be taken as having snapped at the time when the purchaser asserted his right to joint possession and secured an entry in his name along with the plaintiffs -- Right to partition itself cannot be denied -- Adverse possession not proved.

 (Para 7-8)

A. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7(2) -- Jurisdiction of Appellate Authority -- Assistant Collector allowed ejectment of part of land – Gram Panchayat not filed appeal for remaining land – In appeal by other party, Commissioner passed ejectment order for remaining land as well – Appellate Authority had no jurisdiction to order eviction from the rest of the land.

(Para 4-6, 15)

B. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 4(3)(ii) -- Adverse possession -- Nothing on record to show the fact that the petitioner's predecessor-in-interest was in cultivating possession for more than 12 years preceding the commencement of the Act in the year 1961 -- Once that is so, the petitioner could not be held to be owner on the strength of the claim for adverse possession -- Once adverse possession is claimed, the title is admitted to be of the person against whom the said claim is made.

(Para 9)

C. Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 11 – Constitution of India, Article 226 -- Title dispute -- Pleadings -- Parties have to plead and prove their cases and an application u/s 11 of the Act is akin to civil suit -- Once, a plea was not taken and neither any evidence was led in that regard and neither the Gram Panchayat got any opportunity to rebut the said plea, the said argument cannot be allowed to be raised for the first time under Article 226 of the Constitution of India.

(Para 12)

A. Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954), Section 3 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4(3)(ii) – Shamilat deh -- Father of the appellant was neither the proprietor of the village nor was having any share in the shamilat deh, he was a displaced person from Pakistan – In the revenue record, the land in question was recorded as shamilat deh -- With the coming into force of the Act of 1953, such land vested in the Gram Panchayat and subsequently, with the coming into force of the 1961 Act, such land absolutely vested in the Gram Panchayat -- Collector and the Commissioner have rightly held that the land in dispute vested in the Gram Panchayat, and mere wrong sanctioning of mutation in favour of the Government, does not make this land under the title of the State Government.

(Para 6)

B. Punjab Village Common Lands (Regulation) Act, 1953 (1 of 1954), Section 3 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 2(g), 4(3)(ii) – Shamilat deh – Adverse possession -- Appellant is claiming the land on the basis of adverse possession, but he has failed to prove the cultivating possession of his father over the disputed land for more than 12 years on the day of coming into force of the Act of 1953, therefore, in view of Section 4 (3) (ii) of the Act, the disputed land will not divest from the ownership of the Gram Panchayat.

(Para 6)

A. Tenant-landlord relationship – Adverse possession – Plea of – By setting plea of adverse possession, the petitioner has admitted the title of the landlord over the suit property.

(Para 15)

B. Rent Receipts – Photocopies of – Admissibility of -- Petitioner in his statement has admitted signing of some of the rent receipts -- Objection taken that those receipts are inadmissible in evidence being photocopies of the original and have not been proved in accordance with law as there is no permission to lead secondary evidence of these documents – Held, objection is without any merit, these receipts were duly put to him and no objection was raised by the petitioner at that time regarding the admissibility – Even before High Court, the respondent has produced the original carbon copies/counter foils of the said receipts – Held, no exception can be taken regarding the admissibility of these receipts before this Court – Revision dismissed.

(Para 15)

Indian Easement Act, 1882 (V of 1882), Section 13 – Easement of necessity – Adverse possession -- Way from courtyard – Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this Section, to be deemed, respectively, the transferor and transferee -- Ownership rights have been acquired by plaintiffs in the house in their possession by operation of law, i.e., by way of adverse possession -- Hence, it cannot be said that Section 13 of the Act is not applicable – House in possession of both the parties are contiguous to each other -- No other way for going through the cattle shed except by passing through the courtyard of plaintiff and defendant has been using as such for the last 40-45 years – Defendant has not acquired easement of prescription, he has acquired easement of necessity.

…….

A plain reading of the aforementioned provision of the law shows that where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this Section, to be deemed, respectively, the transferor and transferee for the purpose of this section.

In the present case, ownership rights have been acquired by appellants-plaintiffs in the house in their possession by operation of law, i.e., by way of adverse possession. Hence, it cannot be said that Section 13 of the Act is not applicable to the facts of present case.

