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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Alpha Corp Development Private Limited v. Greater Noida Industrial Development: Findings on Lifting Corporate Veil of Companies and Subsidiary Companies

Jojy George Koduvath

In Alpha Corp Development Private Limited v. Greater Noida Industrial Development (Sanjay Kumar Alok Aradhe, JJ.), 2026 INSC 449, the Supreme Court of India considered – Lifting Corporate Veil of Companies and Subsidiary Companies.

Findings on Lifting Corporate Veil, in a Nutshell

  • 1. Each case that comes before a Court, in the context of lifting of the corporate veil, would have to turn upon its own individual facts.
  • 2. In BRS Ventures Investments Limited vs. SREI Infrastructure Finance Limited and another,  (2025) 1 SCC 456, it is reiterated that a holding company and its subsidiaries are distinct legal entities and merely because the holding company owns the entire shareholding in the subsidiary company, it would not dilute its separate legal existence. No doubt, the concept of holding companies and subsidiary companies is firmly entrenched in our corporate scenario and once it is established that the holding and subsidiary companies are independent legal entities in their own right, the sanctity of such legal status has to be maintained unless circumstances exist that require lifting/piercing of the corporate veil.”
  • 3. In Life Insurance Corporation of India vs. Escorts Ltd. and others (1986) 1 SCC 264  in the context of lifting of the corporate veil:
    • “…..Generally and broadly speaking, we may say that the corporate veil may be lifted where a statute itself contemplates lifting the veil, or fraud or improper conduct is intended to be prevented, or a taxing statute or a beneficent statute is sought to be evaded or where associated companies are inextricably connected as to be, in reality, part of one concern.”
  • 4. In ArcelorMittal India Private Limited vs. Satish Kumar Gupta and others, (2019) 2 SCC 1, this Court affirmed that where protection of public interest is of paramount importance or where a company has been formed to evade obligations enforced by law and by the Courts, the Court would disregard the corporate veil.
  • 5. In reality, associated or group companies are inextricably connected so as to form part of one concern, the corporate veil should be lifted.

The relevant paragraphs are 53 to 56.

They read as under:

  • “53. “The sheet anchor of GNIDA’s case (Greater Noida Industrial Development Authority) is that the assets of subsidiary companies cannot be made part of the assets of the holding company that was subjected to CIRP proceedings. Section 2(87) of the Companies Act, 2013, defines a subsidiary company or subsidiary to mean a separate legal entity. Reliance was placed by GNIDA upon the recent judgment of this Court in BRS Ventures Investments Limited vs. SREI Infrastructure Finance Limited and another  (2025) 1 SCC 456, which reiterated that a holding company and its subsidiaries are distinct legal entities and merely because the holding company owns the entire shareholding in the subsidiary company, it would not dilute its separate legal existence. No doubt, the concept of holding companies and subsidiary companies is firmly entrenched in our corporate scenario and once it is established that the holding and subsidiary companies are independent legal entities in their own right, the sanctity of such legal status has to be maintained unless circumstances exist that require lifting/piercing of the corporate veil. The question that arises is whether this was a fit case to lift the corporate veil. Though the NCLAT was averse to doing so, we are inclined to hold otherwise. In that regard, we may refer to the observations of a Constitution Bench in Life Insurance Corporation of India vs. Escorts Ltd. and others (1986) 1 SCC 264  in the context of lifting of the corporate veil:
    • ‘…..Generally and broadly speaking, we may say that the corporate veil may be lifted where a statute itself contemplates lifting the veil, or fraud or improper conduct is intended to be prevented, or a taxing statute or a beneficent statute is sought to be evaded or where associated companies are inextricably connected as to be, in reality, part of one concern. It is neither necessary nor desirable to enumerate the classes of cases where lifting the veil is permissible, since that must necessarily depend on the relevant statutory or other provisions, the object sought to be achieved, the impugned conduct, the involvement of the element of public interest, the effect on parties who may be affected, etc.’
  • 54. As is clear from the aforestated observations when, in reality, associated or group companies are inextricably connected so as to form part of one concern, the corporate veil should be lifted. Applying this principle in ArcelorMittal India Private Limited vs. Satish Kumar Gupta and others (2019) 2 SCC 1, this Court affirmed that where protection of public interest is of paramount importance or where a company has been formed to evade obligations enforced by law and by the Courts, the Court would disregard the corporate veil. It was further observed that this principle would be applied even to group companies so that one is able to look at the economic entity of the group as a whole.
  • 55. Neo Multimedia Limited and Nishtha Software Private Limited were both wholly owned subsidiaries of EIL (Earth Infrastructures Limited), the CD (Earth Infrastructures Limited, the corporate debtor). They had leases over the lands in which EIL was to develop the projects, viz., Earth TechOne and Earth Sapphire Court. ETIPL was incorporated only to enable GNIDA’s leasing of land for development of Earth Towne and was controlled by EIL, with a 98% shareholding. ETIPL, therefore, stands on a different footing from the other two companies, insofar as GNIDA is concerned. In any event, we may note that all three companies either share common directors with EIL and/or have their relations as directors. The only assets of the three companies were the lands leased out to them by GNIDA for these projects. The companies’ shareholdings indicate that EIL was the dominant and majority shareholder.
  • 56. Further, GNIDA was clearly aware that it was EIL, the CD, that was developing the projects on the lands leased out by it to the three companies. GNIDA cannot claim ignorance of this on the mere ground that it was not a party to the development agreements/MoU. This was the situation in relation to two projects – Earth Sapphire Court as well as Earth TechOne. Insofar as Earth Towne is concerned, as already stated, GNIDA itself required the consortium of the three companies to incorporate a SPC and it was pursuant to this requirement, that ETIPL was brought into existence. Further, the lease deed executed by GNIDA in favour of ETIPL made it clear that EIL was to be the lead member of ETIPL, retaining its majority shareholding as well as its lead role. It is an admitted fact that EIL, which had a 78% shareholding in ETIPL, increased it to 98%. ETIPL executed an agreement conferring the right to develop the project on the leased land in favour of EIL. GNIDA cannot, therefore, look askance at the role played by EIL in the development of Earth Towne. More so, in the light of its own letter to the police authorities acknowledging EIL’s role in the development of Earth Towne, which we have already referred to. In effect, GNIDA cannot claim ignorance of the constructions by EIL in relation to all three projects. Each case that comes before a Court, in the context of lifting of the corporate veil, would have to turn upon its own individual facts. Given the facts obtaining presently, we are of the firm view that this was an eminently fit case for lifting the corporate veil, as EIL was the main driving force in the development of the projects and in payment of GNIDA’s dues. The subsidiary companies were only a front. In the light of this finding, we deem it unnecessary to deal with the issue raised in the context of Sections 18 and 25 of the Code, apropos the scope of the term ‘assets’.”

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Read in this Cluster (Click on the Topic)

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Dispossession and Knowledge: Essential Requirements of Adverse Possession

Though these requirements are are not expressly spelt out in Article 65 of the Limitation Act, as well as in the maxim nec vi, nec clam, nec precario, they are implicit in this Article and in this maxim.

Saji Koduvath, Advocate, Kottayam.

Abstract

Two distinctive and interrelated key elements are emphasised in the law of adverse possession in India:

  • First, intention of the claimant—to possess the land of another with a positive intent to dispossess him; and
  • Second, knowledge of the true owner—possession of the claimant must be open and hostile enough to impute knowledge thereof to the true owner.

These elements of ‘dispossession‘ and the true owner’s knowledge are not expressly stated either in Article 65 of the Limitation Act, 1963, or in the classic trinity—nec vi, nec clam, nec precario—but have been developed through judicial exposition by the Supreme Court of India.

The following are the leading decisions in Indian law on this issue:

  • T. Anjanappa v. Somalingappa, 2006-7 SCC 570 (Arijit Pasayat and Lokeshwar Singh, Panta, JJ.)’
  • PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753 (S.B. Sinha and Markandey Katju, JJ.),

Key Takeaways

1. Article 65 of the Limitation Act, 1963, lays down the period of limitation for adverse possession as 12 years. It reads as under:

65. For possession of immovable property or any interest therein based on title.12 yearsWhen the possession of defendant becomes adverse to the plaintiff.

2. The words in Article 65 — ‘when the possession of the defendant becomes adverse to the plaintiff‘ — necessarily contemplate a “knowledge” on the part of the plaintiff. Such ‘knowledge‘ must have been perceived or obtained by the true owner from the claimant’s open, hostile and notorious acts asserting title.

3. Though the doctrine of adverse possession is statutorily recognised, it is not expressly defined in any statute. Indian common law requires the co-existence of the classic trinity—nec vi, nec clam, nec precario. It can be explained as under:

  • Nec vi: i.e. not by force –implying peaceability,
  • Nec clam: i.e. not in secrecy – implying publicity, and
  • Nec precario: i.e. not by permission –implying possession without the true owner’s consent, and thus adverse to him.

4. In adverse possession, the claimant’s intention to possess (animus possidendi) is decisive. The state of mind of the true owner is not determinative. What matters is the claimant’s outward assertion of hostile possession, sufficient to impute (and thereby infer) knowledge to the owner.

  • (‘Animus‘, in Latin, denotes “intention” or “state of mind;”
  • ‘possidendi‘ means “to possess.”)

5. The ‘animus’ required for adverse possession is the animus to possess the land, coupled with the conscious aim and objective of ‘dispossessing‘ the true owner.

6. To establish the requirement ‘adverse’, the trespasser must know who the true owner is.

7. The doctrine of animus possidendi and the classical common-law formulation—nec vi, nec clam, nec precario—are widely recognised across common-law jurisdictions, including the United Kingdom, Australia, Canada, New Zealand, the United States, Ireland, Singapore, Malaysia, and several Caribbean and African countries.

  • Distinctive features of Indian law: The specific requirements of dispossession and the true owner’s knowledge are peculiarities of Indian law. It flows from the language of Article 65—“when the possession of the defendant becomes adverse to the plaintiff.”

8. The distinctive statutory phrasing in the Indian law (“when the possession of the defendant becomes adverse to the plaintiff”) casts the burden of proof on the claimant.

9. In other Commonwealth jurisdictions, the statutes focus on the accrual of the right of action the moment the owner is dispossessed; they do not qualify it as the possession “becomes adverse.”

  • 1. United Kingdom (England & Wales): Section 15 of the Limitation Act 1980, – 12 years from the date on which the “right of action accrued.”
  • 2. Malaysia: Section 9 of the Limitation Act, 1953 – 12 years from the date the “right of action first accrued.”
  • 3. Singapore: Section 9 of the Singapore Limitation Act (Chapter 163) – 12 years when the right of action accrues.
  • 4. Australia: Vary by state, but they generally follow the “accrual of right”.
  • 5. Canada: “When the right to make an entry or distress or to bring an action first accrued.”

“Becomes Adverse to the Plaintiff”

Article 65 of the Limitation Act reads—“becomes adverse to the plaintiff”. It directly embraces doctrines of dispossession and the owner’s knowledge. In other common-law jurisdictions, these requirements do not remain in statutes; they exist only as implicit or judge-made inferences.

“Knowledge” as to Adverse Possession

Drastic changes have been made to the law on Adverse Possession by the 1963 Limitation Act. It introduced the words – “when the possession of the defendant becomes adverse to the plaintiff“.

Acts and Claims must be Hostile Enough to bring the Knowledge of the Owner

The ‘knowledge’ required to establish adverse possession is that which is brought home to the true owner through the claimant’s positive, open, and hostile acts, sufficient to convey a clear assertion of title adverse to the owner.

In T. Anjanappa v. Somalingappa, 2006-7 SCC 570, it is held as under:

  • “It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owners title must be peaceful, open and continuous.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.”
  • (Quoted in: Annakili v. A. Vedanayagam, AIR 2008 SC 346; 2007-14 SCC 308,
  • Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517,
  • Annakili v. A. Vedanayagam, AIR 2008SC 346; 2007 14 SCC 308,
  • Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316.
  • See also: PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753,
  • Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756.)

Therefore, one line of enquiry in a case of adverse possession, will be –

  • whether the true owner had the required knowledge of the hostile acts of the claimant
  • and was there a means or chance of knowing such hostile acts.

Does registration of a deed work against true owner in suits on ‘Adverse Possession’

In Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J.), the suit property was sold only within the family members. Therefore, the co-owner against whom adverse possession was claimed was not in a position to know about the sale. She knew only at a later point of time. Hence it was held – that the registration is only a constructive notice to the person who has subsequently acquired such property (Explanation I of Sec. 3 of the Transfer of Property Act); and that if the proposition  that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers.

Read also: Is Registration of a Deed, Notice to Govt. and Public so as to Attract Adverse Possession?

