Saji Koduvath, Advocate, Kottayam.

Key Takeaways

Title and Ownership

• The word ‘Title’ conveys the idea as to a distinctive name given to a book, artistic work, case-name etc., or status conferred upon a person.
• In law, ‘Title’ is the expression or declaration of a legally recognised right to ‘Ownership’ of real property. In simple terms it is said to be the ‘evidence of ownership’ of property.
• Conversely, lawful ‘Ownership’ of a real property entitles ‘Title’ to the owner.
• Therefore, both Title and Ownership are said to be the two sides of the same coin.

Possession and Adverse Possession

• ‘Ownership’ bestows social recognition to possess and enjoy a property, absolutely.  Therefore, it is the relation between a person and the property.
• Possession is a good Title against any one who cannot show a better. If ‘no Title in either party, possession alone decides’.
• The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner);
  • because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).
• Continuance of ‘Adverse Possession’ for 12 years confers ‘Title’ under Sec. 27, Limit. Act.
• But, rights under ‘adverse’ possession will be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.

Part I

What is “Title”?

• Title is the legal expression of right to ownership in a property.
• “Title is the legal way of saying you own a right to something.”
• Owner holds title to the property (Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432).
• When title on a property is transferred, the ownership also stands transferred.
• ‘Title’ encompasses capacity of individual to exercise absolute right over property and to exclude others.
• A person who has title over a property, even if, has no physical possession thereof, can continue title in various ways.  

Black’s Law Dictionary defines “title” in relation to property as under:

• “Title is the means whereby the owner of lands has the just possession of the property.
• The union of all the elements which constitute ownership.
• Full independent and free ownership.
• The right to or ownership in land: also, the evidence of such ownership. Such ownership may be held individually, jointly, in common, or in cooperate or partnership form.
• One who holds vested rights in property is said to have title whether he holds them for his own benefits or for the benefit of another.” (Quoted in: Usha Tandon alias Usha Gopalan v. Lilavati H. Hiranandani, 1991 4 BomCR 422)

Original and Derivative Title

Jurisprudentially titles have been recognised in two categories. One, “the original” and another is “the derivative”. The “original title” is that which is created a de novo while the “derivative title” is that which transfer an already existing right to a new owner. Catching of fish is an original title of the right of ownership, whereas purchase of fish results in the purchase a derivative title.  (Sukh Lal v. Ashok Kumar Raghuwansi, 2013-3 ALJ 82 ).

What is Ownership?

In Mysore Minerals Ltd. , M. G. Road, Bangalore v. Commissioners of Income-Tax, Karnataka, Bangalore, AIR 1999  SC 3185, our Apex Court went deep to explain what is ownership. It observed, referring various definitions, as under:

• “What is ownership? The terms ‘own’, ‘ownership’, ‘owned’ are generic and relative terms. They have a wide and also a narrow connotation. The meaning would depend on the context in which the terms are used.
• Black’s Law Dictionary (6th Edition) defines ‘owner’ as under :-
  • “Owner. The person in whom is vested the ownership, dominion, or title of property; proprietor. He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right.
  • The term is, however, a nomen generalissimum, and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied. The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the terms also included one having a possessory right to land or the person occupying or cultivating it.
  • The term “owner” is used to indicate a person in whom one or more interests are vested for his own benefit……..”
• In the same Dictionary, the term ‘ownership’ has been defined to mean, inter alia, as –
• “Collection of rights to use and enjoy property, including right to transmit it to others……… The right of one or more persons to possess or use a thing to the exclusion of others. The right by which a thing belongs to some one in particular, to the exclusion of all other persons. The exclusive right of possession, enjoyment or disposal; involving as an essential attribute the right to control, handle, and dispose.”
• Dias on Jurisprudence (4th Edn., at p. 400) states :
  • “The position, therefore, seems to be that the idea of ownership of land is essentially one of the `better right’ to be in possession and to obtain it, whereas with chattels the concept is a more absolute one. Actual possession implies a right to retain it until the contrary is proved, and to that extent a pos­sessor is presumed to be owner.”
• Stroud’s Judicial Dictionary gives several definitions and illustrations of ownership. One such definition is that the ‘owner’ or ‘proprietor’ of a property is the person in whom (with his or her assent) it is for the time being beneficially vested, and who has the occupation, or control, or usufruct, of it; e.g., a lessee is, during the term, the owner of the property demised.
• Yet another definition that has been given by Stroud is:
  • ” “owner” applies to every person in possession or receipt either of the whole, or of any part, of the rents or profits of any land or tene­ment; or in the occupation of such land or tenement, other than as a tenant from year to year or for any less term or as a tenant at will.”

