Understanding Adverse Possession in Law

audible to you all of you perfect it's audible now today our subject is overview of adverse possession dear friends after this corona virus lockdown i started lectures on youtube primarily for the law students and later as required by the lawyers for them also i have given the link to mr vikas all of you can get the same from him i have already done 82 episodes on cpc and now 70 episodes on limitation act limitation act will be over by another seven or eight episodes and our subject of today you will get in episodes 58 to 70 and thereafter till end for the purpose of getting an idea as to what is a dualist possession and ouster etc etc all the professions have been discussed in detail in those episodes and all the judicial pronouncements important judicial pronouncements have also been provided with name and citation cross citation etc and this subject is connected with section 15 4 and article 134 of the limitation act as well in a in a way in a way and you will get an insight if you watch episodes 36 37 38 and 39 of the limitation act so 58 to 70 and thereafter to end for the last three days i could not upload any video because of something wrong with the youtube so i am sitting idle and with respect to 15.4 and article 134 you can see in episodes 36 37 38 and 39 if you are interested you can subscribe so that you will get notifications everything absolutely free now we'll come to the subject the while dealing with this adverse possession. The relevant provisions of law, you will not get the heading adverse possession anywhere in the limitation act. It is an English principle, common law principle. But the relevant provisions touching upon this subject are, please note section 27 of the limitation. article 65 and while dealing with article 134 and read with section 27 you have to also see the provisions of order 21 rule 95 96 of cpc and also section 65 of cpc if you are interested in going through that also Otherwise, Section 27 and Article 65 and the well-settled principles on which the subject is based, all those things are allowed. There are ever so many decisions on a dualist position. There was almost all the principles are well settled over a jury, but there are certain areas where we go on changing. Now what is adverse possession? What are the principles? Adverse possession, you can see the Latin maxim, nec vi, nec clam, nec precario. That is, the possession required must be adequate. in continuity at the next The possession must be open, continuous, notorious and without any attempt at concealment. And the other principles are, it is commenced in wrong and it is aimed at right. Unlike other rights, this is not a right unless it virtues. This is commenced in wrong. How to undo its possession? You are the owner of the property. I trespass upon your property, house to you, and I keep exclusive possession without allowing you to take income or profits or without allowing you to enter into the property. So my act is wrongful. But if you do not take any action for the required number of years, After the adverse possession has commenced, that is 12 years, under article 65 of the limitation, then my right becomes absolute. How and why? Normally the principle of limitation is that the limitation only bars the remedy and not the right. Limitation only bars the remedy and not the right. There is an exception to that rule. that is section 27 of the limitation at the determination of the period 27 provides at the determination of the period hereby limited for finding a soup for possession they right itself will get extinguished that is the meaning of it i will get i will read the exact section 27 at the determination of yes 27 and 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. This is not the law with respect to other areas. I will give an example. You borrowed money from me, say rupees 1 lakh, and executed a promissory note or some other adoption. What is the period of limitation for filing a suit against you? Three years. When does cause of action arise? The date of promissory. Suppose I do not file the suit within three years. What will happen? I cannot have any remedy against you by filing a suit to recover that amount. Does my right lose? No. Suppose I come into possession of your money, I can appropriate towards that debt. An agreement can be had between the parties to pay part that is good under Section 25 of the contract. Or suppose there is a bank, you owe a loan, you avail a loan from the bank, period is over, bank omitted to file this. But you have got fixed deposits in the bank, it matures. And on maturity of the fixed deposits, They can adjust that amount towards this loan because the right is not extinguished. The right to receive that money is not extinguished. The debt is not extinguished. Only the remedy is found. But in the example which I gave first, trespass upon immoral property, if that period is over, nothing can be done because the right gets extinguished. So, I trespass upon your property, you do not do anything for a period of 12 years. Then what will happen? Your right gets extinguished. And in that process, I prescribe title by adverse position, I become the owner. There must be an order for immoral property. Unlike the other rights which are available to a person, right with respect to immoral property is different. Immobile property has several incidents in connection with its possession. Say I have to pay revenue, the owner has to pay revenue, the owner has to pay other taxes and all other things which are necessary to be paid to the government. There must be, there will be a register in the revenue office. Various states, various names will be there and mutation can be affected if a transfer is made. so that the revenue records will show who is the owner of the property so even if adverse possession that adverse possession is perfect and a decree is there or a some decision of some authority is there mutation even can be changed there is nothing wrong in it but that is not the case with other rights other rights the right will not get extinguished only the remedy will be gone so this is an exception now section 27 we have seen that at the determination of the period hereby limited for finding a suitable possession. The right to property itself will get extinguished. Now which is the article which is relevant for the purpose of deciding this? That is article 65. Article 65. Without the explanation, I will read article 65 for possession of immol property or any interest therein based on title. 