It has been duly proved in the previous litigation as well as in the pleadings of the present case that house in possession of both the parties are contiguous to each other.

 (Para 19-23)

A. Sale Deed – Registration of – Presence of Vendee – Requirement of -- Sale deed of shop in favour of both the plaintiff and the defendant in equal shares – If only one of them was present at the time of registration of the sale deed, it would not depict that other did not have half share in the suit property, as recited in the sale deed.

(Para 6)

B. Sale Deed – Registration of – Presence of Vendee – Requirement of -- It is not necessary that all vendees should be present at the time of registration of sale deed.

(Para 6)

C. Adverse possession – Co-owner -- Defendant being co-sharer, could not become owner of the disputed shop by adverse possession unless ouster of the plaintiff was proved -- However, the defendant has neither pleaded such ouster nor proved the same – Plea is not substantiated.

(Para 9)

A. Adverse possession – Plea of – Requirement of -- Defendant, in his pleadings, had set up a plea that he was owner of the suit property on the basis of long and continuous adverse possession --  However, if the pleadings are to be seen, there is no averment as to when he entered the possession and as to when such possession became open and hostile to the true owner – Held, when a plea of adverse possession is raised, such particulars have to be pleaded and proved.

(Para 10)

B. Adverse possession -- Ownership -- Plea of ownership and adverse possession are mutually destructive pleas which cannot be permitted to be taken.

(Para 11)

A. Limitation Act, 1963 (36 of 1963), Article 65 -- Adverse possession – Plea of – Appellants at no stage had set up the case of adverse possession, there was no pleading to that effect, no issues were framed, but even then the trial court decreed the suit on the ground of adverse possession -- Trial court judgment is erroneous and unsustainable.

(Para 32)

B. Limitation Act, 1963 (36 of 1963), Article 65 -- Adverse possession -- Law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate -- The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner -- The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law -- Held, there is an urgent need of fresh look regarding the law on adverse possession -- Union of India asked to seriously consider and make suitable changes in the law of adverse possession.

(Para 34-36)

A. Limitation Act, 1963 (36 of 1963), Section 65 -- Adverse possession – Limitation -- When decree was passed in the year 1965 in favour of plaintiff, the defendant was in possession of suit land as lessee for 20 years i.e. upto the year 1975 – Suit land was leased to defendant by Gram Panchayat – Suit for possession against defendants, filed in the year 1983 is within limitation.

(Para 17)

B. Limitation Act, 1963 (36 of 1963), Section 65 -- Adverse possession – Tenant – Lease -- Once the period of tenancy of a tenant has expired and that the tenant sets up a case of ownership on the ground of adverse possession, that tenancy terminates and the defendants become trespassers on the suit property.

(Para 17)

C. Punjab Security of Land Tenures Act, 1953 (10 of 1953), Section 9 – Tenancy – Plea of adverse possession – Effect of – Lease period expired, plea of adverse possession was taken by defendants, not proved -- Defendants become trespassers on the suit property -- Being trespassers over the suit land, decree for possession has rightly been passed in favour of the plaintiffs – Protection of section 9 of Punjab Security of Land Tenures Act is not available.

(Para 17, 22)

A. Limitation Act, 1963 (36 of 1963), Article 64, 65 – Adverse possession – Claim of adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter.

(Para 22)

B. Limitation Act, 1963 (36 of 1963), Article 64, 65 – Adverse possession – Animus possidendi is a requisite ingredient of adverse possession – It is a principle of law that mere possession of the land would not ripen into possessory title for the said purpose – Possessor must have animus possidendi and hold the land adverse to the title of the true owner – For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession and must continue in said capacity for the period prescribed under the Limitation Act – Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.

(Para 22)

A. Limitation Act, 1963 (36 of 1963), Article 65 – Adverse possession -- Limitation – Once the plea of adverse possession, raised by the defendants, has been negated in the earlier suit, the Courts could not permit the defendants to raise the plea of adverse possession and to hold that the suit for possession filed by the plaintiffs is barred by limitation.