Salmond

Salmond explained “ownership” as that ‘denotes the relation between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. Though in certain situations some of these rights may be absent, the normal case of ownership can be expected to exhibit the following incidents’.

Salmond continued as under:  

• “Ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him.  That which a man owns in this sense is in all cases a right.”  (J. Deepak vs The Secretary To The Government (2021)

Salmond summed up the concept of ownership as under:

• “Summing up the conclusion to which we have attained, we may define the rights of ownership in a material thing as the general, permanent and inheritable right to the uses of that thing.” (Quoted in: Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398)

Austin

Austin in his book Jurisprudence, 3rd Edn., page 817, defines the “right of ownership” as under:

• “A right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration over a determinate thing.” (Quoted in: Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398)

Incidence of Ownership

In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 AIR SC 142, it is held as under:

• “42. Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word ‘property’ connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status.” (Quoted in: Laljibhai Kadvabhai Savaliya v. State of Gujarat, AIR 2016 SC 4715)

It is observed, as to the theoretical concept of ‘ownership’, in Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398, as under:

• “The theoretical concept of ‘ownership’, therefore, appears to be that a person can be considered to be owner if he has absolute dominion over it in all respects and is capable of transferring such ownership. Heritability and transferability are no doubt some of the many and may be most important ingredients of ownership. But they by themselves cannot be considered as sufficient for clothing a person with absolute ownership. Their absence may establish lack of ownership but their presence by itself is not sufficient to establish it.”

In Butterworth’s Words and Phrases Legally Defined, 2nd Edn., Vol. 4, page 61, ‘ownership’ has been defined as under:

• “Ownership consists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration, and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right of ownership. (Quoted in Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398.)

Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432, it is observed as under:

• “Ownership imports three fundamental rights, namely, right to possession, right to enjoy and right to dispose. The owner of the property is not only entitled to possess but also has the right to exclude all others from the possession or enjoyment of it. If the owner is wrongly deprived possession, he has a right to recover possession from any person, who may possess it. But an absolute owner may deprive himself of such right by an assignment, e.g., grant of lease, and may thereby become a limited owner. The right to possession may be limited or restricted in various ways, either by a voluntary act or involuntarily. An owner who has, however, suffered a limitation in respect of his right to possession can hardly be regarded as an absolute owner.”

From the above, it is clear that the following rights are the incidence of ownership:

• Possession,
• absolute enjoyment,
• exclude others, or exclusive enjoyment,
• disposition or alienation,
• abandon or destruction,
• alteration,
• maintain or retain possession,
• recover possession.

Kinds of Ownership

• Corporeal and Incorporeal Ownership
  • Corporeal ownership is the ownership in tangible material objects (land, building, machinery etc.). Ownership in the incorporeal or intellectual properties which cannot be perceived by senses is called Incorporeal Ownership (such as easement, copyright, trademark etc.).
• Trust and Beneficial Ownership; Legal and Equitable Ownership
  • Under English law, there is ‘duel ownership’ on trust property. First is the ‘legal ownership’ – vested with trustee; and the second, the ‘equitable or beneficial ownership’ – vested with the beneficiary.
• Vested and Contingent Ownership
  • Perfected and absolute title, unbounded by conditions, give rise to vested ownership. When it is subject to conditions and capable of becoming perfect on the fulfilment of conditions is contingent ownership. 
• Sole Ownership and Co-ownership
  • Sole ownership is the ownership of a single person. Co-ownership is the joint-ownership of more than one person.
• Joint Ownership and Co-ownership
  • ‘Tenants in common’ and ‘joint tenants’ differentiates Co-ownership and Joint Ownership
• Absolute and Limited Ownership
  • Absolute title on property, unbounded by conditions creates absolute  ownership. When it is circumscribed by imposition of rights of others or limited in its enjoyment (by restrictions in possession, disposal etc. or burdening by benefits as to trust) it is limited ownership.

