ADVERSE POSSESSION – A SWORD AS WELL AS A SHIELD

ADVERSE POSSESSION – A SWORD AS WELL AS A SHIELD

The conception of the adverse possession for a period of 12 years in the case of a private property and 30 years in case of the State property is an ancient concept which has evolved right from the Roman law where it is felt that a competent or a justified owner if sleeps over his rights and somebody else is in action to his rights, keeps on using and being in possession of his property for a long time means that the actual owner is indirectly consenting the person in illegal and adverse possession to enjoy the same. On this theory, Article 65 in the Indian Limitation Act, 1963 is introduced where it has been said that the limitation of dispossession of an individual who is in adverse possession is for a period of 12 years. Article 65 says that limitation for filing of a suit for possession of an immovable property or interest therein based on the ownership title of an individual is 12 years from the date when the possession of the person in possession becomes adverse to the owner of the property.

Facts

The law suit in concern i.e. Ravinder Kaur Grewal Vs. Manjit Kaur[1] was filed by the predecessors of Harbans Singh (Original Appellant) resident of Sangrur, Punjab against his real brothers Mohan Singh and Sohan Singh (Original Defendant no. 1 & 2 respectively) for a declaration that he was the exclusive owner in respect of land admeasuring 11 kanals 17 marlas comprising khasra Nos. 935/1 and 935/2 situated at Mohalla Road and other properties referred to in the Schedule. In the year 1970, a dispute arose among the brothers regarding the property in issue and in a family settlement, it was clearly stated that Harbans Singh will be the owner of the property, inclusive of all the constructions and that the names Mohan Singh and Sohan Singh would exist in the revenue record as owners to the extent of half share. He claimed that the family settlement was executed in the presence of all their family members in which the ownership of Harbans Singh and possession in respect of the suit land including the constructions thereon (16 shops, a samadhi of his wife – Gurcharan Kaur and one service station with boundary wall) was accepted and acknowledged by all the concerned members. Structures were constructed by him in his competency as the owner of the suit land. However, defendants raised a dispute claiming that half share of which the plaintiff Harbans Singh was accepted to be the ultimate owner. The result of the dispute being the execution of a memorandum of settlement on 10.03.1988, incorporating the terms that were settled among the parties. Though, after the execution of the memorandum of settlement, the defendants raised another issue to resile from the said arrangement which led Harbans Singh to file a suit for declaration on 09.05.1988 praying for a decree that he was the owner in possession of the disputed land and additionally, and alternative plea that the plaintiff acquired ownership rights through ‘adverse possession’ as he was in possession of the whole property with the knowledge of the defendants for more than 12 years. 

During the pendency of the suit, Harbans Singh expired so his legal heirs were brought on record as appellants. The trial court on 19.01.2000 partly decreed the suit to the extent that the plaintiff is declared to be the owner in possession of khasra no. 935/1/1/2 (5-18) and to the extent of half share in khasra no. 935/1/1/1 (5-19) including the construction thereupon and no cost be levied on the parties keeping in view the close relationship.

Unsatisfied with the decision, the appellants filed for the first appeal before the district judge, Sangrur. The first appellate court on 29.11.2003 declared the original plaintiff as the owner of the suit land i.e. the land measuring 11 kanals 17 marlas comprised in rectangle and killa no. 935/1/1/1 (5­19), 935/1/1/2 (5­18) situated in Mehlan Road, Sangrur along with construction including 16 shops, a service station and boundary wall with samadhi and the parties are left to bear their own costs. 

The respondent nos. 1 to 3 being legal representatives of Mohan Singh (Defendant no. 1) went for a second appeal[3] before the High Court. The High Court set aside the order by the first appellate court and laid down that the document which for the first time, creates a right in favour of plaintiff in an immovable property in which he has no pre­ existing right would require registration, being the mandate of law. Accordingly, the second appeal came to be allowed and the judgment and decree passed by the lower appellate Court was set aside, thereby restoring the decree passed by the trial Court, vide impugned judgment dated 27.11.2007. 

The appellants then questioned the view taken by the High court and particularly, reversing the order reached by the first appellate court. When this appeal was taken up for hearing, the Court referred the matter to a larger Bench of three ­Judges to answer the question – “whether the acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act, 1963 and is there any bar under the Limitation Act to sue on aforesaid basis in case of infringement of any rights of a plaintiff?” The appeal accordingly proceeded before the three ­Judge Bench, which in turn answered the said question vide judgment dated 7.8.2019 in favour of the plaintiff. 

It was contended that the High Court disposed of the second appeal very casually and, without dealing with the finding of fact recorded by the first appellate Court in favour of the plaintiff. It is urged that the first appellate Court, after noticing the admitted factual position, proceeded to first examine the question whether the document dated 10.3.1988 (Memorandum of Settlement[4]) was executed by the parties or not. That fact has been answered in favour of the plaintiff (appellants) after analyzing the evidence on record. It was held that the stated document was indisputably executed by the parties. 

The next question considered by the first appellate Court was whether the stated document required registration or not, which has been justly answered in favour of the plaintiff (appellants) on the finding that it was merely a memorandum of family settlement and not a document containing terms and recitals of the settlement made there under. For that, the first appellate Court noted that the plaintiff had constructed 16 shops and a samadhi including boundary wall on the suit land on his own, which fact was indisputable and established from the evidence on record. Further, the plaintiff was in possession of the suit land. Even this finding is supported by the evidence on record and is well­ established. It is also established from record that as per the family settlement, the plot in Prem Basti belonging to Harbans Singh (plaintiff) was given to Sohan Singh (original defendant No.2), which was in possession of Mohan Singh (original defendant No. 1) and that another plot purchased by plaintiff in the name of his son Vikramjit Singh was given to Mohan Singh (original defendant No. 1) and his wife which was later sold to one Surjit Kaur. In substance, it is established that the parties had acted upon the family settlement, which was recorded in the form of document ­ Exhibit P­6.

The Core Issue Involved in Appeal

whether the document Exhibit P­6 was required to be registered as interest in immovable property worth more than Rs.100/­ was transferred in favour of the plaintiff?

It is evident that the High Court has not dealt with the factual aspects adverted to by the first appellate Court to conclude that the document Exhibit P­6 was only a memorandum of family settlement and not a document containing the terms and recitals of a family settlement. Being the former, no registration was necessary. For which reason, relief claimed by the plaintiff founded on the family settlement between the real brothers arrived at in 1970, acted upon without any exception and documented on 10.3.1988, ought to follow.

Considering the abovementioned aspects, it was concluded that the High Court committed manifest error in interfering with and in particular reversing the well­ considered decision of the first appellate Court, which had justly concluded that document dated 10.3.1988 executed between the parties did not require registration. It must follow that the relief claimed by the plaintiff in the suit, as granted by the first appellate Court ought not to have been interfered with by the High Court and more so, in a casual manner, as adverted to earlier. For the completion of record, it was mentioned by the judges that in fact, the trial Court had found that the possession of the plaintiff was only permissive possession and that finding has not been disturbed by the first appellate Court. In such a case, it is doubtful that the plaintiff can be heard to pursue relief, as prayed on the basis of his alternative plea of adverse possession. Therefore, in the end, the appeal was allowed, the impugned judgment of the high court was set aside and decree passed by the first appellate court in favour of the plaintiffs was restored.

This article is authored by Shreya.


[1] CIVIL APPEAL NO. 7764 OF 2014

[2] Civil Appeal No. 45 of 5­2­2000 B.T. No. 60 of 11­6­2001

[3] R.S.A. No. 946/2004

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