12 years is the period of limitation that period commences from when the possession of the defendant becomes adverse to the claim. When the possession of the defendant becomes adverse to the claim. Now for the beginners or the law students. Please forgive me, lawyers forgive for explaining. What is the Limitation Act? Limitation Act contains 32 sections, 32 repeal. And articles 1 to 137. Articles are contained in the schedule. The articles, there are three columns. first column description of the soup, second column period of limitation and third column time from which the period begins to run. It is based on this the period of limitation is calculated comes to that. So, first we have to see what is in what is the soup, then we have to see what is the period of time begins to run when. Then the period has to be computed and the suit has to be filed before expiry of the period of limitation. And dear friends, what is the speciality? Suppose one day is, today is the last date. Today I could not file the suit. I file it tomorrow. What will happen? Can the court condone? The court has no power to condone the delay in filing the suit. Why? Because Section 5 of the limitation, which speaks of extension of the period of limitation, says about only appeals and applications other than an application under Order 21 of the Code of Suits procedure. Therefore, suits are beyond Section 5. For filing a suit, the court has no power to condone delay. For filing an appeal, Say even if it is one year, two years, three years, five years, the court has power to condone delay provided there are sufficient reasons for condoning. But for suits and execution petitions, the court has no power. So it has to be done. It has to be done within the period of ten days. Court has no power. Court has no power to condone delay. Yes, that is the important aspect to be noticed. No power at all to condone delay in writing the suit. Code does not have that power. So that young lawyers, what you have to see is that you have to file the suit on or before the expiry of the period. You must be able to compute the period of time. And then there are three categories of... cases coming under the limitation appeals suits appeals and applications these are the three categories of cases coming under the limitation suits appeals and applications and various sections speaking of extension of time exclusion of time Adding of certain time, limitation does not begin to run at all. Fresh period of limitation, no period of limitation. These are all the various aspects, though only few sections are there, up to section 25, all these things are arranged. But it contains so many things and therefore it is necessary to have a deeper study. of the limitation act and we have to understand the principles behind the limitation once you understand and assimilate the principles there is no difficulty particular problem we can solve with the help of decisions search engines commentaries and all those things all those things we you cannot remember nobody can it is very difficult Even if you ask any question with a senior lawyer of the supreme court, he may not be able to answer without reference. That is all right. But there are certain broad principles which you must always know and you must be able to express it whenever it is necessary. Apply it whenever it is necessary when a client meets you and asks certain doubts. or when a case is being drafted or a case is being argued. Therefore, it is not sufficient, particularly with the limitation act, to study it when the case comes or to study it just before arguments. Some of the cases that may be seen. Last I remember a case, two or three cases, which was interested by another lawyer to me. A suit was filed against a policeman for compensation for illegal arrest and detention, registering cases and arresting him. And a suit was filed against a policeman. We had to defend the policeman. The suit was filed within one year. One year is a period of limitation provided in the Limitation Act. But he has done it in the discharge of his official duty that is covered by the Kerala Police Act. Delhi Police Establishments Act and other police act also may be having similar provision. There the period of limitation is six months. So the suit was hopelessly barred. That was not raised. Even if it is not raised there is no harm. You can argue because section 3 of the limitation act says that the court shall dismiss a suit, appeal or application which is tied bar even though the respond defendant or respondent has not taken up such a defense but on the facts admitted or proved it must be clear to the court that the suit is one the court cannot make a roving inquiry without reducing evidence without arguing anything without taking a plea about several things which are not on record or not brought on record or brought in evidence so If looking at the plane itself, so in the instance which I gave the policeman, incident occurred so and so date. He is a policeman. He made excesses. And I suffered injury or damage. And that compensation is claimed. It is clear when do you file the suit, particular date. That is beyond six months. Bought by me. So at the end of the trial. Say I was asked to defend, I raised this point and the other side withdrew the suit and went away, with the send that prayed that see he may not be halted with course. So that the limitation is a very dangerous thing. So you must know the principles, you must know have a broad idea about the limitation and apply it whenever necessary the finer aspects of it. and the decisions touching upon the same, all we can find out. Of course, we have to understand, for example, there is a lot of change made, reset. And there are two Supreme Court, two or three Supreme Court judgments which took the view that a person who has perfected title for adverse position cannot file a suit for a declaration. He can only use it as a shield and not as a sword. just like section 53a of the transfer of property act but perform say for example we are imported into a suit for recovery of possession, a suit based on title, declaration suit filed by a person who has perfected title by adverse possession. That was the view. That question was referred to a larger bench before the Supreme Court and