Question: What is the limitation to grant a person having possession of a
land, the tittle of the said land?
Ans. The basis on which this concept of limitation is based on the negligence of
real owner to claim his own right over a property. The right to access to court is
barred by law on effluxion of prescribed time.
As observed by the SC in the case of Karnatka Board of Wakf V. G.O.I1, an
owner would be deemed to be in possession of a property unless there is no
intrusion. This tittle is said to be gone when another person take over the
property and claims right over it and the actual owner don’t show any interest
neither takes any legal action against the person for years. “The process of
acquisition of title by adverse possession springs into action essentially by
default or inaction of the owner”.2 The adverse possession should neither be by
force nor by stealth nor under the licence of owner.
The law of adverse possession is contained in The Indian Limitation Act,1963.
Article 65, Schedule I of The Limitation Act prescribes a limitation of 12 years
for a suit for possession of immovable property or any interest therein based on
title. It is important to note that the starting point of limitation of 12 years is
counted from the point of time “when the possession of the defendants becomes
adverse to the plaintiff”. Article 65 is an independent Article applicable to all
suits for possession of immovable property based on title i.e., proprietary title as
distinct from possessory title. Article 64 governs suits for possession based on
possessory right. 12 years from the date of dispossession is the starting point of
limitation under Article 64. Article 65 as well as Article 64 shall be read with
Section 27 which bears the heading – “Extinguishment of right to property”. It
lays down: “At the determination of the period hereby limited to any person for
instituting the suit for possession of any property, his right to such property
shall be extinguished.” That means, where a cause of action exists to file a suit
for possession and if the suit is not filed within the period of limitation
prescribed, then, not only the period of limitation comes to an end, but the right
based on title or possession, as the case may be, will be extinguished. The
section assists the person in possession to acquire prescriptive title by adverse
possession. When the title to property of the previous owner is extinguished, it
passes on to the possessor and the possessory right get transformed in to the
ownership. This Article 27 is an exception to the well accepted principle that
limitation extinguishes the remedy and not the tittle. As far as the Government
(Central or State) property is concerned, the period of limitation for any suit
(except a suit before the Supreme Court) is 30 years and the starting point of
1
( 2004) 10 SCC 779
2
(2004) 10 SCC 65
limitation is the same as in the case of a suit by a private person (vide Article
112, Schedule I of Limitation Act). Acquisition of easements by prescription is
provided for by Section 25 of The Limitation Act.
The legal position as regards the acquisition of title to land by adverse
possession has been succinctly stated by the Judicial Committee of the Privy
Council in Perry vs. Clissold : “It cannot be disputed that a person in possession
of land in the assumed character of owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title against all the world but the
rightful owner. And if the rightful owner does not come forward and assert his
title by the process of law within the period prescribed by the provisions of the
statute of Limitation applicable to the case, his right is for ever extinguished and
the possessory owner acquires an absolute title.”
It was clarified by a three-Judge Bench of the Supreme Court in Kshitish
Chandra Bose v. Commissioner of Ranchi,3 “All that the law requires is that the
possession must be open and without any attempt at concealment. It is not
necessary that the possession must be so effective so as to bring it to the specific
knowledge of the owner. Such a requirement may be insisted on where an
ouster of title is pleaded, but that is not the case here.” It was also clarified in a
series of decisions that while possession shall be open and exclusive and in
assertion of one’s own right, the fact that the possessor did not know who the
real owner was, will not make his possession any the less adverse.
Justification of adverse possession:
The ‘great’ purpose of adverse possession as described by a jurist Henry W.
Ballantine in his article “Title by Adverse Possession,” “is automatically to
quiet all titles which are openly and consistently asserted, to provide proof of
meritorious titles and correct errors in conveyancing”. Another justification for
the law of adverse possession is captured in the quote that possession is “nine
points of the law”. The moral justification of the law of adverse possession was
graphically stated by Justice O.W. Holmes who said “man like a tree in the cleft
of a rock, gradually shapes his roots to the surroundings, and when the roots
have grown to a certain size, can’t be displaced without cutting at his life,”.
Question: Adverse possession- judgement
3
AIR 1981 SC 707
1. Karnataka Board of Wakf Vs. GOI,( 2004) 10 SCC 779 : In this case SC
observed that “in the eye of law, an owner would be deemed to be in possession
of a property so long as there is no intrusion”.
2. Amrendra Pratap Singh vs. Tej Bahadur Prajapati, (2004) 10 SCC 65 : SC in
this case said that “the process of acquisition of title by adverse possession
springs into action essentially by default or inaction of the owner”.
3. Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165 : In this
case SC approve of the dictum of privy council in the case of Perry V. Clissold,
(1907) AC 73, at 79 , although SC said that the decision of Privy council is not
binding on us but we approve this dictum. The decision of Privy council said “It
cannot be disputed that a person in possession of land in the assumed character
of owner and exercising peaceably the ordinary rights of ownership has a
perfectly good title against all the world but the rightful owner. And if the
rightful owner does not come forward and assert his title by the process of law
within the period prescribed by the provisions of the statute of Limitation
applicable to the case, his right is for ever extinguished and the possessory
owner acquires an absolute title.”
4. Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707: The
SC held that “All that the law requires is that the possession must be open and
without any attempt at concealment. It is not necessary that the possession must
be so effective so as to bring it to the specific knowledge of the owner. Such a
requirement may be insisted on where an ouster of title is pleaded, but that is
not the case here.”
