Punjab-Haryana High Court
(O&M;) Vijay Bhawar And Ors vs Ajaib Singh on 8 December, 2014
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Arun Palli
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 2561 of 1985
DATE OF DECISION : 08.12.2014
Vijay Bhawar and others
.... APPELLANTS
Versus
Ajaib Singh (deceased) through his LR
.... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE ARUN PALLI
Present : Mr. Prem Nath Aggarwal and Mr. Kartik Gupta, Advocates,
for the appellants.
Mr. S.C. Nagpal, Advocate,
for LR of the respondent.
Mr. Anil Kshetarpal, Senior Advocate, with
Mr. Aditya Kaushal, Advocate.
***
SATISH KUMAR MITTAL, J.
1. This reference has been made by the learned Single Judge for consideration of the following question of law by a Larger Bench, which is arising in large number of cases before this Court as well as before the Subordinate Courts :-
"Whether the plaintiff is competent to seek declaration of title of the property by adverse possession, or whether the same is available only to the defendant to plead the same as DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -2- defence in a suit for possession filed by the plaintiff on the basis of title ?"
2. It has been noticed by the learned Single Judge that as far as this Court is concerned, it has been consistently held in several decisions, i.e. Bhim Singh and others v. Zile Singh and others, (2006-3) PLR 159, Dewaki and others v. Dayawanti and others, 2006 (3) RCR (Civil) 75, Kanak Ram and others v. Chanan Singh and others, 2007 (2) RCR (Civil) 213, Himat Rai v. Kehar Singh, (2008-4) PLR 624 and Gurudwara Sahib Sanauli v. State of Punjab and others, (2009-2) PLR 756, that the plaintiff cannot maintain a suit for declaration declaring him to be the owner of a suit property on the plea of adverse possession, as the plea of adverse possession can only be raised in defence in a suit for recovery of possession on the basis of title. But the learned Judge has observed that there are several judgments of the Hon'ble Supreme Court and many other High Courts which have upheld the claims of adverse title on the basis of adverse possession in favour of the plaintiff. In this regard, the learned Single Judge has referred to the decisions of the Hon'ble Supreme Court in Des Raj v. Bhagat Ram, (2007) 9 SCC 641, Krishnamurthy S. Setlur v. O.V. Narasimha Setty and others, (2007) 3 SCC 569, Girja Kumar (2) and others v. State of Himachal Pradesh and another, (2007) 14 SCC 90, and the decisions of other High Courts as well as Privy Council in Dileswar Behera and another v. Benudar Patel, 2008 (68) AIC 757 (Orissa), Govind Yadav v. Deoki Devi, AIR 1980 Patna 113, Kodiyan v. Karambir, 2007 (2) KLT 361, Pritam DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -3- Singh v. State of Madhya Pradesh, (2010) 5 MPHT 56, Bangalore Development Authority v. Vysya Bank Ltd. (Karnataka), 2005 (3) ICC 247, Secretary of State v. Debendra Lal Khan, AIR 1934 PC 23 and V. Muthiah Pillai v. Vedambal, AIR 1986 Madras 106. Keeping in view the principle laid down in these judgments, it has been observed that since there has been a long string of authorities of this court, where the view drawn is contrary to these judgments, therefore, it will be appropriate that the issue be settled by a Larger Bench.
3. Before we analyse the aforesaid question of law, a brief narration of facts of this case would be in order.
4. In the present case, a suit was filed by the plaintiff (respondent herein) seeking a declaration that he was in possession of the land measuring 23 kanals 6 marlas since 1922 and he had perfected his title to the said land by way of adverse possession. The defendants (appellants herein) contested the claim of the plaintiff by pleading that as per the revenue record, they are owners of the property. The predecessors of the plaintiff were tenants under the defendants' predecessors. And plaintiff's suit for declaration that he had become owner being in adverse possession was not maintainable, as he had no title in the suit land and merely on the basis of his adverse possession, he could not be declared owner. The trial court decreed the suit of the plaintiff declaring him to be owner in possession of the suit land, while recording the finding that his possession is hostile, open DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -4- and to the knowledge of the owner since 1922, therefore, he has become owner of the suit land by way of adverse possession. The appeal filed by the defendants against the said judgment and decree was dismissed by the first appellate court.