in this Grewal's case, Justice Arun Mishra, three-judge bench said that even a person who has perfected title by adverse possession can file a suit for declaration of on the title and possession. There is nothing wrong in it. A very detailed judgment. And if you read that judgment, most of the questions on the Limitation Act, on the question of undue exposition, you will get a clear idea as to what. I will give in this webinar, I am not giving much of the decisions. In the episodes which I refer to, you will get almost all the relevant decisions. Therefore, see those episodes. I am not referring to much of the judgments. of the supreme court or of the high courts in this webinar i have just said say the principles which you have to bear in mind but this judgment i will say i will give you the citation because because that is necessary for you if you read that you will get almost all that is all the principles on adverse possession it's a very detailed judgment so i will give you the citation Graywald, in the course of time, I will give you, yes, 2000, AER 2019 Supreme Court, 3827, 3827, and SEC decision. 2019 8 SEC 729 name of the case Ravinder Kaur Greval and others versus Manjit Kaur and others so if you read that judgment full you will get almost all the principles of our doers because it is so vast a decision touching upon almost all the points now what is neck b neck clamp neck picker that is adequate the possession must be adequate in continuity and in extent it is also provided the principles provide that the The possession must be open, continuous, without any interruption, without any attempted concealment, and notorious and continuous. These are the ingredients. All these things are to be proved by the person who claims and does possession. Burden of proof is on him. Then, certain other principles. Open, without any attempted concealment. However, it is not necessary that the person, the owner should be put to specific knowledge of your possessing intelligence. Suppose I am the owner, you trespass upon my property. It is open, not attempted concealment, continuous, notorious. Everybody knows. You need not tell me. that you are possessing it adversely. It is not necessary because it is manifest. It is clear to the whole world. Therefore, it is not necessary. There is an exception to that principle that is as between co-owners. I will deal with it separately. Then possession must be open, actual, notorious, exclusive and continuous and continued for the required time. Mere sporadic acts of possession are not sufficient. It must be continuous, open, sporadic acts. You are having a coconut garden. When you are not there, suppose you have got out, stealthily I enter into your property, pluck some coconuts and go away. I am not possessing the property. I am not cultivating. I am not showing to the whole world that I am possessing. That is not adverse possession. that is only a secret animus which i have in mind that is not open and that will not constitute adversities. Depends on the intention of the occupant. That is what is called animus possidendi. Intention to possess adversities. That consists of actual possession with the intent to hold the same adversely to the real owner. Then what is possession? That is dominion over the property. Control over the property. Consciousness of the mind having dominion. and it is not mere occupation and it need not always be actual physical possession. I will give an example. I am the owner of a property. In that property there are several buildings, several shop rooms. I have let out the shop rooms to tenants. Say for example there are ten tenants in the property, in the building. and the whole land is occupied by the building. There is no cultivation, nothing. And I am receiving rent as owner of the property. You started asserting your rights. You told the tenants that you are the real owner. Convince them. And openly, you started collecting rent from them. And they are paying the rent to you. that state of affairs continued for the required 12 years, my right will get extinct. So adverse possession can be, need not always be actual physical possession. Constructive possession is also sufficient. Mere continuance of possession for 12 years or more is not sufficient. The other ingredients must be there. Mere continuance of 12 years passing of two or three is not enough. Permissive possession does not constitute a dualist possession. I permit you to possess. You come into possession by an agreement. We enter into an agreement for sale. I am the owner of the property. I agree to sell the property. You pay an advance. You are put in possession of the property. That possession is not never a dualist. So long as the agreement is enforced and so long as the relationship between us is in force and unless you shed you abandon the character of your possession as that of a purchaser and who is put in possession you cannot start unilaterally you cannot start a dual's possession when having a secret hostile animus to grab the problem that is not so if you are claiming under a color of title a subsidiary right or a derivative right you cannot claim adverse position. If it is referable to a valid title, it is never adverse position, never. Now, what was the position before 1963 limitation and what is the position now? We know that there was a limitation act. 1908 that was repealed and a new act this is a new act, adjective law, procedural law, it is it contains everything and as supreme court held that it is exclusive, exhaustive, sorry exhaustive, invitation act is exhaustive, you cannot add anything and what is the principle that no equities. Once a period of limitation is over and it is very clear and there cannot be any other equitable considerations to save limitation. But if two interpretations are possible, the interpretation which is in favor of the litigant should be answered. I am sorry, I am taking just a medicine of an Ayurvedic one. Yes. Then under the 1908 act on this subject what were the articles? Here you have got article 64 and 65. First of all we have to see what are article 64 and 65. 64 you have to make a distinction between 64 and 65. 