Vadiyala Prabhakar Rao v. The Government of AP: Title is Not Proved by Revenue Entries; Title Claims are Investigated by Civil Courts, Not by High Courts

The mere acceptance of municipal or agricultural taxes, or the granting of a bank loan based on these records, does not stop the State from challenging the ownership of the land.

Saji Koduvath, Advocate, Kottayam

In Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh (Pankaj Mithal, S.V.N. Bhatti, JJ.), 2026 INSC 450, the Supreme Court of India, held to the following effect:

  • The law is well settled that the claim to title is not proved through Revenue entries.
  • In a Writ of Certiorari, the High Court cannot declare the title of the lands.
  • The High Courts (under Article 226 of the Constitution of India) are not the appropriate forum for resolving serious disputes concerning questions of fact and title to property. It is so held in Sohan Lal v. Union of India,   (1957) 1 SCC 439.
  • The title claims to the property are investigated by the civil courts in a regularly constituted suit, rather than the courts exercising the prerogative to issue writs.
  • Unauthorised entries or mutations may befall in the Revenue Records (Pahanies).

Facts of the Case in a Nutshell

  • The Appellants, on 09.11.1990, moved the Joint Collector for the exclusion of Subject Matter from the proposed declaration as Forest Land/Reserve Forest.
  • The Joint Collector, rejected the claim because the Appellants failed to prove the primary document through which title to the property is claimed by them.
  • The learned Single Judge, notwithstanding the above deficiencies in the quality of documentary evidence, expanded the scope of judicial review, and for all purposes declared the claim of the Appellants as maintainable for the title to the Subject Matter.

Findings

The Apex Court held in para 16 and 17 as under:

  • “16.1 Entries in Revenue Records or Jamabandi serve only a “fiscal purpose”.
  • Their primary function is to enable the person whose name is mutated in the records to pay the land revenue in question.
    • Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; 
    • Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; 
    • Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; 
    • Sawarni v. Inder Kaur, (1996) 6 SCC 223.
  • 16.2 A Revenue Record is not a document of title and does not confer any ownership or title upon the person whose name appears in it.
    • Suraj Bhan. (supra); 
    • Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; 
    • State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; 
    • Jitendra Singh (supra).
  • Further, mutation does not create or extinguish title and has absolutely no presumptive value regarding title.
    • Balwant Singh v. Daulat Singh (D) By Lrs., (1997) 7 SCC 137; 
    • Sawarni (supra);
    • Bhimabai Mahadeo Kambekar. (supra)
  • 16.3 The mere acceptance of municipal or agricultural taxes, or the granting of a bank loan based on these records, does not stop the State from challenging the ownership of the land.
    • Star Bone Mill & Fertiliser Co. (supra)
  • 16.4 While they do not prove title, Revenue Records can raise a presumption regarding possession.
    • Gurunath Manohar Pavaskar (supra); 
    • Star Bone Mill & Fertiliser Co. (supra)
  • Maintenance and custody of Revenue Records is the exclusive domain of the Patwari, and it is not uncommon that Revenue Records are often tinkered with by him to suit the exigencies.
    • Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349. 
  • 16.5 Stray or solitary entries recorded for a single year do not raise a presumption of rights and cannot be relied upon against a long, consistent course of revenue entries in favour of another party.
    • Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi, (1973) 2 SCC 261;
    • Salem Municipality. (supra)
  • 16.6 The creation of fabricated records in collusion acts as a camouflage to defeat the legal rights of the actual tiller, and the Government is not bound by them.
    • Baleshwar Tewari v. Sheo Jatan Tiwary, (1997) 5 SCC 112 ; 
    • State of Punjab v. Sadhu Ram, (1997) 9 SCC 544.
  • “17. For the limited purpose of appreciating the case of Appellants, we notice that the two Revenue Records are (i) Faisal Patti for 1342F, and (ii) Vasool Baqi for 1352F. The Pahanie copy of the village for the Faslis 1346-1356, shown in Column No. 3, records Survey No. 81 of Kalvalanagaram as Jungle. At best, the Pahanies, as is evident to a mere perusal, are unauthorised entries or mutations. The law is well settled that, through Revenue entries, the claim to title is not proved. Further, in a Writ of Certiorari, the learned Single Judge declared the title of the Appellants. On perusal of these documents, and appreciating the intrinsic quality deficiency and the contradictory mutation, it is noted that Subject Matter is recorded as “Jungle” (meaning Forest), and the names of private individuals were recorded in one of the columns. These entries are not supported by a patta or an Order lawfully made, authorising mutation as per the extant procedure.