5. In the instant Regular Second Appeal, the appellants (defendants) raised the aforesaid question of law, which has been referred for consideration by a Larger Bench.
6. We have heard learned counsel for both the parties at length on the aforesaid question of law. In support of their respective arguments, both the counsels have cited several judgments, which will be referred to at an appropriate stage in this judgment.
7. To begin with, we would like to refer to a number of decisions, wherein the view has been taken that no declaration qua ownership be sought by a plaintiff on the basis of adverse possession over a property. The plea of adverse possession can be taken in defence in a suit filed by the plaintiff for possession on the basis of title. In Prem Nath Wadhawan v. Inder Rai Wadhawan, (1993-3) PLR 70, a suit for declaration filed by a person, who was in adverse possession of a property, to declare him to be owner of the property, was dismissed, while observing that the contention that the plaintiff has become absolute owner of the suit property by virtue of adverse possession cannot be accepted, as the plea of adverse possession can be raised only in defence, in a suit for recovery of possession. Subsequently, DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -5- this issue again came up for consideration in Bhim Singh's case (supra), where the learned Single Judge of this Court, while relying upon Prem Nath Wadhawan's case (supra) reiterated the same view. In that case, the plaintiffs filed a suit for declaration and permanent injunction alleging that they had become absolute owners of the suit land by way of adverse possession and as such being owners in possession, they are entitled to protect their possession. The defendants contested the suit and denied the claim of the plaintiffs. The trial court decreed the suit. The defendants took up the matter in appeal and the first appellate court allowed the appeal, while holding that in the facts and circumstances of the case, possession of the plaintiffs was permissive and thus, the same could not have turned hostile/adverse in any manner. In the second appeal filed by the plaintiffs, on a question posed by the court as to how a declaration of ownership could be sought by the plaintiffs on the basis of adverse possession, it was contended on behalf of the plaintiffs that they were in hostile, continuous and open possession of the suit land for a period of more than 12 years, and thus had become owners by way of adverse possession. And in such circumstances, it was always open to the plaintiffs to claim a declaration of ownership. This contention was rejected by the learned Single Judge, while observing as under :-
"11. Under Article 64 of the Limitation Act, as suit for possession of immovable property by a plaintiff, who while in possession of the property had been dispossessed from such DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -6- possession, when such suit is based on previous possession and not based on title, can be filed within 12 years from the date of dispossession. Under Article 65 of the Limitation Act, a suit for possession of immovable property or any interest therein, based on title, can be filed by a person claiming title within 12 years. The limitation under this Article commences from the date when the possession of the defendant becomes adverse to the plaintiff. In these circumstances, it is apparent that to contest a suit for possession, filed by a person on the basis of his title, a plea of adverse possession can be taken by a defendant who is in hostile, continuous and open possession, to the knowledge of the true owner, if such a person has remained in possession for a period of 12 years. It, thus, naturally has to be inferred that plea of adverse possession is a defence available only to a defendant. This conclusion of mine is further strengthened from the language used in Article 65, wherein, in column 3 it has been specifically mentioned "when the possession of the defendant becomes adverse to the plaintiff." Thus, a perusal of the aforesaid Article 65 shows that the plea is available only to a defendant against a plaintiff. In these circumstances, natural inference must follow that when such a plea of adverse possession is only available to a defendant, then no declaration can be sought by a plaintiff with regard to his ownership on the basis of an adverse possession. xxx
15. Therefore, it must follow that the intention behind Article 65 is clear and unambiguous i.e. not to provide any period of limitation for a suit for possession by a plaintiff on the basis of title, however, at the same time by providing a DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -7- defence to a defendant of adverse possession. The defendant in such a defence would have to prove the aforesaid factum of adverse possession and, naturally, the onus of proving the aforesaid defence would be upon the defendant. The reason behind the intention of the Legislature is very clear. If a defendant is able to establish his adverse possession, then the very title of the plaintiff to the property is extinguished. But for the aforesaid defence of adverse possession, a plaintiff has no restriction of limitation to seek possession of immovable property on the basis of his title."