64 Speaks for Possession of Immobile Property Based on Previous Possession and not on title when the plaintiff while in possession of the property has been dispossessed. So, what are the ingredients? One, the plaintiff was in possession of the property, he was dispossessed and the suit is based on previous possession and not on title. So, it is based on possession and dispossession and not on title. period of limitation is 12 years. It starts date of disposal. I will give an example. I am not the title holder. I am a trespasser or I say got possession of the property somehow. But I am in settled possession. I continued in possession for long. It is not I am not claiming adverse possession as well but I have a peaceful possession. While so, You trespassed upon the property and ousted me. What is your right? You also do not have it. You do not have title. So what will happen? You oust me, the person who is in possession. And I can file a suit based on my previous possession and the custom and the point of disposition. It can be filed within 12 years for the date of disposition. then what is your defense? You can have a defense that I was not in possession, you were in possession throughout etc. You can say that you are the title holder. If you are the title holder, suit for possession based on previous possession under article 64 will not lie. So this possession, previous possession is good as against everybody in the world except the true author. So, as a person in possession, if somebody dispossesses me, I can file a suit against them for possession within 12 years from the date of dispossession provided the defendant, you are not the true owner. I cannot file a suit against the true owner under Article 64. This is the basic principle. Next is Article 65. For possession of immoral property based on title, immoral property or an interest therein based on title, it is not on possession. What is the period? 12 years. It starts when the possession of the defendant becomes adverse to the plaintiff. That is the difference between Article 64 and 65. And what was the position under the 1908 Act? The relevant articles, articles 136, 137, 138, 140, 141, 142, 144, etc. under the 1908. What was the position then? I will give an example. I am the owner. You are a stranger. You have no right. You trespassed upon the property and ousted me. I am speaking of 1908 position. I can file a suit. under article 144 which corresponds to article 65 of the present act is based on title but what i had to prove under the 1908 act was that i was in possession within 12 years i had to prove that then only my suit will succeed See the difference? Under the 1908 Act, if my property is trespassed upon by you and I file a suit against you on the basis of title for recovery of possession, I had to prove that the dispossession took place within 12 years. In other words, that I was in possession within 12 years. What is the position under Article 65 of the present Act? I need only prove my title. If my title is either admitted or proved, then the whole burden is on the defendant to do so. I need not prove anything. I need not prove dispossession also. Dispossession is not a criterion under Article 65. It is a criterion only under Article 64, not under Article 65. So in a suit under Article 65, the plaintiff need only prove his title. He says that while in possession, while he was having title and possession, he was dispossessed by the defendant. He did not prove the date. He did not show that he was in possession within a period of 12 years. And the burden of proof is on the defendant to show that his possession was a loose. Then the court will ask a question. When did you start possession and do this? You have to prove the ingredients of a loose. So the whole burden of proof is on the defendant. Under the 1908 Act, it was noticed by the lawmakers and the local nation that very many suits on title for recovery of possession by the title holders were being dismissed on the short ground that the plaintiff failed to prove that he was in possession within 12 years. The court not looking into the question of title, the court does not... Look, need not look into the question of undue possession and the ingredients and all those things. No, on the short question that the plaintiff failed to prove possession within 12 years, suits were being dismissed on that short crowd. And the parties were put to great difficulty. Owners were put to great difficulty. There are certain things where it is very difficult to prove. There is a desert land. There is a submerged, water submerged land. There are lands just like where acts of possession are very difficult to be manifested, very difficult to be proved. There are so many such situations. There the title is important. So, under the 1963 Act, that difficulty which the litigants faced to prove possession within 12 years has been done away with under the 1963 Act. is only necessary to prove that he has died. Now, Article 65 has three explanations. Explanations A, B and C. A speaks of a reversioner, remainder man, etc. B, where a suit is by a Hindu or Muslim entitled to possession of property on the death of the Hindu or Muslim lady. Then the 3, where the suit is by a purchaser at a sale in execution of the lady. When the judgmenter was out of possession at the date of sale. That has to be read along with Article 134. That is a very difficult question. So, I will recommend to watch those episodes which I said which deals with Article 15, with Section 15.4 and Article 134 of the Limitation Act and see all the decisions of the court. Now, please note one thing. Explanation A to Article 65. That was similar to Article 140 of the 1908 Act. Explanation B was similar as Article 141 of the Limitation Act 1908 Act. And Explanation C corresponded to Article 137 of the Limitation Act 1908 Act. Now, Adverse possession against the co-owners. That is a very very important. Suppose a property is inherited by 10 children of a common ancestor. I am entitled to a share, you are entitled to a share, we have got other brothers and sisters totaling 10 number. So I am entitled to a one tenth share. we are all employed elsewhere some in gulf countries some abroad germany italy america england like that some in bombay calcutta and other places only one brother is looking after the property at the end he is looking after the property he is cultivating he is taking the income and normally there will be no sharing that is the peculiarity of Thank you. And that brother continued for several years because we are all working elsewhere. We are not interested in getting this particular share or other thing. Worst