The evolution of adverse possession in the last decade has been rapid and progressive.
Adverse Possession is where a person is in occupation of the property of another without the permission or consent of the owner of the property. Under Article 65 of the Limitation Act, 1963, a person who is in adverse possession of the property for a period of 12 years or more cannot be dispossessed from the property even by the owner of the said property.
Initially, the courts recognized the right under Article 65 of the Limitation Act, 1963 only as a defence against dispossession.
In Gurdwara Sahib V. Gram Panchayat Village Sirthala and Another, the appellant filed a suit based on the plea of adverse possession of the suit land they were in possession of peacefully, continuously and with the knowledge of the respondents, whose right had now been extinguished. The maintainability of such a suit was challenged in the present appeal. The Hon’ble High Court of Himachal Pradesh, in its order dated April 28, 2016, held that even if a 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 are filed against the appellant, and the appellant is arrayed as a defendant that it can use this adverse possession as a defence.
The Court made it amply clear that the person in adverse possession could not file a suit to declare ownership of the property based on adverse possession. Adverse possession could only be used as a shield (defence) by the possessor of a property as a defendant where a suit has been filed against him for recovery of possession by the property owner. Adverse possession only a shield for the possessor.
This scenario changed dramatically in Ravinder Kaur Grewal and Others V. Manjit Kaur and Others. In this case, the Hon’ble Supreme Court of India was considering the question of whether, under Article 65 of the Limitation Act, 1963, a possessor can file a suit for declaration of title in the immovable property and file for a permanent injunction seeking the protection of his adverse possession thereby restraining the owner from interfering in the possession or for restoration of possession in case of illegal dispossession by the owner whose title has been extinguished by virtue of the possessor remaining in the adverse possession.
The Hon’ble Supreme Court, by its judgment dated August 7, 2019, held that a person in possession cannot be ousted by another person except by due procedure of law. Once the 12 years period of adverse possession is over, even owner's right to eject him is lost. The possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. The consequence of this is that once the right, title or interest is acquired, it can be used as a sword by the possessor as well as a shield under Article 65 of the Limitation Act, 1963 and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. A possessor who has perfected the title by adverse possession can sue and maintain a suit for declaration of title in the immovable property.
The Hon’ble Supreme Court overruling the previous orders and judgments empowered the possessor under Ravinder Kaur Grewal and Others V. Manjit Kaur and Others. The possessor by efflux of the time period under the Limitation Act, 1963, can now use the plea of adverse possession as both a shield and a sword. This means not only can the possessor now defend his right to possession of the immovable property, but the possessor can now also sue for declaration as the owner by way of adverse possession and seek a permanent injunction from being dispossessed from the immovable property.
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