Subsequently, this judgment was followed by the same learned Judge in Dewaki's case (supra) and Kanak Ram's case (supra). The said view was also followed by other Benches of this Court in Himat Rai's case (supra) and Joginder Kaur v. Gurbachan Kaur and others, (2012-3) PLR 557, while holding that the plea of adverse possession would not be available to the plaintiff to seek a declaration to have become the owner of the suit property by way of adverse possession, it was held that such a suit itself was not maintainable. A person in adverse possession could only raise such plea by way of defence and not by filing a suit. Once again, the issue came up for consideration before the learned Single Judge of this Court in Gurudwara Sahib Sanauli's case (supra). And again, while following the observations made in Bhim Singh's case (supra) and State of Haryana v. Mukesh Kumar, (2009-2) 154 PLR 753, it was held that no declaration can be sought by a plaintiff as regards ownership on the basis of adverse possession, as such plea was available only to a defendant. DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -8-
8. It would be expedient to mention here that the decision in Gurudwara Sahib Sanauli's case (supra) came up for consideration before the Hon'ble Supreme Court in Gurudwara Sahib v. Gram Panchayat Vilage Sirthala and another, 2014 (1) Law Herald (P&H) 193 (SC) 193. In that case, the plaintiff - Gurudwara Sahib filed a suit for declaration to the effect that it had become owner of the suit property by adverse possession. Consequential relief of permanent injunction was also sought. The relief of declaration was denied by the trial court on the ground that the suit for declaration was not maintainable, while relying upon the decision of this Court in Gurudwara Sahib Sanauli's case (supra). As far as the relief of injunction was concerned, it was held that as long as uninterrupted possession of the plaintiff Gurudwara was established, it was entitled to the decree of injunction and the defendants were restrained from dispossessing the plaintiff forcibly and illegally from the suit land. The defendants accepted the judgment and decree of the trial court. However, the plaintiff filed appeal against the finding that its suit for declaration was maintainable. The first appellate court as well as the High Court dismissed the appeal of the plaintiff while observing that the issue, as to whether adverse possession of the plaintiff had matured into his ownership is purely a question of law and it is settled that no declaration of title can be sought on the basis of adverse possession. When the matter went to the Hon'ble Supreme Court in appeal filed by the plaintiff, the Hon'ble Apex Court dismissed the appeal, DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -9- while observing as under :-
"7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. 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. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence."
9. Learned counsel for the appellants (defendants) argued that the question of law referred to this Bench in this case has been answered by the Hon'ble Apex Court and the view taken by this Court that no declaration can be sought by a plaintiff with regard to ownership on the basis of adverse possession as such plea is available only to a defendant, has been affirmed.
10. In addition to this, learned counsel has referred two other judgments of the Hon'ble Supreme Court, which according to him further strengthen the view taken by this Court in a series of judgments and affirmed by the Hon'ble Supreme Court in Gram Panchayat Village Sirthala's case (supra) :
(i) Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and others, 2008 (4) RCR (Civil) 401, wherein it has been observed that the law of adverse possession which ousts an owner on the basis of DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -10- 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. The law is not supposed to give a seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
(ii) Tribhuvanshankar v. Amrutlal, 2014 (1) RCR (Civil) 206, wherein it has been observed that the conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. By virtue of remaining in possession the possessor takes an adverse stance to the title of the true owner. In fact, he disputes the same. A mere possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law of limitation so that the possessor perfects his title by adverse possession. This principle has been accepted by the Court keeping in view the statutory provisions of the Limitation Act, 1963.
It has been further held by the Hon'ble Apex Court that the DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -11- fundamental policy behind limitation is that if a person does not pursue his remedy within the specified time frame, the right to sue gets extinguished. It has further been observed that Section 28 of the Limitation Act, 1963 merely declares when the right of the person out of possession is extinguished. It is not correct to say that section confers title on the person who has been in adverse possession for a certain period. There is no law which provides for `conferral of title' as such on a person who has been in adverse possession for whatever length of time.