extent of properties. He was not giving. He is looking after. Occasionally, we go during vacation, stay with the brother, enjoy and see that the brother is looking after the property well. And after several years, this brother either sells a portion. as if he is his own or index strangers or does not permit you to enjoy the property to occupy the house etc then you understand that there is something wrong you find a suit for protection your brother who was in the native place says that he has perfected tightly by a tourist position father died 25 years ago From that date onwards, I am in possession. Undisputed. All are employed elsewhere. I was the only person who was in the place. So my possession is clear. I paid the revenue. Brother says that he was in possession all throughout. Nobody can dispute it. He was in possession. Whether that possession will become a duals. No, because his position is our position also. He is in the position of a constructive trustee. He is looking after the property for the benefit of the whole lot of corners. He cannot have any special right. He can have that adverse position, comments adverse position, only if he proves ouster. What is ouster? Ouster is denying the rights of other corners. Practically puts them out. Deny everything. And that state of affairs continues for 12 years. Then it is called ouster and adduce possession. So even the other corners right can be barred under section 27. that will be destroyed under section 27 and the person who is in possession can claim that he has perfected title by towards position very difficult to do normally no corners claim will be granted by the court because corners position is always that of a corner and that is on that is on behalf of all other forms so in joint families in other say co-ownership properties all these questions arise occasion when a suit is filed when the relationship become strained all these contentions will be put so in a suit for possession where the person who wants to put forward a claim of a dualist position he has to prove that when did he start possession and diversity he has to prove the ingredients of a dualist position And if he is a co-owner, he has also to prove that he has ousted the other co-owners. He has to prove ouster house. So these are the ingrid. Where continence of possession for the required number of 12 years is not enough. I will give an example. It is a decided case. 84 Supreme Court or so. Say a person grants a license to another man. So A grants a license to B. Puts B in possession of the property. So B is a licensee. A is the licensor. A terminated the license. But B, no suit was filed against B for possession. That state of affairs continued and continued for more than 12 years. Thereafter, a suit is filed for possession. The defendant, B, says he has perfected title by a dual possession. Court said no. How did you come into possession? has a licensee. True that license was terminated but your possession is always referable to that license unless you forgo that character, you shed that character, you abandon that character and start possession and duality. Have you proved? Finished. So that if it is referable to a valid contract or a derivative right or a subsidiary right then no adverse position unless some other ingredients are also necessary to be proved in the case of a license or licensee in spite of termination of license licensor did not file a suit that the licensee cannot claim adverse to claim adverse position only if he proves that on termination of license he has shed his character he has a mind that he is character or as a licensee and he starts possession adversely to the real owner to his knowledge and all the ingredients of adverse possession are to be proved by him then it is all. So mere continuance of 12 years possession is not enough then Hindu widow what was the position? that touches upon the prasad hindu law also various sets of laws are there hindu law midakshara in the south daya bhaga and bhagal certain other things in other states i do not know what are all things but joint families are all almost all over again So far as Mithakshina is concerned, that is Mithakshina is in several parts of India, that Mithakshina law is being followed. In our state, in Kerala, there are other sets of laws, also Anubhav Gayan law, where through a female the rights go. That is the most advanced of all laws, all inheritance. See, in a family partition, sometimes the sister gets more than 20-25 shares, whereas the brother gets only one share. I can demonstrate how. Because only females get right. Only through females, rights are derived. That is called Marumakka Tayapula. But that was abolished in 1975 in the state of Kerala. Therefore, that is not available. There in a family partition, sometimes the females get... to large number of shares whereas their brothers get only one the whole group of several members will get only so that is the best example of women empowerment that apart that loss that law is not available in kerala also nowadays now in midakshara the fundamental basic principle is that There is a joint family. What is a joint family? Living under the same roof, having the same common food, common residence, everything. That's the concept. All will be members, whether males or females will be members of the joint family. And among those members, let us take it that there are 100 total, 100 members, including males, females, children, everybody. Out of them, Only the males constitute the unit called co-parser. Only the males constitute the co-parser. Only they are entitled russians. The females were not entitled russians. A female member of the joint family before 1936 had only a right to receive maintenance out of the joint family funds. Suppose her husband passes away, she will not get the right of her husband. She will get only a right to maintenance. Maintenance she will get out of the joint family funds, joint family income. Nothing more than that. She will not get property. So for the first time in India, the Hindu Women's Right to Property Act 1936 was enacted. And by that act, a widow... Instead of in lieu of her maintenance she will get possession of the property in lieu of maintenance. She can possess that property, enjoy, take the income, enjoy it, but she has no power of alienation or encumbering it. And on her death, it will go to the reversionals, not to her children, to