This Court, in Sohan Lal v. Union of India and another, (1957) 1 SCC 439, noted that proceedings under Article 226 of the Constitution of India are not the appropriate forum for resolving serious disputes concerning questions of fact and title to property. Investigating these claims is the proper function of a civil court in a regularly constituted suit, rather than of a court exercising the prerogative to issue writs.”

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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: 

Revenue Records, Mutation

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

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other

Jojy George Koduvath

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other: In Anima Mallick v. Ajoy Kumar Roy (B.N. Kirpal and S.S.M. Quadri, JJ.), 2000-4 SCC 119, our Apex Court held that where the sister gave possession as gratuitous to her brother, the sister could reclaim such possession even without knowledge of the brother; and that ‘no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. It is held in this decision as under:

  • “(1) Special leave granted.
  • (2) These proceedings arise from a suit filed under Section 6 of the Specific Relief Act, which was filed by the respondent as per the judgment of the High Court. The respondent in his suit stated that he was using the garage owned by the appellant, his sister. The contention was that he had been dispossessed from the garage by his sister.
  • (3) The trial court ordered possession to be restored but on an application filed under Section 115-A of the Civil Procedure Code, the District Judge allowed the said application filed by the applicant (appellant herein). The order of the trial court was set aside. This order was sought to be challenged by a petition under Article 227 of the Constitution of India in the Calcutta High Court and the decision of the trial court had been restored.
  • (4) Without going into the question of law we are of the opinion that under Article 227 the High Court ought not to have exercised its discretion and interfered with the judgment of the District Judge. It is evident that the respondent was using the garage of the appellant on permission having been granted by the sister to the brother. According to the judgment of the High Court the respondent was claiming no legal interest in the said garage as he was not claiming its ownership because he was not claiming to be a tenant or even a licensee. His possession was purely gratuitous, and even if, without the knowledge of the respondent, the appellant has reclaimed the possession, it was not a fit case for the High Court to have interfered under Article 227 of the Constitution.
  • (5) We, therefore, allow this appeal, set aside the judgment of the High Court and restore the decision of the District Judge.”
  • (Relied on in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; AIR 2020 SC 1496.)

In Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, it is observed as under:

  • “26. This Court in Anima Mallick v. Ajoy Kumar Roy and Another (2000) 4 SCC 119 held that where the sister gave possession as gratuitous to the brother, this Court restored possession to the sister as it was purely gratuitous basis and the sister could have reclaimed possession even without knowledge of the brother.”

No injunction can be granted against the true owner

It is further pointed out in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, as under:

  • “27. According to the appellant, this Court in Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others (2004) 3 SCC 137 has observed that no injunction can be granted against the true owner, and Section 6 of the Specific Relief Act cannot be invoked to protect the wrongdoer who suppressed the material facts from the Courts.”
  • “96. The respondent’s suit for injunction against the true owner – the appellant was not maintainable, particularly when it was established beyond doubt that the respondent was only a caretaker and he ought to have given possession of the premises to the true owner of the suit property on demand. Admittedly, the respondent does not claim any title over the suit property and he had not filed any proceedings disputing the title of the appellant.”

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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’
•   Gratuitous Possession – Owner can Reclaim at Any Time
•   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

Suit on Possessory Remedy, Other side Admits Possession; Should the Will be Proved?

Jojy George Koduvath

Suit on Possessory Remedy, Other side Admits Possession; Should the Will be Proved? No. Because proving the Will will be a surplusage.

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Possession is a Substantive Right: Possession by itself is a substantive right recognised by law. It is heritable and transferable, as explained in the following decisions –

  • Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,
  • Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
  • Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
  • Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864). 

Possession Follows Title and Adverse Possession: It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144, that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

  • “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) are attracted. Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684 considered – when a Will is ‘categorically’ and ‘clearly’ admitted by the other side, should it be proved by calling a witness of the Will under Section 68 of the Evidence Act. The Madras High Court came to the conclusion that Section 68 will not be attracted where the Will is “admitted” by the other side.