11. Learned counsel for the appellants put much emphasis on the observations of the Hon'ble Supreme Court to the effect that there is no law which provides for `conferral of title' as such on a person who has been in adverse possession for whatever length of time. Even due to limitation the true owner has extinguished his right to gain possession. According to the learned counsel, a suit for declaration declaring the plaintiff to be owner in possession of the disputed land on the basis of his adverse possession is maintainable if the plaintiff has any title on such land. Merely because a person was in adverse possession of some land beyond 12 years to the knowledge of the true owner, such adverse possession does not confer any title and he cannot file a suit for declaration to declare that the said right vested in him.
12. On the other hand, learned counsel for the respondent DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -12- (plaintiff), while referring to Articles 64 and 65 and Section 27 of the Limitation Act, 1963, and Section 34 of the Specific Relief Act, 1963, as well as the decisions of the Hon'ble Supreme Court in Des Raj's case (supra), Krishnamurthy S. Setlur's case (supra), Girja Kumar's case (supra), decision of the Patna High Court in Govind Yadav's case (supra) and Madras High Court in V. Muthiah Pillai (Dead) and others v. Vedambal and others, AIR 1986 Madras 106, argued that the plaintiff is entitled to maintain a suit for declaration claiming ownership on the basis of adverse possession, and it is not necessary that the plea of adverse possession could have been taken only in defence in a suit for possession filed by the true owner on the basis of title. Learned counsel argued that if on the basis of pleadings and evidence, the plaintiff has been able to prove his continuous, hostile and uninterrupted possession on the disputed property, the plaintiff has perfected his title in such property by way of adverse possession. And once he has perfected his title by way of adverse possession, he is entitled to maintain a suit and seek a declaration. Further, when a person entitled to possession of a property does not bring a suit within the time prescribed by law, and his right to possession is extinguished, therefore, it does not stand to any reason that even after a person who has perfected his title of adverse possession, still cannot maintain a suit for declaration declaring him to be the owner. Learned counsel argued that the Hon'ble Supreme Court in Gram Panchayat Village DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -13- Sirthala's case (supra) has not considered this aspect of the matter. Learned counsel further argued that a person, while perfecting his title in a property by way of adverse possession, is entitled to maintain his suit for declaration under Section 34 of the Specific Relief Act, 1963, which provides any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right. According to the learned counsel, a person in adverse possession of a property is deemed to have acquired title in the property by way of adverse possession and thus, entitled to maintain a suit for declaration under Section 34 of the Specific Relief Act, 1963.
13. The law of adverse possession is well known. Ordinarily it appears to be simple, but off late it has been applied incorrectly in some cases. The principle of adverse possession is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. The adverse possession essentially is hostile possession, possession in denial of the title of the true owner. In includes possession held by a defendant in practical contravention of the plaintiff's rights while the plaintiff is standing by. It can be described as, (a) it is possession of another's land with intent to hold and claim it as his own; it must commence in wrong and must be maintained against right; (b) it is possession with animus to hold the property in the possessor's own right and against the right of the rightful owner; (c) it is possession hostile and DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -14- exclusive; (d) it is an invasion of the title; (e) it is wrongful entry into possession. It has three popular expressions or principles found in the maxim "nec vi, nec clam and nec precario". Article 65 of the Limitation Act, 1963 provides limitation of twelve years in filing a suit for possession of a property on the basis of title, when possession of the defendant became adverse to the plaintiff. The owner having not filing the suit for possession within twelve years from the date when the possession became adverse is not entitled to take possession of the property on the basis of title. As per Section 27 of the Limitation Act, 1963, the right of such person in the property who did not institute the suit for possession within the limit prescribed shall be extinguished.