the other co-personals, it will go. To the husband's brothers, it will go. They are called the reversionals. So the bird is a widow. widow's right before 1936 only a right to receive maintenance after 1936 and before 1956 a right to receive maintenance plus possession of immoral property in lieu of pain but no absolute but that right matured into a full right under section 40 of the hindu society so after 1956 a person who was in possession a widow who was in possession of the immol property in lieu of maintenance was entitled to perfect her height and by saying maturing into the full right and it was converted to the full right under section 14 indefeasible right under section 14 of the intercession that changes so several changes were brought a video available yes so that is reversion so we will see where the suit is by a remainder man a reversion other than a landlord or a device the possession of the defendant shall be deemed to become adverse only when the estate of the remainder man reversion or device as the case may be false. So only on the widow's death the possession of somebody becomes a deuce. I will give an example. X was the husband. He was a member of a joint family. He died. His widow is the Y. Y was allotted certain properties in lieu of marriage. she continued in possession while so a person trespassed upon her on the property and started possession i am saying about before 1956 started possession possession continued for more than 12 years then the widow dies it goes to the reversion the reversioner claims the land then the stranger Why he says, no, no, no, I am in possession for more than 25 years. That possession will not count for adverse possession because only after the death of the widow, his right starts. That possession referable to an adverse possession can be only from that. That is explanation A to B. See that is now that litigation such litigations are very rare so that is a position of reverse alienation by co-person. Now why this Hindu widows right? Now what is the position? In 2005 Hindu succession act was amended and now the female member is also a co-person in joint families. Otherwise under the pristine Hindu law The co-personary consisted only of males, not females. Females were never considered as a co-person. She had no right as a co-person. And what is the benefit of being a co-person? A male member gets right by birth. The moment a son is born, he will have a share in the joint property. So far as female is concerned, no such thing. 56 changes were brought. Certain states made laws. Tamil Nadu, Andhra Pradesh and other states made the females also as co-parsons. How was it possible when the central law was there? Because it is a concurrent subject. And therefore, the states were entitled to make laws. Now in 2005, the Hindu sexual act was amended and if a joint family is there, The female is also a member of the co-person of the... and female will also get a right by birth. Therefore that problem is not there. Then alienation by a co-persona. What was the right of a co-persona? To have possession and to have a share till partition. He has no right to alienate. Alienate he has got right but alienate will not get joint possession. Alienate he has to file a suit for partition. So he cannot claim that he is in adverse position. So that position also you have to see just for the sake of possession of a mortgagee. Possession of a mortgagee. What is the possession of a mortgagee? I am the owner. I receive money from you as loan. what is the security for the load i give my immol property as mortgage to you executes the document so you are i am the mongager you are the mortgage you are put in possession of the property that is called processory mortgage and what is my right i will have a right of redemption of mortgage and recovery process various conditions are there how to discharge that load come on principal and interest are to be paid and various stipulations can be made in the document of mortgage you are taking the income that can be adjusted towards the interest or can be adjusted towards the interest as well as principal both or either that is according to the terms and conditions on which we agree so long as you continue as a mortgagee certain mortgages it can continue The period of limitation is 30 years and that 30 years will commence under certain conditions. Otherwise it will go on and on. The law does not compel a person to file a suit as between parties. The law does not contemplate a suit to be filed for every cause of action. Parties may agree on anything. There is nothing wrong even bond debt can be made good by agreement of party. So long as the agreement is not unlawful, so long as it is not against the public policy or any law, all such agreements are valid. And the policy of law is not to promote litigation but to reduce litigation. Therefore, the mortgagee continues. And the event happened where I get a right to file a suit on the basis of mortgage for redemption of mortgage against you. and you say that you have perfected title by adverse position. What is the nature of your possession? The nature of your possession is that of a mortgagee that is referable to a varied contract. That relationship continues. So long as that relationship continues, you cannot have perfected title by adverse position. Adverse possession and possession of a mortgagee will not go together. So long as you are a mortgagee, Unless you abandon that character as a mortgagee to my knowledge and to the whole world and you start open continuous without interruption possession for the required number of 12 years then only your possession will be undue on other ones. Possession of a lessee also same thing possession of a lessee there is a lease. Lessee is having a derivative right lesser right. that is the owner's right under owner he is having a right his possession is referable to the lease his possession is legal so long as he continues as a lessee he cannot prescribe title by adverse possession against the lesser unless he proves that he has terminated the even after termination of the lease or license position does not change that possession will not never become adverse less it is preferable to any other event preferable to l valid contract i said list but once a suit is fine see let us take i am the owner you are a trespasser you trespassed 10 years back and now five years back five years I waited for