Intention to Dispossess; Long Mistaken Possession Not Enough

The ‘animus’ or intention required for adverse possession is not the mere intention to possess, but an intention to possess in a manner that effectively excludes or dispossesses the true owner.

  • Article 65, Limitation Act, lays down the period of 12 years from ‘dispossession‘.
  • Therefore, the ‘animus’ required in adverse possession is animus to possess, coupled with the conscious intent to ‘dispossess‘ the true owner.

In PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, it is observed as under:

  • “Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.”

It is finally held as under:

  • “The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess.”

‘Peaceful Possession’ Denotes Owner’s Inaction Despite Knowledge of Hostile Claim

‘Peaceful possession’ is an essential ingredient in perfecting adverse possession. It is embedded in the requirement of nec vi (not by force). It denotes possession of the claimant that continues without disturbance, notwithstanding his open and hostile acts. In other words, despite such acts—sufficient to make out knowledge of the adverse claim to the true owner—the owner fails to take steps to resist or interrupt such (hostile or unauthorised) possession.

In Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, it has been held as under:

  • “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence, he would have known it.”
  • (Quoted in: Neelam Gupta v. Rajendra Kumar Gupta, AIR 2024 SC 5374; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46; Krishnamurthy S. Setlur v. OV Narasimha Setty, 2020-12 SCC 244.)

In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, it is pointed out:

  • “The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner.”

See also:

  • Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517,
    Annakili v. A. Vedanayagam, AIR 2008SC 346; 2007 14 SCC 308,
    Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316

Owner must have Failed to Respond the ‘Notorious facts’ 

To invite adverse possession, the owner must have failed to ‘take notice of‘ the ‘notorious facts‘,  despite the knowledge of the acts (of the claimant) under the colour of a hostile title.

In P. Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, it was observed as under:

  • “7…Consonant with this principle, the commencement of adverse possession, in favour of a person, implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.” (Quoted in: M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1)

In Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639, it was observed as under:

  • “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

Should the Party claim Adverse Possession must KNOW the Actual Owner? 

Yes.

In M. Radheshyamlal v. V. Sandhya, (Abhay S. Oka & Ujjal Bhuyan, JJ.), AIR 2024 SC 1595, as under:

  • “12. Therefore, to prove the plea of adverse possession:-
  • (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
  • (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
  • (c) The plaintiff must also plead and establish when he came into possession; and
  • (d) The plaintiff must establish that his possession was open and undisturbed.
  • It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.
  • 13. … When a party claims adverse possession, he must know who the actual ownerof the property is. Secondly, he must plead that he was in open and uninterrupted possession for more than 12 years to the original owner’s knowledge….”

If it is Not SURE for the Claimant who is the True Owner, No Adverse Possession

Adverse possession is hostile possession which is expressly or impliedly in denial of title of the true owner. To attract adverse possession there must be animus possidendi to hold the land adverse to the title of the true owner (Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316; M. Venkatesh v. BDA, 2015-17 SCC 1; Brijesh Kumar v. Shardabai, 2019-9 SCC 369) with the knowledge of the true owner.

If the defendants are not SURE who the true owner is, there will be no question of possessing the property hostile to the true owner.

In T. Anjanappa v. Somalingappa, 2006-7 SCC 570, it is held as under:

  • …The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not SURE who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not raise…… Therefore, the defendants are in possession and enjoyment of the property knowing fully well that the property belonged to the plaintiff’s father and the plaintiff’s vendor also did not take any action to evict them and the plaintiff and his vendor were aware that the properties belonged to them and despite the same, the plaintiff’s vendor did not take any action to evict them. Hence, the appellants/defendants have also perfected title by adverse possession. Therefore, the 2nd substantial question of law of is answered in favour of the appellants/defendants.”
  • (Followed in: .
    • T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59;
    • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46)

Conclusion

  • Adverse possession, under Indian law, is generally expressed in terms of an intention to possess (animus possidendi).
  • It is further qualified by the requirement that such possession must be nec precario, i.e., not by permission (of the true owner).
  • In its settled common law formulation (over and above the statutory period fixed in Article 65, Limitation Act), adverse possession must be:
    • hostile in character;
    • open and notorious;
    • manifested through overt acts which exclude and dispossess the true owner; and
    • of such a nature as to bring home knowledge of the adverse claim to the true owner.
  • The phrase “becomes adverse to the plaintiff” in Article 65 of the Limitation Act supports the doctrines of dispossession and the owner’s knowledge.
Read Book No. 5
•  Adverse Possession: A Concise Overview
•  What is Adverse Possession in Indian Law?
•   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?
•   Illegal or Fraudulent Regn. 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
•  Declaration & Recovery: Art. 65, not Art. 58 Governs
•  ‘Possessory Title’ in Indian Law
•   Possession: a Substantive Right Protected in Indian Law
•   Recovery Based on Title and on Earlier Possession
•   ‘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 Govt. and Public?
•   Government of Kerala v. Joseph
•   Adverse Possession: UK and US Law and Classic Decisions
•   22nd Law Commission  Report
•  How to Plead Adverse Possession? 

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Read in this Cluster (Click on the Topic)

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Adverse Possession: Legal Principles and Classic Cases in the UK and the US

Saji Koduvath, Advocate, Kottayam

Adverse Possession, Indian Law Require – (i) Dispossession and (ii) Knowledge

1. Article 65 of the Limitation Act, 1963, lays down the period of limitation for adverse possession as 12 years. It reads as under:

65. For possession of immovable property or any interest therein based on title.12 yearsWhen the possession of Defendant becomes
adverse to the plaintiff.

2. The words in Article 65 — ‘when the possession of the defendant becomes adverse to the plaintiff‘ — necessarily contemplate a “knowledge” on the part of the plaintiff. Such ‘knowledge‘ must have been perceived or obtained by the true owner from the claimant’s open, hostile and notorious acts asserting title.

3. Though the doctrine of adverse possession is statutorily recognised, it is not expressly defined in any statute. Indian common law requires the co-existence of the classic trinity—nec vi, nec clam, nec precario. It can be explained as under:

  • Nec vi: i.e. not by force –implying peaceability,
  • Nec clam: i.e. not in secrecy – implying publicity, and
  • Nec precario: i.e. not by permission –implying possession without the true owner’s consent, and thus adverse to him.

4. In adverse possession, the claimant’s intention to possess (animus possidendi) is decisive. The state of mind of the true owner is not determinative. What matters is the claimant’s outward assertion of hostile possession, sufficient to impute (and thereby infer) knowledge to the owner.

  • (‘Animus‘, in Latin, denotes “intention” or “state of mind;”
  • ‘possidendi‘ means “to possess.”)

5. The ‘animus’ required for adverse possession is the animus to possess the land, coupled with the conscious aim and objective of ‘dispossessing‘ the true owner.

6. To establish the requirement ‘adverse’, the trespasser must know who the true owner is.

7. The doctrine of animus possidendi and the classical common-law formulation—nec vi, nec clam, nec precario—are widely recognised across common-law jurisdictions, including the United Kingdom, Australia, Canada, New Zealand, the United States, Ireland, Singapore, Malaysia, and several Caribbean and African countries.

  • However, the specific requirements of dispossession and the true owner’s knowledge are distinctive features of Indian law, flowing from the language of Article 65—“when the possession of the defendant becomes adverse to the plaintiff.”

8. The distinctive statutory phrasing in the Indian law (“when the possession of the defendant becomes adverse to the plaintiff”) casts the burden of proof on the claimant.

9. In other Commonwealth jurisdictions, the statutes focus on the accrual of the right of action the moment the owner is dispossessed; they do not qualify it as the possession “becomes adverse.”

  • 1. United Kingdom (England & Wales): Section 15 of the Limitation Act 1980, – 12 years from the date on which the “right of action accrued.”
  • 2. Malaysia: Section 9 of the Limitation Act 1953 – 12 years from the date the “right of action first accrued.”
  • 3. Singapore: Section 9 (Chapter 163)of the Singapore Limitation Act – 12 years when the right of action accrues.
  • 4. Australia: Vary by state, but they generally follow the “accrual of right”.
  • 5. Canada: “When the right to make an entry or distress or to bring an action first accrued.”

English Common Law

The law of adverse possession in most Commonwealth countries traces back to English Common Law and is built around three essential elements:

  • Factual possession — actual, exclusive control over the land;
  • Animus possidendi — intention to possess as owner;
  • Possession adverse to the true owner — without permission, and inconsistent with the owner’s title.

In those countries, the following principles of adverse possession are broadly recognised:

  • Possession must be open, notorious, and continuous;
  • It must be nec vi, nec clam, nec precario (without force, secrecy, or permission);
  • The true owner’s title is extinguished upon expiry of the limitation period;
  • The claimant’s acts must be such as to put the true owner on notice of hostile possession.

Enacted Laws

  • India: Governed by the Limitation Act, 1963 (Articles 64–65). Title is extinguished after limitation expires.
  • UK: Traditional law under the Limitation Act 1980, but significantly modified for registered land by the Land Registration Act 2002, introducing a notice-based regime favouring the registered owner.
  • United States: There is no single, uniform federal law on adverse possession. The doctrine is governed entirely by state statutes (often within property or civil procedure codes), so the enacted laws vary from state to state. The statutes across the U.S. share a common structure and typically codify the same core elements.
  • Australia: State-based statutes; some Torrens systems restrict adverse possession against registered titles.
  • Canada: Varies by province; in some (e.g., Ontario for registered land), adverse possession is largely curtailed.

Knowledge of True Owner

  • India: Strong judicial emphasis that possession must be open and hostile enough to impute or attribute knowledge to the true owner.
  • UK (post-2002): Actual notice mechanisms reduce reliance on “imputed knowledge.”
  • Australia/Canada: Mixed approaches depending on title system (Torrens vs. unregistered land).

The formulations of the maxim, in adverse possession, nec vi, nec clam, nec precario, are uniformly embodied in substantive content, though varied in language, in Commonwealth Countries.

The United Kingdom

Now it is difficult and unlikely to ‘acquire’ (title of) registered land through ‘squatting’ (perfecting adverse possession). Because the Land Registration Act, 2002, requires registration of lands acquired through adverse possession. Upon such registration, the original owner will be informed of this matter. The owner can make his objections, if any. He can also repossess within two years after being informed by the Land Registry.

The Limitation Act, 1980: Section 15 of the Limitation Act, 1980, provides as under:

  • “15(1). No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
  • “(6). Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.”

Schedule 1, paragraph 1 provides:

  • “Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.”

Schedule 1, paragraph 8 provides:

  • “8(1). No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as ‘adverse possession’); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.”
  • “(4). For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.
  • “This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”

JA Pye (Oxford) Ltd v. Graham: Before the Land Registration Act, 2002

JA Pye (Oxford) Ltd v. Graham [2002] was rendered by the House of Lords, on adverse possession. This was a matter before the Land Registration Act, 2002.  

  • Note: This principle is followed in the celebrated decision, P.T. Munichikkanna Reddy v. Revamma (S.B. Sinha and Markandey Katju, JJ.), AIR 2007 SC 1753: (2007) 6 SCC 59. (Also referred to in Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti Ltd. v. State of Rajasthan, 2013-11 SCC 1; State of Haryana v. Mukesh Kumar, 2011-10 SCC 404; Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517; M/s Entertainment Network (India) Ltd. v. M/s Super Cassette Industries Ltd., 2008-17 SCC 769.)
  • Also Note: The later case, J.A. Pye (Oxford) Ltd v. United Kingdom, which addressed a different question (whether UK adverse possession law violated Article 1 of Protocol No. 1 (right to property) was overruled in appeal, by the Fourth Section (Chamber) of the European Court of Human Rights (ECHR).

Facts of the case: Pye, the Director of the company, acted through its director. He allowed his neighbours, the Grahams, to use 23 hectares (57 acres) he owned under a grazing agreement. The agreement period ended on 31 December 1983. Pye did not enter into another agreement because he wanted to develop the land. After 12 years, the Grahams sought to obtain it under the law of adverse possession.

High Court Judgment: In the High Court, Neuberger J., held – under the Land Registration Act, 1925 the Grahams were the lawful owners of the land as Pye had failed to take possession of this land within the statutory time.  There was adverse possession in registered land.

Court of Appeal: The Court of Appeal overturned the ruling of the High Court and held that the Grahams were only using the land because of the grazing agreement, thus they hadn’t been in possession of it (so as to hold adverse possession).

House of Lords: In JA Pye (Oxford) Ltd v. Graham, [2002] UKHL 30, [2003] 1 AC 419, the House of Lords unanimously rejected the Court of Appeal’s decision and restored Neuberger J.’s decision finding adverse possession. It was observed by the House of Lords that the squatter’s intention (to exclude the owner) is decisive, and not that of the true owner.