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Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other: In Anima Mallick v. Ajoy Kumar Roy, (2000) 4 SCC 119, our Apex Court held that where the sister gave possession as gratuitous to her brother, the sister could reclaim such possession even without knowledge of the brother; and that ‘no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (Relied on in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; AIR 2020 SC 1496.)

Documents required by law to be attested by attesting witnesses.

The following documents are required by law to be attested by attesting witnesses.

  1. Will: Sec. 63 of the Succession Act.
  2. Mortgage deed: Sec. 59 of the T P Act.
  3. Gift deed: Sec. 123 of the T P Act.
  4. Bond: Sec.  2(5) of the Indian Stamp Act, 1899.

Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove the aforesaid four documents required by law to be attested. The proviso to Sec. 68 lays down the following: if the aforesaid documents, EXCEPT WILL, are (i) registered in accordance with the provisions of Indian Registration Act, 1908 and (ii) not specifically denied by the person who executed it, execution of those documents need not necessarily be proved by calling ‘an attesting witness’. That is, for the purpose of proving the Will (alone), the examination of ‘an attesting witness’ is necessary. It is difficult to support the logic and grounds for picking out Will (in Sec. 68 Evidence Act), from other (three) documents that are required by law to be attested by attesting witnesses.

But, note – the Will stands picked out (in Sec. 68 Evidence Act) from other (three) documents that are required by law to be attested by attesting witnesses.

Do General Provisions of S. 58 give way to Special Provisions of S. 68

Three views are possible:

  • First: Requirement of calling at lest one witness to prove those documents that requires attestation, in spite of express admission from the opposite party as to the execution of the document in the written statement.
  • Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
  • Third: If only the Will is expressly or categorically admitted, then only there will be alleviation of burden laid down in Sec. 68.

In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.

But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.

Dominant Owner  Cannot Dispute The Title Of The Servient Owner

It is a trite law in ‘Law on Easement’ that the dominant owner cannot dispute the title of the servient owner (Reghuprasad v. M.  Raghunathan, AIR 2020 Ker 16). 

In Omana v. Reji Kurian, AIR 2022 Ker 91, it is held (K. Babu, J.) as under:

  • “19. Yet another aspect that requires consideration is that the pleadings of the defendants in the written statement go in the line, denying the title of the plaintiff over the ‘B’ schedule way. One of the fundamental ingredients in a claim of easement is the admission of the title of the servient owner by the dominant owner. On this ground alone, the claim of the defendants over plaint ‘B’ schedule property by way of easement by prescription must fail.”

Recovery on “GENERAL TITLE” and “SUPERIOR TITLE“

The legal proposition on “General Title” is seen adhered to in Mt.  Sewti v.Rattan, AIR 1951  HP 54. It is observed as under:

  • “It has therefore been held that where a suit for recovery of possession of property based on a lease fails, a subsequent suit to recover the same property on the strength of general title is not barred by res judicata: Zamorin v. Narayanan, 22 Mad. 323 and Kuttt Ali v. Cindan, 23 Mad. 629.”

The legal proposition on “Superior Title” is seen adhered to in Shankarlal v. Gangabisan, AIR 1972  Bom 326, and it is observed as under:

  • “The plaintiff could have sued upon this document and the claim in that case would have been under the contract. But the plaintiff in the subsequent suit did not sue upon the contract but he sued upon his general title as the owner of the property. He alleged that the defendants were trespassers and that the plaintiff was entitled to get possession and further damages on the basis of his title as stated in the passage we have quoted above. Therefore, the plaintiff was claiming in the second suit on the basis not of a title arising under the contract but dehors the contract. In other words, the plaintiff was seeking to enforce in the subsequent suit his general title as owner and not his title to get back the property under the contract of lease. It is clear therefore that this title was superior to the contract between the parties and it was by virtue of this superior title that the plaintiff claimed in the second suit. The respective causes of action in the earlier suit and in the subsequent suit were therefore entirely distinct and separate.”