Interpretation of Documents: On Issue on Ownership – Question of Law

In Bhikan Sk. Noor Mohd. vs Mehamoodabee Sk. Afzal, AIR 2017 SC 1243, our Apex Court observed that when the issues involved ‘ownership based on interpretation of documents (exhibits), the questions did constitute substantial questions of law’. It was further held as under:

• “18. When the Court is called upon to interpret the documents and examine its effect, it involves questions of law, it is, therefore, obligatory upon the High Court to decide such questions on merits. In this case, the High Court could do so after framing substantial questions of law as required under Section 100 of the Code. It was, however, not done.
• 19. The High Court thus, in our view, committed jurisdictional error when it dismissed the second appeal in limine. We cannot countenance the approach of the High Court.”

Part II

Title, Possession and Ownership Constitute a Triangle

Title, Possession and Ownership upon a property constitute a legally signified triangle.

Because,

• Title (recognition of ownership) with possession manifest absolute rights over a property.
• One can prove his ownership and right to possess, by establishing his title.
• ‘Possession is Good against all but the True Owner’.
• When title on a property is transferred, the ownership and the right to possess also stands transferred.
• ‘Title’ encompasses capacity of individual to exercise absolute right over property and to exclude others.
• Even if a person has no physical possession over a property, he can continue title in various ways.  
• If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the person in (adverse) possession may acquire an absolute title.

Right, Title and Interest constitute a legally signified Triplet

Right, Title and Interest constitute a legal triplet.* It signifies ownership. It is used in drafting deeds of transfer to denote ‘anything and everything’ in a property.

• ^{* Like – ‘if, as and when’; ‘signed, sealed and delivered’; ‘rest, residue and remainder’.}

Right, Title and Interest

• ‘Right’ stands for ‘legal right’ in a property.
• ‘Title’ bespeaks legal recognition of ‘ownership’ in a property.
• ‘Interest’ manifests outcome of ownership with ‘right and title’, including enjoyment in all and whatsoever manner.

In short, each of the upshot of the triplet, ‘Right, Title and Interest’, enunciates same thing when used in property dealings, though they are not be synonyms in language and in jurisprudence.

Property is the sum of a Bundle or Aggregate of Rights

In Guru Datta Sharma v. State of Bihar, AIR 1961 SC 1684,

• “Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include –
  • the right of possession,
  • the right to enjoy,
  • the right to destroy,
  • the right to retain,
  • the right to alienate and so on.”
• Also in Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432)

In Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142, it is held as under:

• “Property in legal sense means an aggregate of rights which are guaranteed and protected by law.”

Settled Possession, Established Possession & Possessory Title

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

• “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

Possessory Title

The term ‘Possessory Title’ (in contrast to legally recognised ‘title appertain to ownership’) arises in the following situations-

• 1. Acquisition of ‘Original Title’: It is acquisition of title contradistinct to ‘derivative’ acquisition of title.
• 2. Possessory Title: ‘Possessory Title’ against everybody other than the lawful owner (For, possession by itself is a substantive right and good title; and ‘Right to Possession’ is a “Property”, under law).
• 3. Statutory title by Adverse Possession: Perfection of title by ‘Adverse Possession’ against the true owner; i.e., (legal) acquisition of title as recognised by Sec. 27 of the Limitation Act. (K V Swamynathan v. E V Padmanabhan, 1991-1 JT 83, 1990-2 Scale 1326)

‘Possessory Title’- On the Premise that ‘Possession’ is a Substantive Right

One who captures a property belonging to none, or reduces such a property to his possession, gets good title against the whole world – as in the case of birds in the air and fishes in the water. And, if it belongs to another, possession of the holder of such property is good title against all but the true owner (Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129); because, possession is the most important objective expression of ownership. According to Salmond, possession is the most basic relationship between men and things, and the possessor should have the ‘animus’ to possess the ‘corpus’.