JA Pye (Oxford) Ltd v. Graham proceeded as  under:

  • “43 A similar manifestation of the same heresy is the statement by Sir Nathaniel Lindley MR in Littledale v, Liverpool College [1900] 1 Ch 19, 23 that the paper owners
    • “could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi–ie, occupation with the intention of excluding the owner as well as other people”.
  • This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell’s case 38 P & CR 452, 471-472, Slade J.*fn found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. Slade J reformulated the requirement (to my mind correctly) as requiring an
    • “intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”.
  • “45. ….. The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. It reflects an attempt to revive the pre-1833 concept of adverse possession requiring inconsistent user. Bramwell LJ’s heresy led directly to the heresy in the Wallis’s Cayton Bay line of cases to which I have referred, which heresy was abolished by statute. It has been suggested that the heresy of Bramwell LJ survived this statutory reversal but in the Moran case the Court of Appeal rightly held that however one formulated the proposition of Bramwell LJ as a proposition of law it was wrong. The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.”
  • *fn The Powell v. Mcfarlane (1977) 38 P & CR (Property, Planning & Compensation Reports) 452. It was held Slade J., Chancery Division, as under:
    • “If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”
    • “In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.”
    • “What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow.”
    • (Quoted in JA Pye (Oxford) Ltd v. Graham and PT. Munichikkanna Reddy v. Revamma)

The United States – Ewing v Burnet

Most U.S. statutes require possession to be:

  • Hostile (without permission)
  • Actual (physical use of the land)
  • Open and notorious (visible so the owner can notice)
  • Exclusive (not shared with the true owner or public)
  • Continuous (for the statutory period). See: Ewing v Burnet, 36 U.S. (11 Pet.) 41 (1837).

Ewing v Burnet, 36 U.S. (11 Pet.) 41 (1837)

It is held by the U.S. Supreme Court, in Lessee of Ewing v. Burnet, 36 U.S. 11 Pet. 41 (1837) as under:

  • “It is well settled that to constitute an adverse possession, there need not be a fence, building, or other improvement made; it suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in controversy for twenty-one years after an entry under claim and color of title. So much depends on the nature and situation of the property, the uses to which it can be applied or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule adapted to all cases. But it may with safety be said that where acts of ownership have been done upon land which from their nature indicate a notorious claim of property in it and are continued for twenty-one years with the knowledge of an adverse claimant, without interruption, or an adverse entry by him for twenty-one years, such acts are evidence of an ouster of a former owner and an actual adverse possession against him if the jury shall think that the property was not susceptible of a more strict or definite possession than had been so taken and held.”

U.S. Statutes in various States

California

  • Governed by the California Code of Civil Procedure § 325
  • Requires:
    • 5 years’ continuous possession
    • Payment of property taxes
    • Claim often supported by color of title

New York

  • Governed by the New York Real Property Actions and Proceedings Law § 501–551
  • Statutory period: 10 years
  • 2008 reforms clarified “hostility” and limited claims based on minor encroachments

Texas

  • Governed by the Texas Civil Practice and Remedies Code §§ 16.021–16.030
  • Multiple limitation periods:
    • 3 years (with title or color of title)
    • 5 years (with tax payment and deed)
    • 10 years (bare possession)
    • Up to 25 years in some cases

Florida

  • Governed by the Florida Statutes § 95.16 and § 95.18
  • Distinguishes between:
    • With color of title
    • Without color of title (requires tax payment and filing)

Illinois

  • Governed by the Illinois Compiled Statutes 735 ILCS 5/13-101
  • Period: 20 years (general rule)
Read Book No. 5
•  Adverse Possession: A Concise Overview
•  What is Adverse Possession in Indian Law?
•  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’
•   ‘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
•  How to Plead Adverse Possession? 

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this Cluster (Click on the Topic)

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Is Registration of a Deed, Notice to Government and Public so as to Attract Adverse Possession?

Read also: Does Registration of a Document give Notice to the Whole World?

Saji Koduvath, Advocate, Kottayam.

Is Registration of a Deed, Notice to Government and General Public?

No.

The duty of a Sub-Registrar is ministerial and administrative.

  • The Sub-Registrar performs the act of registration in a purely ministerial and administrative capacity.
  • It is not a quasi-judicial function, either.
  • Registration is a statutory function. It is strictly governed by the provisions of the enactment and the rules framed thereunder.
  • In discharging this function, the Sub-Registrar does not represent anybody, including the State.
  • He exercises no adjudicatory power.
  • The Sub-Registrar has no discretion beyond what is expressly conferred by statute.
  • Neither the Act nor the Rules contemplate or confer any such duty or authority on the Sub Registrar.

For the above, it cannot be said – the Sub Registrar receives or accepts notice on behalf of the Government.

Is Registration of a Deed, ‘Notice’ to Invite Adverse Possession 

No.

To invite adverse possession, the owner must have failed to take care to know notorious facts,  despite the knowledge of the acts under the colour of a hostile title.

  • “7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.” (Quoted in: M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1)

Does registration of a deed work against true owner in suits on ‘Adverse Possession’ (if he has no notice as to registration of the deed )?
No. (Arabia Bibi v. Sarbunnisa: 2011, Madras)

Proposition ‘as to Notice to entire world’ is Not accepted in Adv. Possn. Claim

In Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J.), the suit property was sold only within the family members. Therefore, the co-owner against whom adverse possession was claimed was not in a position to know about the sale. She knew only at a later point of time. Hence it was held – that the registration is only a constructive notice to the person who has subsequently acquired such property; and that if the proposition  that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers.

Read Also: Dispossession and Knowledge: Essential Requirements of Adverse Possession

“Knowledge” as to Adverse Possession

The “knowledge” required to establish adverse possession is that which is brought to the true owner through the claimant’s open and hostile assertion of title. The burden of proving such knowledge lies squarely on the person asserting adverse possession.

Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, has held as under:

  • “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. ….. Trespasser’s long possession is not synonymous with adverse possession…”

Does Regin. of a Deed Confer Knowledge as to Adv. Possession to Government

Where the claim is directed against the Government, the claimant must establish that his open and hostile assertion of title effectively brought such knowledge to the competent authority having control, custody, and administrative responsibility over the property on behalf of the State. Mere or imputed personal knowledge of Ministers, Government Pleaders, or the Sub-Registrar, acquired in the course of official functions such as the registration of a document, does not satisfy this requirement; nor does registration—being a ministerial act—amount to notice to the Government in law.

S. 3 TP Act – Registration is not Notice to the Public

Registration does not amount to notice to the public at large. It is clear from Section 3, Explanation I of the Transfer of Property Act, 1882.

  • Registration operates as constructive notice only to persons who subsequently acquire
    • .(i) the property, or
    • (ii) or any interest in any part, share, or interest in that property.
  • It is not “notice to the Government”. The doctrine of constructive notice is statutorily confined; it cannot be expanded by any implication.

Sub Registrar cannot Refuse Registration on the ground, No Title

In K. Gopi v. The Sub-Registrar our Apex Court (Neutral Citation: 2025 INSC 462: Abhay S Oka and Ujjal Bhuyan, JJ.; 7. 4. 2025) held that the registering officer cannot refuse to register a document, on the ground that the vendor has not established his title and ownership.

SC declared TN Rules, ultra vires the 1908 Act

The Supreme Court declared Rule 55A of the Registration Rules under the Registration Act, 1908,  framed by the Government of Tamil Nadu, as ultra vires the 1908 Act. This rule provided that the Sub-Registrar waswas entitled to refuse the registration of the sale deed on the ground that the vendor has not established his title and ownership.

The court said as under:

  • “15. The registering officer is not concerned with the title held by the executant. He has no adjudicatory power to decide whether the executant has any title. Even if an executant executes a sale deed or a lease in respect of a land in respect of which he has no title, the registering officer cannot refuse to register the document if all the procedural compliances are made and the necessary stamp duty as well as registration charges/fee are paid. We may note here that under the scheme of the 1908 Act, it is not the function of the Sub-Registrar or Registering Authority to ascertain whether the vendor has title to the property which he is seeking to transfer.
  • Once the registering authority is satisfied that the parties to the document are present before him and the parties admit execution thereof before him, subject to making procedural compliances as narrated above, the document must be registered. The execution and registration of a document have the effect of transferring only those rights, if any, that the executant possesses. If the executant has no right, title, or interest in the property, the registered document cannot effect any transfer.
  • 16. Therefore, assuming that there is a power under Section 69 of the 1908 Act to frame the Rules, Rule 55A(i) is inconsistent with the provisions of the 1908 Act. Due to the inconsistency, Rule 55A(i) will have to be declared ultra vires the 1908 Act. The rulemaking power under Section 69 cannot be exercised to make a Rule that is inconsistent with the provisions of the 1908 Act.”

Earlier Decision of the Apex Court

Earlier, the Supreme Court, in Satya Pal Anand v. State of MP, AIR 2016 SC 4995; 2016-10 SCC 767, held as under:

  • “He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. In the case of Park View Enterprises (Park View Enterprises v. State of Tamil Nadu, AIR 1990 Mad 251) it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument.”

Note: No Rules had to be looked into in this case (as one came for consideration in K. Gopi v. The Sub-Registrar).

Registering officer is not permitted to inquire into validity of the Deed

The same view (in Satya Pal Anand v. State of MP) was taken in State of Gujarat v. Rajiv Maheshkumar Mehta (09 Aug 2016, Guj.), holding that the registering officer is not permitted to undertake an inquiry into the legality and validity of the title and document; and that the registering officer is not empowered to act like a judicial officer. The Gujarat High Court referred to the following decisions:

  • (1) Krishna Gopal Kataria v. State of Punjab, AIR 1986 P & H 328. That powers of Registrar are clearly defined and demarcated and any instruction by the State Government to the Registrar and in turn to the Sub-Registrar not to register sale deeds or lease deeds in respect of properties belonging to religious/charitable institutions in absence of any statutory provision was held to be illegal. It was further held that Act 1908 is a complete code of deeds.
  • (2) Bihar Deed Writers Association v. State of Bihar, AIR 1989 Pat 144, in which, it was held that it is not for registering authority to ascertain title to its own satisfaction and in the fact of that case absence of any declaration by the parties in respect of Bihar Land Reforms Act 1961 and refusal to register the sale deed was held bad in law.
  •  (3) E. Eshaque v. Sub-Registrar, Kozhikode, AIR 2002 Ker 128 whereby it was held that registering authorities is not required to satisfy title, possession or encumbrances in respect of property sought to be registered. In this case also reliance was placed by the High Court of Kerala on the decision in the case of Bihar Deed Writers Association v. State of Bihar.
  • (4) State of Rajasthan v. Basant Nahata, (2005) 12 SCC 77 In the above case Section 22A inserted by Registration Amendment Act 16 of 1976 whereby documents to be registered if found opposed to public policy and notifications issued in this regard was held to be unconstitutional and secondly notifications issued thereunder where quashed and set aside. In the above decision even power of attorney was also interpreted in light of Chapter X of Contract Act, 1872.
  • (5) Captain Dr. R. Bellie v. Sub-Registrar, Sulur, AIR 2007 Mad 331. It was the case when registration of document was denied on the ground that it was opposed to public policy and relying on decision in the case of State of Rajasthan v. Basant Nahata, AIR 2005 SC 3401 provision made vide Government Order No. 150 pertaining to commercial taxes was set aside and provisions of Section 22A inserted by registration (Tamil Nadu Amendment) Act, 1994) was held to be unconstitutional.
  • (6) Pandurangan v. Sub-Registrar, Reddiar-palayam Pondicherry, AIR 2007 Mad 159, in which it was held that withholding of registration of document is not permissible based on executive instructions in absence of any statutory rule and that registering authority has no power to make inquiry relating to title. In this case even amendment made to Rule 54 framed in exercise of powers under Section 69 of the Act 1908, by which, scope of power conferred upon registering authority under Sections 34 and 35 of the Act came to be enlarged and was held to be illegal by holding that statutory rules cannot override express provisions of the statute and execution instructions cannot override either of the two.
  • (7) Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, 2009 (3) GLH 533 whereby the Apex Court held that holder of power of attorney himself is executant of the document to be registered is entitled to present such document before registering officer for registration and in such a case namely where a deed is executed by a agent for principal and the same agent signs, appears and presents the deed or admits an execution before Registering Officer, it is not a case of presentation under Section 32(c) of the Act 1908. In other words, only in cases where the person signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33(1)(a) of the Act 1908.
  • (8) Shakuntala Devi v. State of Jharkhand, AIR 2010 Jha 56 keeping in mind Sections 34 and 35 of the Act 1908, whereby it is held that registering officer can only see whether document is duly stamped to valuation given and that he has no jurisdiction to withhold or refuse registration of sale deed on the ground that vendor has no title.