(Para 7)

B. Limitation Act, 1963 (36 of 1963), Article 65 – Adverse possession -- Limitation – In earlier suit it has been recorded that defendant are in possession of the property as co-sharer -- Possession of one co-sharer is possession of all the co-sharers -- Mere length of possession of one co-sharer would not give any title to the co-sharer in possession -- No evidence of the fact that the possession is adverse to the knowledge of other co-sharers -- It is for the defendants to prove that their possession became adverse to the plaintiffs for the last 12 years.

(Para 7)

C. Limitation Act, 1963 (36 of 1963), Article 65 – Adverse possession -- Limitation – In a suit for possession based on title, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff, but it commences from the date when the defendant's possession becomes adverse.

(Para 8)

D. Adverse possession -- Once the plea of adverse possession has been negated and the possession of the defendants is held to be that of a co-sharer in the previous suit, the possession cannot be said to be adverse in the present suit -- Mere assertion of adverse possession is not sufficient to confer title.

(Para 9)

A. Adverse possession -- Plaintiff has not disclosed the name of the true owner of the disputed plot -- If a person is claiming adverse possession over a property, then he is required to plead and prove as to who is the true owner of the property whose title was being denied by him.

(Para 3)

B. Adverse possession -- Mere possession, however long it may be, does not necessarily mean that it is adverse to the true owner.

(Para 3)

C. Adverse possession -- If the plaintiff does not know who is the true owner of the disputed property, the question of his being in hostile possession and the question of denying title of the true owner, do not arise.

(Para 3)

Limitation Act, 1963 (36 of 1963), Section 65 -- Adverse possession – Co-owner – “A” and “B” are survivors of deceased -- “A” sent notice to “B” claiming partition and possession of property – No suit was filed thereafter for more than 12 years – “B” remained in possession throughout – It was only when, the “B” sought to sold the suit property, it came to the knowledge of “A” that “B” is not interested in partition of the property and giving her share and adverse possession is being sought to be established and her interest in suit property is sought to be sold by “B” – Thereafter “A” filed a suit for partition and possession – Held, just because “A” gave a notice and she did not pursue the same for more than 12 years, on that basis no adverse inference can be drawn and “A” cannot be ousted on that count by way of adverse possession.

(Para 8, 15)

A. Adverse possession – Concept of -- Adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner -- Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them -- Principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed -- For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor -- Adverse possession is commenced in wrong and is aimed against right -- A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.

(Para 12)

B. Adverse possession – Co-owner -- Possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owner. Vidya Devi’s case 1995 (4) SCC 496 relied.

(Para 13)

C. Adverse possession – Claim of Trustees, Guardians, Bailiffs, Agents regarding Adverse possession -- Possession is not held to be adverse if it can be referred to a lawful title -- Person setting up adverse possession holding under the rightful Owner's title i.e. trustees, guardians, bailiffs or agents -- Such persons cannot set up adverse possession.

(Para 14)

D. Adverse possession – Meaning of -- Where possession could be referred to a lawful title, it will not be considered to be adverse -- One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation.

(Para 16)

E. Adverse possession -- Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it.

(Para 17)

F. Adverse possession --  Kind of -- Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently -- If a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio -- But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position.

(Para 17)

G. Adverse possession – Possession for long time – Hostile possession -- Mere possession however long does not necessarily means that it is adverse to the true owner -- Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner -- Classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous -- Possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.

(Para 22)

H. Adverse possession – True owner not known – Hostile possession -- If the possessor are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise.

(Para 23)

A. East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948 (50 of 1948), Section 43-A – Limitation – Consolidation Proceedings -- Correction in revenue record -- The Director, Consolidation is empowered under section 43-A of the Act to make correction of clerical errors at any time -- There is no limitation prescribed for correcting the mistake in the consolidation proceedings under section 43-A of the Act.

(Para 7)

B. East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948 (50 of 1948), Section 43-A – Adverse possession -- Due to wrong entry in revenue record petitioner and respondent no. 6 and 7 remain in actual physical possession over the land in question – The mistake in the revenue record is not disputed, the question of adverse possession will not arise.

(Para 7)