five years, I fired the suit after five years. The suit goes on and on, you drag it. You file an appeal, you file a revision, this and that. It took more than 12 years to dispose of the suit or appeal. Can you add on this period during the pendency of the suit? No. Once the suit is filed for recovery of possession based on title, your adverse possession is interrupted. You cannot add the period thereafter. No. It is not possible. Otherwise, the people will drag on the proceedings up to Supreme Court and say that 12 years is over. 12 years before the suit, not thereafter. Then appointment of a receiver in a suit, that will not interrupt possession. Suppose there is a suit for partition or something like that, a receiver is appointed. Once the adverse possession starts, appointment of a receiver is, it does not, that adverse possession is not interrupted by the appointment. Then declaratory decree, only a suit for declaration, no other consequential decree. I file a suit for declaration, get a decree that I have got title. You are in possession. Possession continued several years, thereafter more than 12 years with all the incidents of adverse possession. The mere fact that I have got a declaratory decree does not interrupt your adverse possession. that will not arrest your dualism. That tacking, there is a principle of tacking. What is that principle? I am the owner, let us take it. I am the owner. Let us take it, A is the owner of the power. A is the owner of the power. It was trespassed upon, A was ousted and it was... the property was trespassed upon by B. B continued with all the incidents of a doers possession for 5 years. Then B was dispossessed by C. C continued for 5 years with all the incidents of a doers possession. Then C was ousted by D. He continued for another 5 years. So total B, C and D. Total 15 years. A is the order. A file says OOTA gets stored. D claims that he has perfected IT by 2 years. What is the answer? No. While B was dispossessed by C, C was dispossessed by D. There is no derivation, right? It is a pure and simple trespass. So that five years will not constitute, there is no adding on the period. That is called tacky. Whereas same instance, A's property be trespassed upon. After five years, he transfers that. whatever incohete right, immature right to C. Then C continues for 5 years, he also transfers to D. He continued for 5 years, total 15 years. So this period can be added on. So that so far as A is concerned, he was dispossessed 15 years ago and all these 3 persons possessed it continuously one after the other. with a relationship between each other with a continuity in title and therefore they can tack on. Tacking on and all those things, principles you will get in Greval's Jettunak, Justice Aravind Veswara's stage. Then there are two decisions of the Supreme Court, Justice Delvire Bhattacharya. who says that this is a british principle british law we have inherited it there is no law this is all wrong immoral illegal you are conferring right on a person who does not have a right that a re-look is necessary with respect to this and therefore a change in law is It is against the human rights. There is another decision by Justice S.P. Sinha that affects the human rights. So, it is a recent trend is to frown upon adverse person. And in the matter of proof, the courts are very tough to accept the plea of adverse person. Particularly when the plea is so big, proof is clumsy or the materials are not there. then the courts will not accept the plea of a diverse position now one hour 15 minutes over so mr vigas can we have an interactive session now yes sir uh we can have we have the questions also on this i cited one judgment there are hundreds because that that total time that may not be now the people will get bored if I start deciding, if I take decision. This is by K Sankaraman. What is your opinion regarding the observation of the Honourable Supreme Court in Ravinder Gaur case that is 2019 Volume 8 SCC 729. No right can accrue by adverse position on lands reserved for public utility. What is your take on that? Question to me. Yes, sir. There are one or two paragraphs with respect to public property. And it is always said that it is always better that the court insists on further proofs and other aspects as well. But so far as public property is concerned, say government property, the period of limitation is 30. A recent trend is that the court will be very reluctant to accept the plea of adverse possession. so far as it is government land is concerned. Public property is not for the individuals to keep and claim for it. That is a recent trend. But of course in Justice Harit Beshele's judgment also there is reference to it in, I think, two paragraphs. Since that question was put, I will mention it which paragraph. 60 60 60 60 maybe yes there are one or two paragraphs at that point so that the courts will be very reluctant to accept the plea of Honduras possession into this government. Even otherwise, the period of limitation is 30 years for the government to file the suit for eviction. But under the 1908 act, the maximum period was 60 years. Now under the 1963 act, the maximum period has been reduced to 30 years. It was originally 60 years. Yes, Mr. Sankar Rao. I have seen you in some other webinars also, Policode webinar. You are there. You come to which place? Unmute him. Sir, I will unmute him. Shankaram belongs to Madras? Yes, sir. Shankaram. We are unmuting him. Sir, he will have to unmute himself. Mr. Shankaram, you will have to unmute yourself. Oh, yes. You have to unmute yourself, Mr. Sankaram. Yes, it is unmuted. Sir, not you. I am asking the lawyer. Yes, he has unmuted himself. I am from Tirunelveli. Can you hear me? Yes. Good evening, sir. I am from Tirunelveli. Tirunelveli. Oh, nice. Southern end of Tamil Nadu. So, in the recent judgment at Para Honorable judges, there is no adverse person advisable for the public utility basis. Yes. Your opinion regarding that, I suggest. Why opinion? You see, we have to follow that Supreme Court judgment. And it is very difficult to accept that the contention, so far as public property is concerned. The courts will be very reluctant to. That is a present tragedy. That's what we said. Yes, I respectfully agree with that Supreme Court. That just, Greval's judgment was really beneficial. It was the other two judgments by Justice KS Radhakrishnan and Justice