Landlord can win the TITLE SUIT if he Proves his GENERAL TITLE

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the plaintiff-landlord sued defendant for eviction. The Defendant claimed title over the property. It is held–

  • “The landlord in a given case#* although may not be able to prove the relationship of landlord and tenant, but in the event he proves his GENERAL TITLE, may obtain a decree on the basis thereof.”
    • #*Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief in ‘civil suit’.
  • This decision is referred to in TribhuvanShankar v. Amrutlal (S.B. Sinha and Deepak Misra, JJ.), 2014-2 SCC 788.

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the question was formulated by the Court as under:

  • “Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.”

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Dharmendra Kalra v. Kulvinder Singh Bhatia: Striking off defence under Order XV Rule 5 CPC (U.P. Amendment): Consequence is Drastic; Mere Denial of the Landlord–Tenant Relationship Not Absolve Tenant from the Statutory Obligation to Deposit Rent

Saji Koduvath, Advocate, Kottayam

Order XV Rule 5 CPC (U.P. Amendment)

The Rule 5 (U.P. Amendment) reads as under:

5. Striking off defence on failure to deposit admitted rent, etc.

  • .(1) The defendant shall:
  • .(a) At or before the first hearing, deposit the entire amount admitted by him to be due, together with interest at 9% per annum; and
  • (b) Throughout the continuation of the suit, regularly deposit the monthly amount due within the prescribed time.
  • If the defendant fails to make such deposit, the Court may, subject to sub-rule (2), strike off his defence.
  • (2) Before striking off the defence, the Court may consider any representation made by the defendant showing sufficient cause for the default.

Order XV Rule 5 (U.P. Amendment) Anabysed

Order XV Rule 5 (U.P. Amendment) applies in a suit for:

  • .1. Eviction of lessee and
  • 2. Recovery of rent.

Dharmendra Kalra v. Kulvinder Singh Bhatia

Supreme Court of India in Dharmendra Kalra v. Kulvinder Singh Bhatia, Prasanna B Varale, Aravind Kumar, JJ., 2026 INSC 492, while considering Order XV Rule 5 CPC (U.P. Amendment), held to the following effect:

Under Order XV Rule 5 CPC (U.P. Amendment), if any default in payment of rent, the trial court can determine, at the ‘first date of hearing’ of the suit –

  • 1. whether the default is wilful or bonafide
  • 2. whether there has been due compliance or substantial compliance with the requirements of Order XV Rule 5 CPC;

The Court further pointed out – (i) Striking off is not entirely automatic; the tenant may explain the default and seek the Court’s indulgence. (ii) If such an order is passed, there should be a reasoned order, after affording adequate opportunity to both parties.

Earlier Decisions Referred by the Apex Court

1. Bimal Chand Jain v. Sri Gopal Agarwal, (1981) 3 SCC 486 where in it is observed:

  • 6. It seems to us on a comprehensive understanding of Rule 5 of Order 15 that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, “the court may subject to the provisions of sub-rule (2) strike off his defence”. We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word “may” in sub-rule (1) merely vested power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand [ Civil Revision No. 356 of 1978, decided on October 30, 1980] . We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order 15.

2.  Santosh Mehta v. Om Prakash (1980) 3 SCC 610, wherein it is held:

  • “2. Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and, if evicted, will be helpless. Even so, the legislature has provided some grounds for eviction, and the Delhi law contains an extreme provision for striking out altogether the defence of the tenant which means that even if he has excellent pleas to negative the landlords’s claim the court will not hear him. Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested, not a mandate imposed. Section 15(7) reads thus:
  • “If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.”
  • 3. We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facultative power. He may, or may not strike out the tenant’s defence. A judicial discretion has built-in-self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a court, striking out a party’s defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitional non-performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power.” (emphasis supplied)