No provision empowers Sub Registrar to satisfy himself as to the title

In Eshaque v. Sub Registrar, 2002 (1) KLT 330, it is held that there is no provision which empowers the Sub Registrar to satisfy himself as to the title; and that the Sub Registrar is not justified in requiring the executant of the deed to produce a possession certificate from the competent authority to establish possession of property. It is followed in the following decisions:

  • Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959
  • Nilambur Rubber Company Ltd. v. State of Kerala, 2024-4 KLT 642 (Held- registration of a sale deed cannot be refused, on the premise that the executant has no ownership, but only possession over the property conveyed.)
  • Pankaj Kumar Harlalka v. State of Jharkhand, 2002-3 JCR 152; 2005-2 JLJR 118.

High Courts were unanimous on this issue

In Makhanbala Chakraborty v. Pranab Kanti Basu, 26 Sep 2014, the Tripura High Court observed that the High Courts seem to be unanimous on this issue that the Registrar/Sub-Registrar cannot refuse to register a conveyance entered into by a squatter, since the Registrar does not have the authority to question the title of the transferor. The following decisions were referred to:

  • Bihar Deed Writers Association v. State of Bihar: AIR 1989 Pat 144(DB) (para 3);
  • Hari Singh v. Sub-Registrar, : (1998) 120 PLR 787 (DB) (paras 8 to 11),
  • K. Eshaque v. Sub-Registrar, : AIR 2002 Ker 128 (paras 7 to 9);
  • Gopal v. District Collector, Bhandara, (2003) 3 Mah LJ 883 (para 11);
  • Yadla Ramesh Naidu v. Sub-Registrar, : (2009) 1 ALD 337 (paras 22 to 25);
  • Ashwini Ashok Khirsagar vs. State of Maharashtra, (2010) 3 AIR Bom R (NOC 318) 90 (paras 4 to 8);
  • Deep Apartment v. State of Maharashtra, : (2012) 6 Bom LR 3782; (paras 6 to 9);
  • Gurjeet Singh Madaan v. Sub-Registrar, CS (OS) 340/2013, decided on 26-09-2013 (Delhi High Court, paras 23 to 25).

End Notes.

Effect of Fraudulent Regn. of Deed on Govt. Property, and Mutation

If the deed is fraudulently registered with respect to the government property (shown as private property), and mutation entries were caused to be made, they will not ripen into adverse possession against the Government, for the following reasons:

  • 1. The ingredients of adverse possession will not be satisfied – such as: OPEN, actual, and NOTORIOUS (visible, not secret) exclusive possession, hostile to the true owner (Government). A sham/void/fraudulent transaction will not satisfy these ingredients. (See: Madhavrao Waman Saundal Gekar v. Raghunath Venkatesh Desh Pande, AIR 1923 PC 205; Lakshmi Dutt v. Gopal Dutt, AIR 1974 (All) 316; Radhabai and Ram Chandra Konher v. Anantray Bhagvant Despande, ILR (1885) 9 Bom 198).
  • 2. Fraudulent execution of deeds between persons having no title at all over Government land can use it as a title deed alone. That is, the claimant does not admit the title of the ‘true owner’.
  • 3. Mutation will not create or extinguish title.
  • 4. Courts must be cautious to apply adverse possession where public property is sought to be grabbed.
  • 5. Fraud vitiates everything. It cannot be used as the beginning of adverse possession. One cannot base adverse possession on a fraudulent foundation.
  • 6. Courts strictly scrutinise adverse possession in cases involving public property.

In Vishwa Vijai Bharti v. Fakhrul Hasan, AIR 1976 SC 1485, it is held as to the presumption of correctness on revenue-records as under:

  • “It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”
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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Shanti Devi v. Jagan Devi, 2025 INSC 1105; Accamma Sam Jacob v. The State of Karnataka, 2026 INSC 362)

Fraudulent or Void Transaction: Is ‘Declaration’ Required? The Supreme Court Says No

Saji Koduvath, Advocate, Kottayam.

A Seeming Conflict Between Two Decisions

  • 1. Hussain Ahmed Choudhury  v. Habibur Rahman, 2025 SCC OnLine SC 892 (J.B. Pardiwala, R. Mahadevan JJ.)
  • 2. Shanti Devi v. Jagan Devi, 2025 INSC 1105 (J.B. Pardiwala, R. Mahadevan JJ.)

In the earlier decision in Hussain Ahmed Choudhury  v. Habibur Rahman, 2025 SCC OnLine SC 892 (J.B. Pardiwala, R. Mahadevan JJ.), it was clearly opined, as regards an assailed instrument,as under:

  • “In a situation where the plaintiff was not a party to the instrument, a declaration must have been sought to the effect that the said instrument was not binding on the plaintiff.”

However, in the subsequent decision in Shanti Devi v. Jagan Devi, 2025 INSC 1105 (per Pardiwala and Mahadevan JJ.), the Supreme Court clarified its earlier position by holding that where the very character of a sale deed is assailed as fraudulent or bogus, the requirement of seeking a declaration stands implicitly satisfied. The Court said as under:

  • “In cases where the character of the sale deed is assailed as beingfraudulent, this requirement isimplicitly satisfied since the very averment that the sale deed was fraudulent or a sham and bogus transaction by itself indicates that the plaintiff did not intend to be bound by it. Therefore, this requirement too, could be said to have been satisfied by the plaintiff in the present case.”

As a result –

  • a void document need not be challenged by claiming a declaration (that the said instrument is not binding), as the said plea can be set up and proved even in collateral proceedings.

It is also made clear –

  • A plaintiff who was not a party to the instrument need not seek its cancellation; and
  • Relevant article in the Limitation Act, 1963 is Article 65 (12-year period) and not Article 59 (3-year period).

Read Also:

•    Void, Voidable & Illegal Actions and Sham Transactions
•   Fraudulent or Void Transaction: Is ‘Declaration’ Required?
•   Cancellation, Avoidance or Declaration of a Void or Voidable Deed
•    All Illegal Agreements are Void; but All Void Agreements are Not Illegal
•    Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Cancelling Deeds
•    Can the True Owner Seek Cancellation of a Deed, Executed by a Stranger to the Property
•    Did the Supreme Court Depart From its Earlier Position in Hussain Ahmed Choudhury v. Habibur Rahman?
•    If a Document is Per Se Illegal, or Void Ab Initio, it Need Not be Set Aside

Subsequent Decision (Shanti Devi v. Jagan Devi) Vividly Explained the Legal Position

In Shanti Devi v. Jagan Devi,  2025 INSC 1105, on 12 September 2025, made it clear – when a deed is fraudulent or a sham and bogus one, ‘it is not necessary for the plaintiff to claim any separate declaration that a document is void‘. It is held as under:

  • “25. The crux of the issue seems to be whether it is Article 65 or Article 59 of the Schedule to the Limitation Act, 1963, which would apply to the present facts in hand. ….”
  • “28. In State of Maharashtra v. Pravin Jethalal Kamdar, reported in 2000 SCC OnLine SC 522, this Court held that as far as void and non-est documents are concerned, it would be enough for the plaintiff to file a simpliciter suit for possession to which Article 65 of the Limitation Act, 1963 would apply. …… Subsequently, the decision of this Court in Bhim Singhji v. Union of India reported in (1981) 1 SCC 186 … opined as follows:
    • .i. First, the contention of the State that it is Article 58 of the Limitation Act, 1963 that would apply, was rejected. It was held that the suit is primarily one for possession of property based upon title. It was observed that owing to the decision in Bhim Singhji (supra), the order dated 26.05.1976 along with the sale deed dated 23.08.1976 became void ab intio and without jurisdiction. Therefore, it was not necessary for the plaintiff to claim any separate declaration that they are void. The plea about their invalidity could be raised in the course of any proceedings. Therefore, it is Article 65, which deals with a suit for possession based on title, that would apply from the date on the which the possession of the defendant State became adverse to the plaintiff.
    • ii. Secondly, though the plaintiff sought a declaration that the order dated 26.05.1976 and the sale deed dated 23.08.1976 were void, yet it was held that the same would be of no consequence insofar as the question of limitation is concerned.
  • The fact would still remain that the possession of the property was taken by the defendants via void documents. Therefore, such documents could be ignored and a suit for possession simpliciter, for which the period of limitation prescribed under Article 65, i.e., 12 years, could be filed. In the course of such proceedings, it could be contended by the plaintiff that the documents are a nullity.
  • …”
  • “29. This Court in Prem Singh v. Birbal reported in (2006) 5 SCC 353, discussed the position of law as to when Article 59 of the Limitation Act, 1963 would apply and opined as follows:
    • .i. First, that Article 59 of the Limitation Act, 1963 would only encompass within its fold fraudulent transactions which are ‘voidable’ transactions and not those that are ‘void’. In other words, Article 59 would apply only where an instrument is prima facie valid and not to those instruments which are presumptively invalid.
    • ii. Secondly, that when the document in question is void ab initio/or void, a decree for setting aside the same would not be necessary since such a transaction would be non-est in the eyes of law, owing to it being a nullity.
    • iii. Thirdly, a fine distinction was drawn between fraudulent misrepresentation as regards the ‘character of the document’ and fraudulent misrepresentation as regards the ‘contents of a document’. It is only in the former situation that the instrument would be void and, in the latter, it would remain voidable. To put it simply, Article 59 would not govern the period of limitation in respect of a void transaction.
    • iv. Lastly, that if a deed was executed by the plaintiff when he was a minor and it was thereby void, he had two options to file a suit to get the property conveyed thereunder, i.e., he could either file the suit within 12 years of the deed or within 3 years of attaining majority.
    • ….”
  • “30. In the decision of this Court in Hussain Ahmed Choudhury v. Habibur Rahman reported in 2025 SCC OnLine SC 892, where one of us, J.B. Pardiwala J., was a member of the Bench, it was reiterated that a person who is not a party to an instrument would not be obliged in law to seek its cancellation. The reason being that such an instrument would neither be likely to affect his title nor be binding on him. However, such a plaintiff must at least seek a declaration that the said instrument is not binding on him or that is invalid insofar as he is concerned. ………
  • 31. As per the dictum in Prem Singh (supra), this Court, in order to ascertain whether Article 65 of the Limitation Act, 1963 would apply to the present factual scenario, has to first determine whether the fraud was alleged as regards the contents of the sale deed dated 14.06.1973 or the character of such sale deed. Both the First Appellate Court as well as the High Court have arrived at the finding that the plaintiff had never executed the said sale deed in the first place as it was proved that it was not her thumb impression that was affixed therein. Therefore, this finding goes to the character of the sale deed and thereby, renders it void/void ab initio. Hence, as per this decision, there remained no reason for the plaintiff to seek for its cancellation. The original sale deed also was not produced before the Trial Court by the defendants in order to rebut the doubt cast upon the veracity of the said sale deed. Consequently, Article 59 of the Limitation Act, 1963 would find no application to the case in hand.
  • 32. In Hussain Ahmed Choudhury (supra), it was clearly opined that a plaintiff who is not a party to the instrument in question need not seek its cancellation. We are not oblivious to the fact that in a situation where the plaintiff was not a party to the instrument, the said decision laid down a requirement that a declaration must be sought to the effect that the said instrument was not binding on the plaintiff. However, the said decision clarified that whether the plaintiff has sought such a declaration or not could be culled out from a holistic reading of the plaint along with the relief(s) sought. In cases where the character of the sale deed is assailed as being fraudulent, this requirement is implicitly satisfied since the very averment that the sale deed was fraudulent or a sham and bogus transaction by itself indicates that the plaintiff did not intend to be bound by it. Therefore, this requirement too, could be said to have been satisfied by the plaintiff in the present case.”
  • …..
  • “34. We may look at the matter from one another angle. Apart from the aspect of fraud, the decision of this Court in Kewal Krishnan v. Rajesh Kumar and Others reported in (2022) 18 SCC 489, while looking into whether the defendants had paid any sale consideration to the plaintiff while purchasing the plaintiff’s share in the property, held as follows:
    • .i. First, that the sale of an immovable property would have to be for a price and such a payment of price is essential, even if it is payable in the future. If a sale deed is executed without the payment of price, it is not a sale at all in the eyes of law, specifically under Section 54 of the Transfer of Property Act,  1882. Such a sale without consideration would be void and would not affect the transfer of the immovable property.
    • ii. Secondly, that, in the said case, the defendants could not rebut the allegation of the plaintiff that no sale consideration was paid as no evidence was adduced to indicate – (a) the actual payment of the price mentioned in the sale deeds and, (b) that the defendants had any earning capacity at the time of the transaction such that the sale consideration could have been paid. As such the sale deed being void for want of valid consideration, could not be said to have affected the one-half share of the plaintiff in the suit properties nor have conferred any right of title on the defendants. In fact, it was held that the sale deeds were a sham and must be ignored.
    • iii. Lastly, it was reiterated that a document that is void need not be challenged by seeking a declaration as the said pleas can be set up and proved even in collateral proceedings.”
  • “The relevant observations are thus:
    • “……
    • Thus, the sale deeds of 10-4-1981 will not confer any right, title and interest on Sudarshan Kumar’s wife and children, as the sale deeds will have to be ignored, being void. It was not necessary for the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.
    • …..”