14. Thus, a short but a significant question that arises is, whether on an extinguishment of such a right of a true owner in the property, a right accrues or is conferred on the adverse possessor to enable him to claim relief under Section 34 of the Specific Relief Act. To our minds, the answer is NO. In our opinion, Section 27 and Article 65 have to be read in conjunction and not in isolation. An isolated reading of Section 27 may not bring to fore the real and full meaning of the phrase "right to such property shall be extinguished". A conjoint reading of both, the Section as well as the Article, clearly postulate that a suit for possession based on title can be filed within twelve years from the date when the possession of the defendant became adverse to the plaintiff and if any such suit is not filed within such prescribed period, right of such person to the property shall be extinguished. DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -15- Evidently, the right of such person to obtain possession has been extinguished but his right to the property has not been. The right to a property and right to regain possession of the same are two different things. The Hon'ble Apex Court in Tribhuvanshankar's case (supra) has clearly mandated that Section 28 of the Limitation Act, 1963, merely declares when does the right of a person out of possession is extinguished, but this provision does not confer any title on the person who has been in adverse possession for a certain period. There is no law which provides for `conferral of title' as such on a person who has been in adverse possession for whatever length of time. When it is said that the person in adverse possession `has perfected his title', it only means this. It does not mean that it confers ownership or title on the adverse possessor. If that is so, then the question arises whether the adverse possessor who has not been conferred any right in the property, contrary to the true owner who's right to seek possession stood extinguished, can file a suit under Section 34 of the Specific Relief Act to declare him owner of the property on the basis of adverse possession ? Section 34 of the Specific Relief Act reads as under :-
"34. Discretion of court as to declaration of status or right - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief :
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -16-
All what the afore reproduced provision envisage is that a person, who is entitled to any right as to any property, may institute a suit against any person denying or interested to deny his title to such property to declare his title in the property. But as indicated above, adverse possessor has no title or ownership in the property. In fact, the whole concept of adverse possession is in denial of title. It does not contemplate acquisition of title by prescription. He has right to remain in possession of the property, if his possession is adverse to the true owner, who is not entitled to take possession of the property after the prescribed limit under Article 65 of the Limitation Act, 1963. If a suit is filed by the adverse possessor under Section 34 of the Specific Relief Act, the court will not examine whether the right of the defendant is within the period of limitation or whether it has extinguished. The court will examine whether the plaintiff who filed suit on the basis of adverse possession has any title to the property. Therefore, just because the plaintiff filed the suit denying title of the defendant and setting up his own title on the basis of adverse possession, the court would not decide, whether the defendant had lost his right to regain possession of the property. In our opinion, Section 27 of the Limitation Act, 1963, though extinguishes the right of a person to gain possession of the property, if he had failed to file the suit within twelve years specified under Article 65 of the Act, but this Section and the Article does not, on the extinguishment of such right vest title in favour of the adverse possessor to file any such suit under Section 34 of the Specific Relief Act. He has to establish his own DASS NAROTAM 2014.12.17 14:38 I attest to the accuracy and authenticity of this document RSA No. 2561 of 1985 -17- right, tile to the suit property. In our view, the adverse possessor having no right in the property cannot maintain a suit under Section 34 of the Specific Relief Act. There may not be any case wherein the title can be set up or declared based on merely adverse possession. In our view, a suit merely based on adverse possession or to call it a title by adverse possession is not maintainable. Such a defence is open to the defendant by virtue of Article 65 of the Limitation Act, 1963 to set up against the owner seeking the relief of possession based on title against a person in adverse possession. Declaration of title presupposes that a title or ownership exist in the plaintiff, but if a person neither has the ownership nor title, what declaration can he ask for.
15. In view of the above, in none of the judgments cited by learned counsel for the respondent (plaintiff), the proposition of law was directly in issue. Thus, we are of the opinion that no declaration can be sought by a plaintiff with regard to ownership on the basis of adverse possession as such plea is available only to defendant.
16. The reference is answered accordingly, and the main appeal will go back to the learned Single Judge for a decision on merits.
( SATISH KUMAR MITTAL )
JUDGE
December 08, 2014 ( ARUN PALLI )
ndj JUDGE
Refer to Reporter
DASS NAROTAM
2014.12.17 14:38
I attest to the accuracy and
authenticity of this document