3. Siraj Ahmad Siddiqui v. Prem Nath Kapoor, (1993) 4 SCC 406, wherein it is observed:

  • “12. A few provisions of the said Act and of the Code of Civil Procedure, 1908, need to be examined. Section 38 of the said Act states that the provisions thereof would have effect notwithstanding anything inconsistent therewith contained in the Code. Order V, Rule 1 of the Code states that when a suit has been duly instituted summons may be issued to the defendant to appear and answer the claim on a day to be therein specified, provided that no summons need be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim. Where the summons is issued the court may direct the defendant to file a written statement on the date of his appearance and cause an entry to that effect to be made in the summons. Order V, Rule 5 provides that in every suit heard by a Court of Small Causes (which the trial court was) the summons shall be for the final disposal of the suit. Order VIII, Rule 1 of the Code uses the expression first hearing and it says that the defendant shall on or before the first hearing or within such time as the court may permit present a written statement of his defence. The court is called upon to frame issues under the provisions of Order XIV, Rule 3 on the basis of the pleadings and documents of either party to the suit.
  • 13. The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression “first hearing” for the purposes of Section 20(4) mean something different? The step or proceeding mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the court for it is, after all, a “hearing” that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision.
  • Further, it is not possible to construe the expression “first date for any step or proceeding” to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary.

4.  Salem Advocate Bar Association v. Union of India4 4 (2005) 6 SCC 344, wherein it is held:

  • 20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

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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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 State Bank of Travancore v. A. K. Panicker, AIR 1971 SC 996, (1972) 4 SCC 274 (G.K. Mitter, K.S. Hegde, P. Jaganmohan Reddy), it was held as under:

  • “9. Now coming to the question of adverse possession, there is conclusive evidence to show that the suit property was at all times in the possession of the tenants of the Tharwad referred to earlier. Krishnan Krishnan, Vellu and Kuruvilla at best could have only collected the rent. The evidence in this regard has been discussed in detail by the learned judge of the High Court. It is not necessary to deal with that evidence over again. We accept the conclusion of the learned judge that the suit property was all along in the possession of the tenants. Further as Krishnan Krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of Vellu and Kuruvilla for the same reason must be held to be permissive possession.  A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before the present suit.”

Upholding the decree of the trial court, it was observed in State Bank of Travancore v. A.K. Panicker (SBT v. Aravindan Kunju Panicker), AIR 1971 SC 996, (1972) 4 SCC 274, as under in Para 4 of this decision

  • “4. The trial Court came to the conclusion that Krishnan Krishnan, in law, can only be an agent of the plaintiffs in the first suit. He can only have a lien over the suit property, and the subsequent purchasers of his right can have no better title than what Krishnan Krishnan had. That Court also repelled the contention of the contesting defendants that Krishnan Krishnan or those who acquired his rights had perfected their title to the suit property by adverse possession. It held that the possession of Krishnan Krishnan was permissive and the same could not be considered as being adverse to the real owners. It further held that the property in question was always in the possession of the tenants, and it was never in the possession of Krishnan Krishnan or those who purchased his rights. It also held that there is no evidence to show that either Krishnan Krishnan or the subsequent purchasers of the suit property ever to the knowledge of the true owners asserted hostile title to the property.”
  • (Referred to in Pt. Shamboo Nath Tikoo v, S. Gian Singh, 1995 Supp 3 SCC 266.)

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., Madras High Court), 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 India, UK and US

Saji Koduvath, Advocate, Kottayam

Abstract of the Contents

  • Characteristics of Indian law on Adverse Possession:
    • 1. Animus on the part of the claimant/trespasser to dispossess the true owner,
    • 2. The possession of the trespasser must be open and hostile enough to impute knowledge thereof to the true owner.

Adverse Possession: Indian Law Requires – (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 ‘animus’ required for adverse possession is the animus (of the claimant/trespasser) to possess the land, coupled with the conscious aim and objective of ‘dispossessing‘ the true owner.

3. 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.

4. 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.

5. 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.”)

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

JA Pye (Oxford) Ltd v. Graham [(2002) 3 All ER 865; (2003) 1 AC 419; (2002) 3 WLR 221 ] was rendered by the House of Lords, on adverse possession.

  • The crux of this decision is that the squatter’s intention (to exclude the owner) is decisive, and not that of the true owner,

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: Another (later) decision in the same case, J.A. Pye (Oxford) Ltd v. United Kingdom [Grand Chamber Judgment], (2007) 46 EHRR 45, by the Fourth Section (Chamber) of the European Court of Human Rights (ECHR), addressed a different question [whether UK adverse possession law violated Article 1 of Protocol No. 1 (right to property) ].

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?

Saji Koduvath, Advocate, Kottayam.

Read also:

Is Registration of a Deed, Notice to Government?

No.