End Notes I

A voidable transaction can be repudiated by an unequivocal conduct

  • Hari Ram v. State of Rajasthan (2026 INSC 350: Sanjai Kumar, Vinod Chandran, JJ.)
  • K.S. Shivappa v. K. Neelamma, 2025 SCC OnLine SC 2149.

In Hari Ram v. State of Rajasthan (2026 INSC 350) it was held that the plaintiff need not have sought a declaration of nullity, for the following reasons:

  • The plaint only raised an apprehension of encroachment on the strength of a fabricated sale deed.
  • The defence was set up with respect to the sale deed. But, it was not produced.
  • It was not even a registered document available in the public domain.
  • The plaintiff claimed ‘khatedari’ rights based on the mutation entries in his father’s favour and the decree obtained thereat would be an effective repudiation of the document. (Relied on: K.S. Shivappa v. K. Neelamma, 2025 SCC OnLine SC 2149.)

In K.S. Shivappa v. K. Neelamma, 2025 SCC OnLine SC 2149, it was found that the repudiation of a voidable transaction need not necessarily be in a suit instituted to set it aside and could as well be, by way of an unequivocal conduct.

End Notes II

A suit for (i) declaration of Title and (ii) Recovery – Art. 65 Governs; Not, Art. 58.

Shanti Devi (Since Deceased) v. Jagan Devi,  2025 INSC 1105, on 12 September, 2025,  (J.B. Pardiwala, R. Mahadevan JJ.) 1. Crux of the issue: whether Article 65 or Article 59 
2. State of Maharashtra v. Pravin Jethalal Kamdar, AIR 2000 SC 1099; 2000-3 SCC 460 – void and non-est documents – a simpliciter suit for possession to which Article 65 would apply
3. Bhim Singhji v. Union of India, (1981) 1 SCC 186 – Claim of title void ab initio and without jurisdiction – suit for possession based upon title – not necessary to claim any separate declaration that they are void. -invalidity could be raised in any proceedings. – Article 65 deals with.
N. Thajudeen v. TN Khadi and Village Industries Board, AIR 2024 SC 5641declaration of title and recovery of possession – relief of declaration would only be an ancillary one
K. Vattakandiyil Madhavan v. Janaki, 2024(2) KLT 789(SC)If the document ex facie reveals that the conveyer had no title, no specific declaration is needed. 
C. Natrajan v. Ashim Bai, AIR 2008 SC 363; (2007) 14 SCC 183Suit for possession, as a consequence of the declaration, Article 58 will have no application
Prem Singh v. Birbal  (2006) 5 SCC 3531. Article 59 fraudulent transactions – ‘voidable’ not ‘void’. 2. Article 59 applies where an instrument is prima facie valid and not presumptively invalid. 3. Article 65 applies when the document is void ab initio or void 4. A decree for setting aside the document void ab initio or void would not be necessary since non-est. 5. Fraudulent misrepresentation as regards the ‘character of the document’ would be void, not ‘contents’.  Article 59 would not govern a void transaction.
State of Maharashtra v. Pravin Jethalal Kamdar, AIR 2000 SC 1099; 2000-3 SCC 460The sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of the plaintiff having sought such a remedy to void documents, Article 65 of the Limitation Act will apply, and the limitation to file the suit will be 12 years.
Indira v. Arumugam, AIR 1999 SC 1549Once the title is established,  the defendant has to prove adverse possession (Followed in: Mallavva v. Kalsammanavara Kalamma, 20 Dec 2024, 2024 INSC 1021)
C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808Declaration with a further relief – Article governing such a suit will be that for such further relief.
Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478; 2019-3 Ker LJ 269 Declaration with possession – Article 65 would come into play, giving a 12-year period, not Article 58.
S. Krishnamma v. T.S. Viswajith:  2009 (4) KerLT 840When a declaration regarding the void character of the document is sought, the consequential relief sought for is to be treated as the main relief governing the period of limitation. A declaration is unnecessary in such a case, and even if made, it needs only be treated as ancillary to the main relief of partition.
Chelathukandy Meenakshi Amma v. Parappurath Unni Nair, 2017-2 KLJ 247; 2017-3 KLT(SN) 47When a document is per se illegal, in the sense that it is void ab initio, a party need not seek cancellation of such a document.
K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98 (Antony Dominic & Hariprasad, JJ.)1. suit for recovery based on title,  limitation arise only when adverse possession. 2.  Recovery of possession on title – declaration is only subservient to the main prayer, possession. 3. Article 58 will apply only to a suit for declaration simpliciter.

End Notes III

Declaration of Title & Recovery: Article 65 of the Limitation Act Governs; Not, 58

58To obtain any other declarationThree years.When the right to sue first accrues.
59To cancel or set aside an instrument or decree or for the rescission of a contract.Three years.When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him.
65  For possession of immovable property or any interest therein based on title.Twelve years.When the possession of the defendant becomes adverse to the plaintiff.

End Notes IV

Earlier Supreme Court Decisions

1. Kizhakkevattakandiyil Madhavan v. Janaki, 2024-4 SCR 383; 2024(2) KLT 789(SC)

  • “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.”

2. N. Thajudeen v. Tamil Nadu Khadi and Village Industries Board, AIR 2024 SC 5641

  • “In the case at hand, the suit is not simply for the declaration of title rather it is for a further relief for recovery of possession. It is to be noted that when in a suit for declaration of title, a further relief is claimed in addition to mere declaration, the relief of declaration would only be an ancillary one and for the purposes of limitation, it would be governed by the relief that has been additionally claimed. The further relief claimed in the suit is for recovery of possession based upon title and as such its limitation would be 12 years in terms of Article 65 of the Schedule to the Limitation Act.

3. C. Natrajan v. Ashim Bai, AIR 2008 SC 363; (2007) 14 SCC 183

  • “If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. If the suit has been filed for possession, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.”

4. Madhegowda v. Ankegowda, AIR 2002 SC 215; (2002) 1 SCC 178.

  • “Therefore, there is little scope for doubt that the transfer of the minor s interest by a de facto guardian/manager having been made in violation of the express bar provided under the Section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of suchinvalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding.”

5. State of Maharashtra v. Pravin Jethalal Kamdar, AIR 2000 SC 1099; 2000-3 SCC 460, held as under:

  • “6. As already noticed, in Bhim Singhji’s case (Bhim Singhji v. Union of India & Ors., (1981) 1 SCC 166), Section 27(1) insofar as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, has been held to be invalid. Thus, it has not been and cannot be disputed that the order dated 26th May, 1976, was without jurisdiction and nullity. Consequently, sale deed executed pursuant to the said order would also be a nullity. It was not necessary to seek a declaration about the invalidity of the said order and the sale deed. The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj & Ors. v. Moti S/o Mussadi2 this Court said that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act.”

6. C. Mohammad Yunus v. Syed Unnissa and Others, AIR 1961 SC 808

  • In a suit for declaration with a further relief, the limitation would be governed by the Article governing the suit for such further relief.

The Kerala High Court, in Chelathukandy Meenakshi Amma v. Parappurath Unni Nair, 2017-2 KLJ 247; 2017-3 KLT(SN) 47, held as under:

  • “When a document is per se illegal, in the sense that it is void ab initio, a party need not seek for the cancellation of such a document. Suppose a person executes a sale deed in respect of a property on which he has no right or title and especially when title belongs to other person, the vendee will not get anything. At the same time, it cannot be said that the true title holder of the property should go for the cancellation of such a document. In such case, the document is void ab initio and, therefore, such a document is liable to be ignored, since it will not cause any cloud on title of the true title holder.”

In this decision (Chelathukandy Meenakshi Amma v. Parappurath Unni Nair, 2017-2 KLJ 247; 2017-3 KLT(SN) 47) it is pointed out as under:

  • “39. In Sarojini vs. Ratnamma, 2015 (1) KLT 602, a learned Single Judge of this Court has held that if a document is void, it is not at all necessary for the aggrieved person to get a declaration that it is void. But, if it is only voidable, it has to be set aside.
  • 40. The very same dictum was laid down by another learned Single Judge of this Court in Gomathy vs. Kesavan Neelakantan, 2013 (3) KLT SN 43 (Case No. 47).”

In Gopakumar v. Kamalakshy Purushothaman, 2019-3 KHC 478; 2019-3 Ker LJ 269 it is held as under:

  • “Article 58 of the Limitation Act would be applicable in a suit for declaration, but it has no application when the relief sought in the plaint is not for a mere declaration,but coupled with other reliefs like injunction, partition, possession etc. and Article 65 of the Limitation Act would come into play giving 12 year period. In the instant case, the relevant Article which can be applied is not Article 58, but Article 65 as the suit was filed not merely for a relief of declaration, but for declaration of title and for recovery of possession of immovable property.”

In S. Krishnamma v. T.S. Viswajith:  2009 (4) KerLT 840, it is held that Article 58 is not applicable for declaration that is sought only as an ancillary relief. It is held as under:

  • “When a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit. The consequential relief sought for is to be treated as main relief governing the period of limitation for the suit. (See Mrs. Indira Bhalchandran Gokhale v. Union of India & Another-AIR 1990 Bombay 98). Therefore declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Maurice W. Innis v. Lily Kazrooni – Executing Court Executes Decree as it Stands, Without any Modification. It cannot Go Beyond or Vary its Term

Saji Koduvath, Advocate, Kottayam.

Preface

The executing court executes a decree:

  • as it stands,
  • without any modification,
  • without going beyond its term, and
  • without varying its terms.

S. 47  CPC Deals with – Questions to be Determined by the Executing Court

Section 47 of Code of Civil Procedure provides – ‘all questions arising between the parties‘ and relating to the execution are to be determined by the Executing Court.

Section 47, CPC, reads as under :

  • “47. Questions to be determined by the Court executing decree: (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
  • (2) * * * * (omitted)
  • (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.”

The Supreme Court of India, in Maurice W. Innis v. Lily Kazrooni (Pankaj Mithal, Prasanna B. Varale, JJ.),2026 INSC 340, affirmed the law on the point. The Apex Court observed as under:

  • “A plain reading of the aforesaid provision makes it clear that the Executing Court is empowered to decide questions relating to execution, discharge or satisfaction of the decree and has no jurisdiction to go beyond the decree sought to be executed. In other words, it has to execute the decree as it is without changing the same. It is settled in law that the jurisdiction of Executing Court is limited to give effect to the decree as passed and not to assume the role of a trial court so as to substitute its own view in place of that expressed under the decree.”

It is held in this decision –

  • “29. …. It is only where the dispute as to the identity of the land which has to be given as part of the obligation to the other side arises, the court can decide the same.”
  • “30. In the instant case, there is no dispute of identity of the land falling into the shares of both the parties. The compromise decree clearly describes the portions of land falling into the shares of the parties. Therefore, the Executing Court has to ensure that both the parties fulfil their obligations and exchange the land as per the decree and to see that the sale deed is executed as directed. Merely for the reasons that exchange of some portions of the land may not be practicable for the reason that constructions on it are not as per the sanctioned map or that part of it has been sold off, are all immaterial.” 

The following are the facts in Maurice W. Innis v. Lily Kazrooni:

  • The plaintiff-appellant sold 57R of land to the defendant-respondent.
  • The plaintiff retained the balance.
  • The defendant sold back 6R to the plaintiff.  
  • The defendant entered into an agreement to sell the 51R to the plaintiff.
  • A registered agreement was made.
  • The plaintiff- appellant filed the suit against the defendant, praying for specific performance of the agreement.
  • The parties entered into a compromise.
  • The compromise provided, inter alia, that each portion would be ascertained by the surveyor, and the value of a bungalow and the plinth-level construction existing on the said land would be determined by the Government valuer.
  • Accordingly, the suit was decreed after completing the formalities of the survey and valuation.
  • Finally, a decree was drawn incorporating the respective areas.
  • The said decree was put into execution by both parties separately.
  • The Executing Court passed an order modifying the area allotted in the decree and allotted them some different portions.
  • It was for the reasons that exchange of some portions of the land may not be practicable constructions on it are not as per the sanctioned map or that part of it has been sold off.
  • The defendant filed a review petition.
  • The review petition was allowed but the original compromise decree w further modified.
  • The plaintiff filed a writ petition before the High Court.
  • The writ petition was dismissed.
  • The plaintiff-appellant has thus preferred the appeal before the Supreme Court.

