Adverse Possession: Should Unobstructed Possession Subsist for 12 Years Immediately Preceding the Suit?

Jojy George Koduvath

Should Unobstructed Possession Subsist for 12 Years Immediately Preceding the Suit?

  • No.

Where adverse possession has already ripened into title (by continuous, open, and peaceable possession for a period of 12 years), it is not necessary that such unobstructed possession should subsist for the 12 years immediately preceding the suit. Subsequent disturbance or obstruction within a period of 12 years before the suit is immaterial.

That is, if the claimant has lost possession after perfection, he must have sued for recovery within 12 years from dispossession. (See: Nair Service Society Ltd v. Rev. Father K. C. Alexander, AIR 1968 SC 1165, 1968 (3) SCR 1630.)

It can be explained in this way –

  • Perfection of title — claimant becomes owner.
  • Later dispossession — fresh limitation starts.
  • Period of limitation in such a Suit — 12 years from the date of dispossession.

Adverse Possession – ‘Inchoate’ Until Court Declaration: What it Imports?

Title ripens by operation of law; the court only recognises it.

  • Under the Limitation Act, once the claimant establishes continuous, open, and hostile possession for 12 years, the true owner’s title stands extinguished, and the possessor’s title is perfected. This occurs by operation of law, not by decree; a court does not create the title but merely declares it.
  1. ‘Inchoate’ (Here Indicates Unadjudicated), not legally incomplete.
    • The description of adverse possession as “inchoate” is only a practical expression that the claim has not yet been judicially determined. It does not mean that the right is legally incomplete once the statutory period has run.
  2. The 12 years need not be immediately before the suit
    • It is therefore not necessary that the 12-year period should extend up to the date of the suit.
    • If the title is already ripened earlier, the claimant is, in law, the owner from that point onwards. Therefore, it is necessary to show the beginning of the 12-year period.
    • Later disturbances after perfection of title do not matter unless they amount to dispossession.

S. 27,  Lim. Act Gives Substantive Right – One Can 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. 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.

Read Book No. 5
•  Adverse Possession: A Concise Overview
•  What is Adverse Possession in Indian Law?
•  How to Plead Adverse Possession? 
•  Declaration & Recovery: Art. 65, not Art. 58 Governs
•   Adverse Possession: Dispossession and Knowledge
•   Adverse Possession: Admission of Title of Other Party
•   Ouster and Dispossession in Adverse Possession
•   Does ‘Abandonment’ a Recognised Right in Indian Law?
•   Fraudulent Registration of Deed: No Adverse Possession
•   Does 12 Years’ Unobstructed Possession Precede the Suit?
•   Prescriptive Rights – Is it Inchoate until Upheld by Court
•   Sec. 27, Limitation Act: Right to Declaration and Recovery
•   ‘Possessory Title’ in Indian Law
•   Possession: a Substantive Right Protected in Indian Law
•   ‘Possession is Good Against All But the True Owner’
•   When ‘Possession Follows Title’; ‘Title Follows Possession’
•   Can a Tenant Claim Adverse Possession
•   Adverse Possession Against Government
•   Is Registration of a Deed, Notice to Government?
•   Government of Kerala v. Joseph
•   Adverse Possession: UK and US Law and Classic Decisions

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