The law does not contemplate that the mere registration of a document constitutes notice to, or acknowledgement by, the Government of the rights asserted therein. It is for the following reasons:

  • It is a trite law that the registering officer is not permitted to inquire into the validity of the deed.
  • The Sub Registrar cannot refuse registration on the ground of No Title.
  • Sub-Registrar registers the document purely in a ministerial and administrative capacity.

The doctrinal support (for registration of a document does not constitutes notice to the Government) can be derived from the following decisions:

  • Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J., Madras High Court): Section 3, Explanation I of the Transfer of Property Act, 1882, lays down – registration is only a constructive notice to the person who has subsequently acquired such property.
  • Satya Pal Anand v. State of MP, AIR 2016 SC 4995; 2016-10 SCC 767: The function of the Registering Officer is purely administrative and not quasi-judicial.
  • K. Gopi v. The Sub-Registrar our Apex Court (Neutral Citation: 2025 INSC 462: Abhay S Oka and Ujjal Bhuyan, JJ.; 7. 4. 2025); Nilambur Rubber Company Ltd. v. State of Kerala, 2024-4 KLT 642 (C. Jayachandran, J.): The registering officer cannot refuse to register a document on the premise that the executant has ‘no ownership’.

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

  • Registration is a statutory function. It is strictly governed by the provisions of the enactment and the rules framed thereunder.
  • The Sub-Registrar has no discretion beyond what is expressly conferred by statute.
  • He exercises no adjudicatory power.
  • The Sub-Registrar performs the act of registration in a purely ministerial and administrative capacity.
  • Sub-Registrar does not represent “the Government” for purposes of receiving legal notice.
  • It cannot be equated with service of notice on the State. Sub-Registrar does not receive any notice on behalf of the Government.
  • Neither the Act nor the Rules contemplate or confer any such duty or authority on the Sub Registrar.
  • As registration is a pure ministerial act for he has no discretion, he does not make any adjudication.
  • It is not a quasi-judicial function, either.
  • Registration of the documents does not vouch for the title.

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. (Arabia Bibi v. Sarbunnisa: 2011, Madras)

Registration of a deed does not work against true owner in a case on ‘Adverse Possession’ (if he has no notice of the registration of the deed ).

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)

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

In Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J., Madras High Court), 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.

Registration of Sale Deed Can’t be Refused for “No Ownership“

In Nilambur Rubber Company Ltd. v. State of Kerala, 2024-4 KLT 642 (C. Jayachandran, J.), it is held that the registration of a sale deed cannot be refused, on the premise that the executant has ‘no ownership’. The court relied on the following decisions:

  • i) Noble John v. State of Kerala [2010 (3) KLT 941].
  • ii) Divakaran v. State of Kerala and Others [2016 (5) KHC 49].
  • iii) Santhosh Antonio S.Netto v. Joshy Thomas and Others [2020 (3) KHC 278 (DB)].

The Court held as under:

  • “It goes without saying that the registration of the documents does not vouch the title in respect of the property being conveyed to the purchaser. Nor does the Sub Registrar, by his official act of registration, expressly or impliedly represents the conveyance of a valid title unto the purchaser. It is for the purchaser to satisfy the availability of a valid title of the property, which is sought to be purchased. Even assuming for the sake of argument that the petitioner company had only possessory rights, it cannot be held that such rights cannot be transferred. Nor could the registration of a sale deed be refused, on the premise that the executant has no ownership, but only possession over the property conveyed.”
  • “The incompetence of the executant should be of a fundamental nature, which goes to the root of the matter and should be writ large, manifested from the face of the record/document. The reasons in Ext.P3 are, as already referred above, based on legal premises, especially within the contours of the provisions of the Kerala Land Reforms Act and its legal consequences. Needless to say that the Sub Registrar is not a competent person to conclude and decide such issues and to refuse registration on such basis.” ….
  • “Resultantly, these Writ Petitions are allowed, and there will be a direction to the 4th respondent/Sub Registrar to register the sale deeds, produced as Ext.P2 in these Writ Petitions, provided the same answers other requirements under the Registration Act and the Stamp Act.”

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
  • 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.

Section 3 of the Transfer of Property Act, 1882 (Explanation I)

Registration is does not amount to notice to the public at large

  • It 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.

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

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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: No ‘Declaration’ Required

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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