The Supreme Court (Maurice W. Innis v. Lily Kazrooni) found as under:

  • The Executing Court has no jurisdiction to vary the terms of the decree.
  • It is only a dispute as to the identity of the land – the Executing Court can decide the same.
  • There is no dispute of identity of the land.
  • Merely the reasons that –
    • exchange of some portions of the land may not be practicable for the reason that constructions on it are not as per the sanctioned map or
    • that part of it has been sold off
  • are all immaterial.
  • The Executing Court has gone beyond its jurisdiction.

The Court allowed the appeal, and the Execution Court is directed to execute the decree in its terms and tenor.

The decisions referred to in Maurice W. Innis v. Lily Kazrooni

The Apex Court referred the following decisions to hold as under:

  • “The Executing Court has to strictly conform to the decree under execution and if the decree provides for reciprocal obligations, it must ensure compliance of those conditions by both the parties in pith and substance, unless the decree is a nullity which is not the case herein.”

1. Jai Narain Ram Lundia v. Kedar Nath Khetan, (1956) 1 SCC 75 

It was held: (i) the Executing Court has the power to determine that one party gives the very thing to the other party which the decree directs and in case any dispute in this regard arises it can be decided by the Executing Court, otherwise (ii) the Executing Court must execute the decree as it stands and cannot go beyond the decree and vary its term.

2.  Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (1970) 1 SCC 670

It has been held as under :

  • “6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.”

3. Sunder Dass v. Ram Prakash (1977) 2 SCC 662 .

It is held in this decision as under:

  • “3. Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be decree at all. Vide Kiran Singh v. Chaman Paswan [AIR 1954 SC 340 and Seth Hiralal Patni v. Sri Kali Nath [AIR 1962 SC 199]. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent.”

See also:

  • Abdul Rejak Laskar v. Mafizur Rahman, 2024 INSC 1023;
  • Joginder Singh v. Virinderjit Singh Gill, 2024 INSC 814;
  • Asma Lateef v. Shabbir Ahmad, (2024) 4 SCC 696;
  • Pradeep Mehra v. Harijivan J. Jethwa, 2023-6 BLJ(SC) 242; 2023-4 CurCC(SC) 214;
  • Sanwarlal Agrawal v. Ashok Kumar Kothari, 2023-7 SCC 307;
  • TN Housing Board v. Abdul Salam Sarkar, 2021 2 CurCC(SC) 84; 2021-2 Scale 63;
  • Rajasthan Udyog v. Hindustan Engg. & Industries Ltd., (2020) 6 SCC 660;
  • Sneh Lata Goel v. Pushplata, 2019-3 SCC 594;
  • Deepa Bhargava and Another v. Mahesh Bhargava, (2009) 2 SCC 294;
  • Gurdev Singh vs. Narain Singh (2007) 14 SCC 173;
  • Rafique Bibi v. Syed Waliuddin, (2004) 1 SCC 287;
  • Balvant N. Viswamitra v. Yadav Sadashiv Mule, (2004) 8 SCC 706;
  • J&K Bank Ltd. v. Jagdish C. Gupta, (2004) 10 SCC 568;
  • Rajasthan Financial Corporation v. Man Industrial Corporation Ltd., (2003) 7 SCC 522;
  • Sunder v. Union of India, (2001) 7 SCC 211;
  • SBI v. Indexport Registered, (1992) 3 SCC 159;
  • Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193;
  • Muthangi Ayyana v. Muthangi Jaggarao, (1977) 1 SCC 241 ;
  • Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, (1970) 1 SCC 670
  • Shivashankar Prasad Shah v. Baikunth Nath Singh, (1969) 1 SCC 718
  • Topanmal Chhotamal v. Kundomal Gangaram, AIR 1960 SC 388

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Read in this Cluster (Click on the Topic)

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Channappa v. Parvatewwa Critically Analysed: Suit Dismissed for Order II Rule 2 Bar and Constructive Res Judicata – For No ‘Consequential Declaration’ on Title, in the Earlier Suit 

Saji Koduvath, Advocate, Kottayam.

Points Decided in Channappa v.  Parvatewwa, 2026 INSC 343

1. Adverse IA Orders can be challenged in Appeal from Decree: Once an Order is passed in an Interlocutory Application in a suit, it stands as res judicata at its subsequent stages, including the appeal, revision, etc.

  • However, adverse IA Orders (including Order II Rule 2, CPC petition) can be challenged in an appeal from the (final) decree. Section 105 Code of Civil Procedure provides – when an appeal is filed against the decree, any error, defect or irregularity in an Order can be raised as a ground in the memorandum of appeal.

2. Order II Rule 2, CPC: A subsequent suit claiming a relief that ought to have been claimed in an earlier suit, on the same cause of action, is barred under Order II Rule 2 of the CPC.

3. Constructive Res Judicata: The second suit may also be barred by constructive res judicata.

  • Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Principle (Ratio Decidendi) Laid Down in Channappa v. Parvatewwa

If two suits are filed by the same plaintiff against the same defendant, the relief of declaration of title, and consequential relief of possession cannot be claimed in the subsequent suit in the following circumstances:

  • in the earlier suit, the plaintiff pleaded that the defendant was asserting title over the suit property;
  • in the earlier suit, the relief of declaration of title with consequential possession was available; and
  • in the earlier suit, these reliefs were not claimed.

Facts of the First  Suit

  • Parvatewwa adopted Channappa in 1961.
  • The defendant told the plaintiff that he is the absolute owner of the properties.
  • In 2002, Parvatewwa filed a suit for a declaration that the 1961 adoption deed was null and void, and for an injunction.
  • [No consequential declaration of title on property sought for.]
  • The suit was dismissed.
  • Parvatewwa filed appeal in 2006.
  • The First Appellate Court dismissed the appeal.
  • It confirmed the judgment on the ground of limitation, though the finding on the validity of the adoption deed was reversed.
  • The Regular Second Appeal of Parvatewwa was allowed and the cross-objections were dismissed.

Facts of the Second Suit

  • During the pendency of the appeal Parvatewwa instituted a second suit in 2007.
  • In that suit she alleged that Channappa had illegally dispossessed her; and sought declaration of her ownership and recovery.
  • The suit was dismissed by the Trial Court holding that it was barred by limitation and hit by the principles of res judicata, constructive res judicata and Order II Rule 2, CPC.
  • The First Appellate Court held that the suit was not barred by limitation.
  • However, it confirmed the dismissal of the suit on the grounds of res judicata, constructive res judicata and under Order II Rule 2 of CPC.
  • The High Court allowed the Regular Second Appeal. The Suit was decreed in favour of the plaintiff.
Read Also:
•    Res Judicata and Constructive Res Judicata
•   Res Judicata and Judicial Precedent
•    What is Binding Judicial Precedent – In a Nutshell
•    No Res Judicata on Finding on Title in an Injunction Suit
•    Res Judicata: ‘Same issue’ must have been ‘Adjudicated’
•    Res Judicata and Appeal: No Res Judicata on Adverse Findings
•    Order II, Rule 2 CPC – Not to Vex Defendants Twice
•    A Landmark Decision on Order II rule 2, CPC – Cuddalore Powergen Corpn .
•    Termination of Tenancy (& Grant) by Forfeiture (for Claiming Title)
•    SUIT on TITLE: Landlord can Recover Property on GENERAL TITLE
•   Recovery of Possession Based on Title and on Earlier Possession
•   Recovery of Possession (Based on Title) and Eviction (of Tenants)
•    Applicability of Res Judicata on IA Orders (at Different Stages)

The Issues Considered

The issues considered in this case were the following –

  • 1. Whether the principles of res judicata apply where an interlocutory application (raising a plea of bar under Order II Rule 2 CPC) has been dismissed?
  • 2. Whether the second suit is barred under the provisions of Order II Rule 2 CPC?
  • 3. Whether the second suit is barred by the principles of Constructive res judicata?

SC Findings – on IA Filed under Order II Rule 2 CPC

An Interlocutory Application was filed by the defendant under Order II Rule 2, CPC. He prayed that the suit was liable to be dismissed for (i) the causes of action in both suits were the same, and (ii) the plaintiff omitted, in the first suit, to sue for the relief of declaration of title (sought for in the second suit).

The maintainability petition under Order II Rule 2, CPC, was dismissed by the trial court. It held that the causes of action in both suits were different. Revision against the same (before the High Court) was also dismissed.  After the trial, the trial court dismissed the second suit. The First Appellate Court confirmed the dismissal. But, the High Court allowed the Second Appeal in favour of the plaintiff and decreed the suit.

 Before the Supreme Court, the defendant contended that the second suit was barred under Order II Rule 2 CPC. The plaintiff argued that the issue had attained finality in view of the revisional order passed on the Order II Rule 2 application, which had been decided in his favour. This argument was not accepted by the Supreme Court. The Apex Court pointed out the following:

  • The Order in I.A. filed under Order II Rule 2, CPC, is not independently appealable. (Whether an appeal would lie or not from an Order on an IA is determined under  Section 104 read with Order 43, CPC.)
  • Section 105 CPC provides that when an appeal is filed against the decree, any error, defect or irregularity in an Order (though no appeal lies from an Order) can be raised as a ground in the memorandum of appeal.

Section 105 reads as under:

  • ‘105. Other orders – (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
  • (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.’

Defendants Can Urge in Appeal – The Suit is Barred Under O II r 2 CPC ; No Res judicata

In Arjun Singh v. Mohindra Kumar AIR 1964 SC 993, it is held that this proposition is subject to Sec. 105.

After quoting Arjun Singh v. Mohindra Kumar (supra), it is held in Channappa v.  Parvatewwa, 2026 INSC 343, it is observed – notwithstanding the earlier rejection of the application raising the plea on Order II Rule 2 CPC, it is open to the defendants to urge before the Appellate Court that the suit was barred under Order II Rule 2 CPC. Thereafter, it is held as under:

  • “Therefore, the contention that the dismissal of the application would operate as a bar to re-agitate the issue is misconceived.”

It was explained by Das Gupta, J. in Satyadhan Ghosal v. Smt Deorajin Debi, (1960) 3 SCR 590, as under:

  • ‘Does this, however, mean that because an earlier stage of the litigation a court had decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again? …
    • It is clear therefore that an interlocutory order
      • which had not been appealed from
      • either because no appeal lay or
      • even though an appeal lay an appeal was not taken
    • could be challenged in an appeal from the final decree or order.’ (Quoted in: Arjun Singh v. Mohindra Kumar AIR 1964 SC 993)

SC Findings – on Order II Rule 2

The doctrine underlying Order II Rule 2, CPC, is founded upon the salutary principle that a defendant ought not to be vexed twice for the same cause of action. The plaintiff must also claim all reliefs arising from a single cause of action in one proceeding. Where a plaintiff omits to claim a relief, he is precluded from instituting a subsequent suit in respect of such omitted relief.

The Constitution Bench of the Apex Court in Gurbux Singh v. Bhooralal AIR 1964 SC 1810, held as follows:

  • “6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out; (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.”

Pleadings in the first suit

It was stated in the plaint –

  • “The defendant told the plaintiff that he is the absolute owner of all the properties of the plaintiff mentioned above ….The plaintiff also came to know that the defendant has created document to show that he is the adopted son and the said document of adoption is registered in the office of Sub-Registrar, Bijapur on 23.3.1961 itself.”

The Court pointed out – Despite being fully aware that Channappa (defendant) had denied her ownership and had asserted rights based on the family arrangement deed of 1998, Parvatewwa chose to institute Suit–I, ‘without seeking the necessary and consequential relief of declaration of title’.

The Apex Court held –

  • “Once Channappa had clearly contested Parvatewwa’s ownership in the pleadings, it became incumbent upon Parvatewwa to seek the comprehensive relief of declaration of title along with the consequential relief of injunction”.

The court relied on Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Limited, 2025 SCC OnLine SC 82, which clarified that the rule under Order II Rule 2, CPC is founded on the principle that a person should not be vexed twice for the same cause of action and that the object of this rule is to prevent harassment of the defendant through successive litigation.

The Apex Court finally pointed out –

  • “The omission to seek such relief in Suit–I is significant and cannot be cured through a subsequent suit”.
  • “27. In the present case, Parvatewwa (plaintiff) herself had pleaded in the earlier proceedings that Channappa (defendant) was asserting rights over the suit properties on the basis of the adoption. The dispute as to the parties’ respective rights over the property was, therefore, already in existence at the time of institution of Suit–I. In such circumstances, the relief of declaration of title and the consequential relief relating to possession could and ought to have been claimed in the earlier proceedings.”
  • “The subsequent institution of Suit–II seeking declaration of ownership and recovery of possession in respect of the same property and between the same parties is, therefore, clearly hit by the provisions of Order II Rule 2, CPC.”