‘Rival Titles’ in Adverse Possession – Title by ownership & Title by possession

Possessory title by adverse possession is basically a philosophical concept of property law; and it is merely acknowledged in common law and in the Limitation Act. It is explained in the thought provoking article, “Possessory Title: Its True Nexus with the Law of Limitation and the ‘Theory of Relativity’ ” by Anoop Bhaskar, Advocate, Thiruvananthapuram (2022 KLT). It is also pointed out that there are two ‘rival titles’ in a case of adverse possession; i.e., title by ownership (pertain to true owner) & title by possession (pertain to trespasser).

When a plea on adverse possession is propped up, the judicial determination is warranted on rival claims on ‘title on ownership’ and ‘title by adverse possession’; and also, ‘presumptions on title’ and ‘presumptions on possession’. If the trespasser can prove adverse possession against the true owner, as provided under Article 65 of the Limitation Act, the law favours the trespasser endorsing his Possessory Title. The learned author lays down the doctrine of ‘preference’ upon the two ‘rival titles’ as under:

• “It is true by the operation of limitation prescribed under Article 65, the prior owner loses his right or remedy to sue for possession based on title. At this point, the adverse possessor acquires title by the virtue of original acquisition. … In other words, the possessor will have an entitlement to the right to possess the land against others; i.e., he is having the title to possess. At the same time the prior owner will be denying the adverse possessor’s entitlement to possession and be claiming the entitlement to all the incidents of ownership, including possession. Basically, he will be claiming title to ownership on the land. This is how there will exist two rival titles in the case of a title dispute, i.e., title to ownership & title to possession. Now the Courts will be called upon to measure the strength of each title. If the adverse possessor proves that the prior owner has lost his right to recover possession by way of limitation, it will mean that the title of the prior owner will be weaker than adverse possessor.”

Legal Ownership and Possessory Title

The Bombay High Court, in a tort-action for negligence in respect of loss or damage to goods, it is held in Dreymoor Fertilizers Overseas Pte.  Ltd.  v. M. V. Theoforos-1, a vessel flying the flag of Panama (Decided on 18 Mar 2014)  that – to maintain a claim in negligence, legal ownership of or a possessory title to the property must be proved; and that the ‘contractual rights’ upon the goods alone are not sufficient. It is observed as under:

• 21.1 The leading authority in regard to a claim in negligence for loss or damage to cargo is the case of Aliakmon (1986) Vol. 2 Lloyds Law Reports Pg.1) in which the House of Lords has on page 4 set out the legal position :
  • “My Lords, there is a long line of authority for the principle of law that in order to enable a person to claim in negligence for loss caused to him by reason of loss or damage to property, he must have had either the legal ownership or possessory title to the property concerned at the time when the loss or damage occurred and it is not enough for him to have only had contractual right in relation to such property which has been adversely affected by the loss of or damage to it.”
• 21.2 Thus, for the plaintiff to maintain a claim in negligence, he must show that he either had legal ownership of or a possessory title to the property or goods or cargo, whatsoever one may call, at the time when the loss or damage occurred. During the course of submissions, counsel for the plaintiff accepted that the test set out above in the Aliakmon (supra) is the correct test to be applied in order to determine whether the plaintiff can make a claim in tort. Counsel for the plaintiff further accepted that the plaintiff does not have possessory title to the property but has legal ownership and is entitled to maintain a claim in tort.”

In this decision (Dreymoor Fertilizers Overseas), while holding that the only person who had ownership rights alone is entitled for damages, it is held as under:

• “The law was and always had been that an action for negligence in respect of loss or damage to goods could not succeed unless plaintiff was, at the time of tort complained of, owner of goods or person entitled to possession of them. The duty of care is owed only to the owner of the goods or the person entitled to possession [The Wear Breeze] (1967) Vol 2 Lloyds Law Reports Pg 315). As mentioned above, the plaintiff was neither the owner nor entitled to possession. Accordingly defendant owed no duty of care to the plaintiff at the time when goods were damaged.
• In paragraph 5-111, Page 236 from the book “Carver on Bills of Lading 1st Ed.” relied upon by the plaintiff, it reads as under:
  • “….Having no proprietary or possessory rights in the goods, the buyers were simply in the position of persons whose contractual rights to the goods against the seller had been adversely affected by the negligence of the carrier in damaging the goods; and many authorities establish that prejudice of this kind is not sufficient to give rise to a cause of action in negligence.”