SC Findings – on Constructive res judicata

The principle of constructive res judicata is embodied in Explanation IV to Section 11. A matter which might and ought to have been made a ground of attack in the former proceedings shall be deemed to have been directly and substantially in issue in such proceedings. The Apex Court held as under:

  • “Parvatewwa having omitted to seek appropriate relief in Suit–I despite being aware of Channappa’s claim, cannot be permitted to agitate the same issue by way of a subsequent suit”.

The Court quoted from the following three decisions:

(i)  Forward Construction Co. v. Prabhat Mandal,(1986) 1 SCC 100: It observed as under:

  • “20. So far as the first reason is concerned, the High Court in our opinion was not right in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the present petition was conspicuous by its absence in the earlier petition.
  • Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.”

(ii) Alka Gupta v. Narender Kumar Gupta, 2010 SCC OnLine SC 1085: It observed as under:

  • “25. The principle underlying Explanation IV to Section 11 becomes clear from Greenhalgh v. Mallard [(1947) 2 All ER 255 (CA)] thus:
  •  “… it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.”

(iii)  Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra, (1990) 2 SCC 715: It observed as under:

  • “35. … an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence.”

SC Decisions – O II r 2: “Cause of Action” Chosen, or ‘Forms the Foundation’

It is important to note:

Order II Rule 2 bars – any relief omitted. Order II Rule 2 reads –

  • “Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action…”

Pointing out that the term “cause of action” is not defined in the CPC, it has been explained by the Apex Court, in Kandimalla Raghavaiah v. National Insurance Co., 2009-7 SCC 768: AIR 2010 SC Supp 880, as under:

  • “13. The term “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908, but is of wide import. It has different meanings in different contexts, that is, when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”, which, if proved or admitted, entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit. (See: Sidramappa Vs. Rajashetty, 1970-1 SCC 186). In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out”.

In Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, it was pointed out – what would constitute the cause of action in a suit must always depend on the particular facts of each case, and the true difficulty in each instance arises only upon the application of this rule. It is held as under:

  • “As pointed out in Moonshee Bazloor Ruheem v. Shumsoonnissa Begum (11 M.I.A. 551 at p. 605). “The correct test in all cases of this kind is, whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit.” (Quoted in: Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., Neutral Citation: 2025 INSC 73; S. Valliammai v. S. Ramanathan, B.V. Nagarathna, Ujjal Bhuyan, JJ., 2026 INSC 372)

Referring to various decisions, it is observed in Cuddalore Powergen Corporation Ltd. v. Chemplast Cuddalore Vinyls Ltd. J.B. Pardiwala and Justice R. Mahadevan, JJ., 2025 INSC 73, to the following effect:

  • the omission in the first suit must have been “deliberate“
  • the relief in the second suit must have been “available” at the time of the first suit.
  • cause of action in both suits must have been “identical” in substance and not merely technically.
  • “evidence required” to support the claims must have been the same.

The Apex Court held in Cuddalore Powergen Corporation as under:

  • “These observations show that in considering whether the cause of action in the subsequent suit is the same or not as the cause of action in the previous suit, the test to be applied is, are the causes of action in the two suits in substance-not technically-identical?
  • Applying this test the learned Judges came to the conclusion that the causes of action in the two suits in Brunsden v. Humphrey[(14 Q.B.D. 141). were distinct. Observations to the same effect appear in certain decisions of this Board. In Soorjomonee Dayee v. Suddanund [12 Beng. [(1873) 12 Beng L.R. 304, 315], their Lordships stated as follows:-
  • “Their Lordships are of opinion that the term “cause of action” is to be construed with reference rather to the substance than to the form of action.”
  • In Krishna Behari Roy v. Brojeswari Chowdranne [(1875) LR 2.I.A. 283, 285.], Sir Montague Smith in delivering the judgment of the Board observed:- “their Lordships are of opinion that the expression “cause of action” cannot be taken in its literal and most restricted sense. But however that may be.”

A Subsequent Decision: S. Valliammai v. S. Ramanathan (16 April 2026)

In S. Valliammai v. S. Ramanathan (16 April 2026), B.V. Nagarathna, Ujjal Bhuyan, JJ. (2026 INSC 372), it is held as under:

  • “5.9 The tests for determining whether Order II Rule 2 of the Code would apply in a particular case is, whether, the relief sought in the second suit or the subsequent suit is, in fact, founded upon a cause of action distinct from that which was the foundation for the former suit. If the answer to this question is in the affirmative, then the bar under Order II Rule 2 of the Code would not apply. Therefore, if there are different causes of action arising even out of the same transaction, the plaintiff is not obliged to bring a suit with regard to all of them. Similarly, when the cause of action on the basis of which the earlier suit was brought, does not form the foundation for the subsequent suit and in the earlier suit, the relief sought in the subsequent suit could not have been claimed, then, the subsequent suit is not barred. Thus, the applicability of the bar under Order II Rule 2 of the Code revolves on the meaning to be given to the expression ‘cause of action’.”

In S. Valliammai v. S. Ramanathan, 2026 INSC 372, the earlier decision in State Bank of India v. Gracure Pharmaceuticals Ltd., (2014) 3 SCC 595-602 was also referred to. It is pointed out – in that suit, when the first suit for recovery of dues was filed, for alleged relief, damages sought for in the subsequent suit could have also been sought for. It was therefore held that the respondent had omitted certain reliefs which were available to it at the time of filing of the first suit, and after having relinquished the same, it could not have filed a separate suit in view of the provisions of sub- rule 2 of Order II Rule 2 of the Code.

Read Also:

Earlier SC Decisions – INJUNCTION is a ‘Possessory Remedy’ in Indian Law

It is also important to note:

It is a trite law that courts protect settled possession. The person claiming the injunction needs to prove prove possession only (and not title).

See:

  • Poona Ram v. Moti Ram, AIR 2019 SC 813,
  • Aarthi v. Aruna Gautham. 2015 -1 RCR (Civil) 160,
  • Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769.
  • Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131.
  • Ram Rattan v. State of Uttar Pradesh, (1977) 1 SCC 188.
  • Puran Singh v. The State of Punjab, (1975) 4 SCC 518.
  • Munshi Ram v. Delhi Administration, (1968) 2 SCR 455.

Critical Analysis

The necessary ingredients to attract Order II rule 2 are (i) the same causes of action in two suits and (ii) a fair requirement of making a relief in the earlier suit. The earlier suit in Channappa v. Parvatewwa, 2026 INSC 343, was one for a declaration regarding adoption and injunction. It was decreed in favour the plaintiff. The subsequent suit was for relief of declaration of title and the consequential possession.

The bar of constructive res judicata, as well as that under Order II Rule 2 CPC, was held to apply to the second suit, since Channappa (the defendant) had already disputed the plaintiff’s rights in the property in the first suit, and asserted his own title on the basis of adoption. The Apex Court held as under:

  • “In the present case, Parvatewwa (plaintiff) herself had pleaded in the earlier proceedings that Channappa (defendant) was asserting rights over the suit properties on the basis of the adoption. The dispute as to the parties’ respective rights over the property was, therefore, already in existence at the time of institution of Suit–I. In such circumstances, the relief of declaration of title and the consequential relief relating to possession could and ought to have been claimed in the earlier proceedings.”

Traditionally, a claim for declaration of title coupled with recovery of possession arises only upon dispossession. In the present case, it can be remarked – had the plaintiff been actually dispossessed on the date of the cause of action for the first suit, the relief of injunction would not have been granted. On that view, no fault can be found with the plaintiff for not seeking a declaration of title and recovery of possession in the earlier suit.

It can be further pointed out –

  • the omission in the first suit was not “deliberate”;
  • the relief claimed in the second suit was not “available” at the time of the first suit;
  • the causes of action in the two suits were not identical in substance; and
  • the evidence required to support the claims in the two suits was not the same.

Therefore, the facts of this case seem to present a real and arguable difficulty in treating the second suit as defective.

Conclusion

Nevertheless, the answer to the above ‘critical analysis’ can be derived from the very facts of Channappa v. Parvatewwa, following the Court’s own formulation, as under:

  • (i) the relief of declaration as to adoption and the consequential injunction (sought in the first suit) were closely connected with the relief of declaration on title sought in the second suit, even if both declarations were not essential in the first suit;
  • (ii) the plaintiff was ‘entitled to make‘ relief of ‘declaration of title’ in the earlier suit; and
  • (iii) the decision aligns with the objective of avoiding multiplicity of proceedings.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

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Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

Applicability of Res Judicata on IA Orders (at Different Stages of the Same Suit) 

Jojy George Koduvath

Abstract

  • The principles of res judicata apply to Orders on Interlocutory Applications.
  • A stay, injunction, or receiver order does not operate as res judicata when the case is taken up for final judgment. But Orders as to the issuance of commissions, amendment of pleadings, impleadment of parties, condonation of delay, etc., operate as res judicata.
  • Once an Order is passed in a suit, it stands as res judicata at its subsequent stages, that is, in appeal, revision, etc.
  • As per Section 105 CPC, adverse IA Orders (such as issuance of commissions, amendment of pleadings, impleadment, condonation of delay) can be challenged in an appeal from the (final) decree.
  • The Revision Order in the IA can also be challenged before the Appellate Court when an appeal is taken against the decree in that case. (Channappa v. Parvatewwa, 2026 INSC 343).
  • If an appeal is provided from the IA Order and a pronouncement has come from the appeal court, the decision on the specific issue (directly and substantially in issue) definitely stands as res judicata.
  • If an earlier finding is liable to be varied based on evidence adduced at trial, it will not operate as res judicata. (E.g., granting leave under Sections 91 or 92 CPC, permitting publication under Order I Rule 8).

IA Orders are Conclusive Determination of the Issue Raised

In Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941, it was observed as under:

  • “The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the Trial Court or a Higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.” (Quoted in: Barkat Ali v. Badri Narain, AIR 2008 SC 1272; 2008-4 SCC 615.)

In Hope Plantations Ltd. v. Taluk Land Board, Peermade, 1999 (5) SCC 590, it was held that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceedings. (Referred to in: C. V. Rajendran v. N. M. Muhammed Kunhi, AIR 2003 SC 649; 2002-7 SCC 447).

In Madhya Pradesh Madhya Kshetra Vidyut Vitran Co. Ltd. v. Bapuna Alcobrew Private Ltd., 2024 INSC 829; 2024 KLT(Online) 2638; 2024-6 KLT(SN) 23, it is held as under:

  • “To recount, the order of the High Court dated 14th February, 2001, though interim in the sense that it disposed of an interlocutory application, was a conclusive determination of the issue raised by the first respondent itself and which went against it.”
Read Also:
•    Res Judicata and Constructive Res Judicata
•   Res Judicata and Judicial Precedent
•    What is Binding Judicial Precedent – In a Nutshell
•    No Res Judicata on Finding on Title in an Injunction Suit
•    Res Judicata: ‘Same issue’ must have been ‘Adjudicated’
•    Res Judicata and Appeal: No Res Judicata on Adverse Findings
•    Order II, Rule 2 CPC – Not to Vex Defendants Twice
•    A Landmark Decision on Order II rule 2, CPC – Cuddalore Powergen Corpn .
•    Termination of Tenancy (& Grant) by Forfeiture (for Claiming Title)
•    SUIT on TITLE: Landlord can Recover Property on GENERAL TITLE
•   Recovery of Possession Based on Title and on Earlier Possession
•   Recovery of Possession (Based on Title) and Eviction (of Tenants)
•    Channappa v. Parvatewwa, 2026 INSC 343: Suit Dismissed for Order II Rule 2 Bar: For No ‘Consequential Declaration’ on Title, in the Earlier Suit 

Interlocutory Orders – Various kinds; No Res Judicata on Certain Orders

Interlocutory orders are of various kinds.

  • No res judicata: Orders of stay, injunction, or appointment of a receiver do not operate as res judicata when the case is taken up for final judgment, as they are intended merely to preserve the status quo.
  • Operate as res judicata: However, orders relating to the issuance of commissions, amendment of pleadings, impleadment of parties, condonation of delay, etc., stand on a different footing.

If an earlier finding is liable to be varied on the basis of evidence adduced at trial, it will not operate as res judicata. For example, findings rendered while granting leave under Sections 91 or 92 of the Code of Civil Procedure, 1908, or while permitting publication under Order I Rule 8, are not final determinations and do not attract res judicata.

In Arjun Singh v. Mohindra Kumar: AIR 1964 SC 993, the Apex Court has held as follows:

  • “It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceeding before the court usually take. They do not in that sense decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court”.
  • (Quoted in: Shalini Agarwal v. Shandar Industries Private Ltd., AIR2021 (Uchal) 26;
  • Kalapala Narendra Babu v. Kalapala Chennakrishniah, 2020-3 ALD 197; 2020-6 ALT 25;
  • A. Sengoda Gounder v. P. Malliga, 2019-5 CTC 541;
  • Saibinnisha v. Abdul Vahab, 2018-3 ILR(Ker) 716; 2018-3 KHC 818; 2018-3 KLT 449;
  • Sunshine India Pvt. Ltd. v. Bhai Manjit Singh, 2013-8 AD 189; 2014 2013-202 DLT 777; 2013-138 DRJ 223; 2014-7 RCR (Civ) 8084 (Del);
  • N. Narayana v. Ramesh Kumar, ILR 2010 (Kar) 2446; 2010-2 KCCR 1464).

IA Orders can be Challenged in Appeal from Decree under S. 105 CPC

However, Interlocutory Orders (such as issuance of commissions, amendment of pleadings, impleadment, condonation of delay) are open for adjudication by an appellate authority in an appeal against the final judgment. (Prahlad Singh v. Col. Sukhdev Singh, AIR 1987 SC 1145; 1987-1 SCC 727). It is not necessary that an interlocutory order must be challenged immediately by an appeal. It can be challenged when an appeal is filed against the final decree. The proposition – principles of res judicata apply to IA Orders (at different stages of the same suit) – is subject to Section 105 CPC.

Section 105 CPC provides that when an appeal is filed against the decree in a suit, any error, defect or irregularity in an Order can be raised as a ground in the memorandum of appeal. It applies to IA Orders which had not been appealed from, either because no appeal lay or even though an appeal lay, an appeal was not taken. The dismissal of the Revision application, against the Order on IA, also makes no difference.

Section 105 reads as under:

  • ‘105. Other orders – (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
  • (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.’

It was explained by Das Gupta, J. in Satyadhan Ghosal v. Smt Deorajin Debi, AIR 1960 SC 941, (1960) 3 SCR 590, as under:

  • ‘Does this, however, mean that because an earlier stage of the litigation a court had decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher court cannot at a later stage of the same litigation consider the matter again? …
    • It is clear, therefore, that an interlocutory order
    • which had not been appealed from, either because no appeal lay or even though an appeal lay, an appeal was not taken.
    • could be challenged in an appeal from the final decree or order.’ (Quoted in: Arjun Singh v. Mohindra Kumar AIR 1964 SC 993; Channappa v.  Parvatewwa, 2026 INSC 343).

Whether an appeal would lie or not from an Order on an IA is determined under Section 104 read with Order 43, CPC.

Effect of Earlier Appeal from the IA Order

Where an appeal lies from an interlocutory order, and the appellate court finally adjudicates an issue directly and substantially in issue, such a determination operates as res judicata in a subsequent appeal from the decree.

Order of Remand is an Interlocutory in Characterv

In Satyadhyan Ghosal v. Sm. Deorajin Debi, AIR 1960 SC 941, (1960) 3 SCR 590, it was held as under:

  • “In our opinion, the order of remand was an interlocutory judgment which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order.” 
  • (Referred to in: Mangal Prasad Tamoli v.Narvedshwar Mishra, AIR 2005 SC 1964; 2005-3 SCC 422;
  • C. V. Rajendran v. N. M. Muhammed Kunhi, AIR 2003 SC 649; 2002-7 SCC 447;
  • Lonankutty v. Thomman, AIR 1976 SC 1645; 1976-3 SCC 528;
  • Management of The Northern Railway Co Operative Credit Society Ltd., Jodhpur v. Industrial Tribunal, Rajasthan, AIR 1967 SC 1182; 1967-2 SCR 476)

Revision Order Passed by the High Court will Not Operate as Res Judicata

Under Section 115 of the Code of Civil Procedure, 1908, the High Court may call for the record of any case and make such order as it thinks fit where the subordinate court has (i) exercised a jurisdiction not vested in it by law, (ii) failed to exercise a jurisdiction so vested, or (iii) acted in the exercise of its jurisdiction illegally or with material irregularity. Revisional jurisdiction is thus confined to jurisdictional errors, illegality, and material irregularity, and does not extend to a full reconsideration of the merits as in an appeal. Consequently, a decision rendered in a revision against an interlocutory order (such as an order on an interlocutory application) will not, in principle, operate as res judicata at the stage of final adjudication.

Therefore, by virtue of Section 105 of the CPC, the order on the interlocutory application, even as modified in revision, remains open to challenge before the appellate court in an appeal against the final decree. (See: Channappa v.  Parvatewwa, 2026 INSC 343)

“Save as otherwise expressly provided”

It is interesting to note that no statute in India bars an appellant from questioning IA Orders when he files an appeal against the decree (provided it was not appealed earlier and a pronouncement had been invited, as stated in Section 105, CPC).

In Maharaja Moheshur Singh v. Bengal Government, (1859) 7 Moore’s Indian Appeals 283, the Privy Council said it as under:

  • “We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting forever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose upon the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay, and on the other inflict upon his opponent similar calamities.” (Quoted in: Channappa v.  Parvatewwa, 2026 INSC 343)

Arjun Singh v.Mohindra Kumar AIR 1964 SC 993

In Arjun Singh v. Mohindra Kumar AIR 1964 SC 993, it is held that the proposition – Applicability of Res Judicata on IA Orders (at Different Stages of the Same Suit) – is subject to Sec. 105. The Apex Court held as under:

  • “If an application made under the provisions of that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to ‘set the clock back’ does not attain finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages so as to preclude its being reconsidered. Even if the rule of res judicata does not apply, it would not follow that on every subsequent day which the suit stands adjourned for further hearing, the petition could be repeated, and fresh orders sought on the basis of identical facts.” (Quoted in: Channappa v.  Parvatewwa, 2026 INSC 343)

Channappa v.  Parvatewwa, 2026 INSC 343

Effect of dismissal of I.A. No. 4 questioning the maintainability of the suit under Order II Rule 2, CPC  was came for consideration in Channappa v.  Parvatewwa, 2026 INSC 343.

It was argued in I.A. No. 4 that the cause of action in both suits was the same.  In the petition, the maintainability of the second suit was questioned. It was prayed that the suit was liable to be dismissed. The trial court found that the cause of action in both suits was different. The revision petition preferred against the same before the High Court was also dismissed. Hence, it was contended that the Order has attained finality and cannot be re-agitated. This submission was not accepted.

After quoting Arjun Singh v. Mohindra Kumar (supra), it is observed in Channappa v.  Parvatewwa – notwithstanding the earlier rejection of the application raising the plea on Order II Rule 2 CPC, it is open to the defendants to urge before the Appellate Court that the suit was barred under Order II Rule 2 CPC. Thereafter, it is held as under:

  • “Therefore, the contention that the dismissal of the application would operate as a bar to re-agitate the issue is misconceived.”

Notwithstanding the earlier rejection of the application raising the plea on Order II Rule 2 CPC, it is held in this decision that it is open to the defendants to urge before the Appellate Court that the suit was barred under Order II Rule 2 CPC. Thereafter, it is held by our Apex Court as under:

  • “Therefore, the contention that the dismissal of the application would operate as a bar to re-agitate the issue is misconceived.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

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M.V. Ramachandrasa v.  Mahendra Watch Company, 2026 INSC 348: Decision on Subletting Without Consent of Landlord

Jojy George Koduvath

In M.V. Ramachandrasa v.  Mahendra Watch Company, 2026 INSC 348, the Supreme Court of India (Ahsanuddin Amanullah, R. Mahadevan, JJ.), considered two questions of substantial importance.

  • First, whether, in the exercise of revisional jurisdiction under Section 46 of the Karnataka Rent Act, 1999, the Court is entitled to reassess the evidence and substitute its own conclusions; and
  • Second, what constitutes “subletting” under the Rent Act, and in what manner the burden of proving the same is to be discharged by the landlord.

‘No’ was the answer given by the Apex Court in the first question.

The findings, on eviction on the ground ‘sub-letting’, in a nutshell, is that the Initial burden of proving sub-letting is on the landlord, and once it is done, the onus shifts to the tenant.   

The findings on sub-letting can be summarised as under:

(i) Eviction on the ground sub-letting – Two Ingredients: For eviction under rent control laws on the ground sub-letting, two ingredients have to be established-

  • (one) parting with possession in favour of a third party, and
  • (two) such parting has been done without the consent of the landlord.

(ii) Inducting a partner not amount to sub-letting: Inducting a partner by a tenant by itself does not amount to sub-letting. However, the court may tear the veil of partnership to find out the real nature of transaction.

(iii) The existence of deed of partnership would not preclude the landlord from bringing on record, by adducing evidence or by means of cross-examination, making out a case of sub-letting or parting with possession.

(iv) If the tenant is actively associated with the partnership business and retains the control over the tenancy premises with him, may be along with partners, the tenant may not be said to have parted with possession.

(v) Initial burden of proving sub-letting is on the landlord: Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third party and that he (tenant) continues to hold legal possession in tenancy premises.

  • In other words, initial burden lying on the landlord would stand discharged by adducing prima facie proof of the fact that a party other than the tenant was in exclusive possession of the premises. A presumption of sub-letting may then be raised and would amount to proof unless rebutted.
  • The court held – the determinative test, is whether the tenant retains legal possession. That is – whether he retired from the business or he has ceased to have any role in the business or the premises.
  • Once such exclusive possession by third parties is established, the burden shifts to the respondents to prove the genuine partnership.

The rent receipts in the name of the original tenant does not support the respondents’ case, as it is legal possession and control, and not the formality of rent payment, which is determinative.

The Apex Court relied on the folloing earlier decisions:

1.  Associated Hotels of India Ltd v. S.B. Sardar Ranjit Singh (AIR 1968 SC 933) – It was held in this decision – the landlord must prove parting with possession. Once exclusive possession of a third party is established, the burden shifts to the tenant.

2. In Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31, and Mahendra Saree Emporium v. G.V. Srinivasa Murthy, (2005) 1 SCC 481, it was held that once a prima facie case of exclusive possession by a stranger is made out, a presumption of sub-letting arises, thereby shifting the onus onto the tenant.

3. In Ram Murti Devi v. Pushpa Devi, (2017) 15 SCC 230, it was pointed out that direct evidence of sub-letting is seldom available, because of the clandestine arrangements, and it has to be inferred from surrounding circumstances, particularly where exclusive possession of a third party is established.

Also Read:

The following decisions were referred to in M.V. Ramachandrasa v.  Mahendra Watch Company (supra) while considering ‘unlawful sub-letting / assignment’:

  • .(a) Kala v. Madho Parshad Vaidya, (1998) 6 SCC 573
  • (b) Joginder Singh Sodhi v. Amar Kaur, (2005) 1 SCC 31
  • (c) Shama Prashant Raje v. Ganpatrao, (2000) 7 SCC 522
  • (d) Bharat Sales Ltd. v. LIC, (1998) 3 SCC 1
  • (e) Amar Nath Agarwalla v. Dhillon Transport Agency, (2007) 4 SCC 306
  • (f) Murlidhar v. Chuni Lal, 1969 Ren CR 563 : 1970 Ren CJ 922 (SC)
  • (g) Mohammedkasam Haji Gulambhai v. Bakerali Fatehali, (1998) 7 SCC 608
  • (h) Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217
  • (i) Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri, (1987) 3 SCC 538
  • (j) Jagan Nath v. Chander Bhan, (1988) 3 SCC 57
  • (k) Gopal Saran v. Satyanarayana, (1989) 3 SCC 56
  • (l) Shalimar Tar Products Ltd. v. H.C. Sharma, (1988) 1 SCC 70
  • (m) Gundalapalli Rangamannar Chetty v. Desu Rangiah, AIR 1954 Mad 182
  • (n) Jackson v. Simons, (1923) 1 Ch 373 : 1922 All ER Rep 583
  • (o) Chaplin v. Smith, (1926) 1 KB 198 (CA)
  • (p) Vishwa Nath v. Chaman Lal Khanna, AIR 1975 Del 117
  • (q) G.K. Bhatnagar v. Abdul Alim, (2002) 9 SCC 516
  • (r) Parvinder Singh v. Renu Gautam, (2004) 4 SCC 794
  • (s) Krishnawati v. Hans Raj, (1974) 1 SCC 289
  • (t) Vaishakhi Ram v. Sanjeev Kumar Bhatiani, (2008) 14 SCC 356
  • (u) Nirmal Kanta v. Ashok Kumar, (2008) 7 SCC 722

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India