Part III

Possessory Title & Adverse Possession

• If ‘no title in either party, possession alone decides’.
• Possession is a good title of right against any one who cannot show a better.

‘Possession is Good Against All But the True Owner’ & Sec. 6 of the Sp. Relief Act

The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73.

The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’. It is held in this decision that if ‘no title in either party, possession alone decides‘.

In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:

• “17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
• 1907 AC 73 reaffirmed the principle by stating quite clearly:
  • “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.”
• Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”

Read Blogs (Click): POSSESSION is a Substantive Right in Indian Law

• When ‘Possession Follows Title’; ‘Title Follows Possession’?

In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:

• “9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond.
• Salmond on Jurisprudence states:­
  • “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.x x x x xIn English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to  restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
  • Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
• 10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
• 11. It was also observed by this Court in Nair Service Society Ltd. (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”

Present Indian Law on Adverse Possession

• In Parry v. Clissold, (1907) AC 73 it was pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner would acquire an absolute title.

After the Limitation Act, 1963, the legal position in India, on Adverse Possession, has been changed as under:

• If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the (adverse) possessory owner may acquire an absolute title.

Because,

• Articles 65 of the Limitation Act, 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession.

The 3 important modern propositions brought-in as to adverse possession (in India) are:

• Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
• Trespasser must know who the true owner is.
• Burden to plead and prove adverse possession is upon the defendant.

Adverse possession arises from the provisions in Article 65 of Limitation Act, 1963. ‘Positive and hostile acts’ of the trespasser is the pre-requirement of Adverse Possession; because, mere possession is not sufficient  under Article 65, but it requires ‘adverse’ possession.

See Blog: Adverse Possession: An Evolving Concept

Article 65 of Limitation Act reads as under:

65. For possession of immovable property or any interest therein based on title.

12 years

When the possession of Defendant becomes adverse to the plaintiff.

In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed that the 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.

Following are the other important decisions on adverse possession:

1. Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
2. PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
3. Ravinder Kaur Grewal v. Manjit KaurAIR 2019 SC 3827.

Prescriptive Rights – Inchoate until the title is upheld by a competent court

The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner). Because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).

No doubt, it is true, one can acquire right of easement or adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.

It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court.

• Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in:
• Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574;
• Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97.
• See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:

• “It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314.)

In Ramanunni Vaidyar v. Govindankutty Nair, 1998(2) Ker LT 47, it is found that a person who has not acquired or perfected a right cannot maintain an action against the owner of the land over which the right is claimed. It is held as under:

• In my view, on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. In other words, a right, properietory or otherwise, has to be shown for obtaining relief (Krishna Pillai v.Kunju Pillai 1990 (1) KLT 136, referred to).

S. 27,  Lim. Act Gives Substantive Right so as to Seek Declaration and Recovery

Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.

Sec. 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.

The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)

Adverse possession confers title under Sec. 27 (by necessary implication, because extinguished title of real owner comes to vest in wrongdoer – because, rights thereon had already been lost to the true owner, and passed over to the ‘possessory/adverse’ owner).

Therefore it is clear that Sec. 27 is a provision in the Limitation Act that gives a substantial right to a party.

Person Acquiring Title by Adverse Possession can use it as a Sword

In view of Sec. 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827: (2019) 8 SCC 729, that the person acquiring title by adverse possession can use it as a sword.

No Decree for Injunction if Possession found to be Illegal

The findings of the High Court in the decision considered by the Supreme Court, in Kesar Bai v. Genda Lal, 2022-10 SCC 217, were the following:

• the plea of ownership based on sale deed and plea of adverse possession were contrary to each other;
• the plaintiffs could not have been permitted to take both the pleas at the same time;
• however, the plaintiff being in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.

Setting aside the High Court judgment the Apex Court held as under:

• “The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.

Document ex-facie reveals no title – specific declaration as to invalidity not necessary

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, held as under:

• “18. …. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”

By proving a deed, title of the executing person is not automatically confirmed

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, also held as under:

• “18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”

---