Sikri. That Gurudwara Sahib's case, that created a lot of difficulty. What they said was, Justice Radhakshan from our place, the good gent, Justice Sikri also very good gent, but they took the view, they are entitled to take the view, they took the view that a person who has perfected title by a dualist position, who claims a dualist position, cannot file a suit for declaration. They can only defend it as a defendant, not as a plaintiff. It's not as a sword, but only as a shield. But that created a lot of difficulty. Now they can set up titillants. And now that judgment is very clear. Now the law is settled. The law is very, very clearly settled by Justice Anand Vispas. Yes. The three judgments. Yes. Thank you. Thank you so much. Thank you so much for your answer. Yes. So this is by, what if the property X on which A claims adverse position has been in dispute between D and F and the case is before the court, but A otherwise fulfills all the other requirements required for claiming adverse position? I don't think the question is not clear for me. So what if the property X on which A claims adverse position has been in dispute between D and F and the case? is before the court but a otherwise fulfills all of the requirements required for claiming adverse position will the fact that the property x is in dispute between d and f affect the right of the claim to uh right of a to claim adverse position yeah if a proves a nervous person he will perfect title what is the objection of a x and other other person does it dispute and how did they come into the party array who is the owner who filed the suit uh if the property acts on which he claims property belongs to whom who filed the suit that is not mentioned that is not mentioned uh so another question would be uh let's assume and original application before a tribunal etc is if there is a delay there has to be a provision of filing an application for condolation of delay but let's assume he doesn't file an application for condolation of delay along with that and the case is decided on minutes so if you want to challenge and appeal to a screen taken in the written statement to the effect that it is bar of a limitation so what will be the legal position on that section three of the limitation act six section three of the limitation i will read that since that question came subject to the provisions contained in sections 4 to 24 every suit instituted appeal preferred and application made after the prescribed period shall be dismissed Although limitation has not been set up as a defense. No, here the plea of defense had been taken, but not decided as such. We say our stand is to the effect that the matter either should be remanded back because before the tribunal he should move an application for seeking condolence of delay and then thereafter only the matter should be heard on merits. Yes. So it can be a ground can be taken to the appeal the Appellate Court if it finds even without the remanding it if there are grounds for condoning it can be condoned if condonation is possible under law it can be condoned but see it has to be borne in mind that this not taking the plea of adverse possession which we I said about section 3 applies only when it is clear on record So, a suit is filed based on a promissory note on 1-1-2015, 2015 is the date of the promissory note. What is the last date for filing the suit? 1-1-2018 is the last date. Suppose it is filed thereafter. Suit is promissory notice before court. Plaintiff's letter, date of promissory note is mentioned. Date of filing the suit is clear. Even if the defendant is ex parte, the defendant does not come to the court. Court is bound to dismiss the suit. On the other hand, same example, it is filed thereafter, after three years. But the plaintiff relies on an acknowledgement, acknowledgement of liability under Section 18. Therefore, a fresh period of limitation will start from running from the date when the acknowledgement is made. That has to be proved by him. And if no contention is raised on that, evidently, the court will have to consider only the plaintiffs. There will be no assistance from the defendant. So, there are instances where contentions are necessary and instances where there is no contention at all, the suit has to be dismissed on the ground of limitation. There is one more thing which I would like to mention. It is not the law that in every case the defendant should appear and answer the claim. Suppose he does not, he finds that the suit is absolutely not maintainable on the face of it. Either because it is barred by limitation or barred by any other law or it is against public policy or against any other settled law. He can believe that the court will do it, the court knows better than me. So even if I do not go to the court, the court will dismiss. And then the court does not dismiss it. He can file an appeal. Even if he is an ex-party defendant, he can file an appeal. So in this case, the example which was questioned, which was given, even though that contention is put forward but not considered, definitely an appeal is maintainable, the appellate court can... either decide it by itself or remand it if necessary but as against remand as so far as remand is concerned the court is very reluctant to make the remand now because the principles are well settled remand only if it is absolutely necessary there we have to say rule 23 23 a of order 41 these are the two instances where remand can be made And 25 says, 24 says that if evidence on record is sufficient, no remand is required. Even if it is not considered by the trial court, it can be considered by the appellate. But here, the question is not clear whether the evidence has been adduced or all the materials are on record. If all the materials are on record for the court to arrive at a correct conclusion, it is not necessary to remand it. not be remanded even if the trial court has not considered the appellate court can answer the appellate court has got all the powers of the trial all the powers of the trial the appellate court can under section 107 of the cpc can either decide it completely remanded dismiss it everything can be done and i remember that this rule 24 of order 41 which says that if evidence on record is sufficient the court shall not remand it shall decide it please check up mr sankar it is i do not have ctc here on the table order 41 rule 24 yes 24 23 23 a 24 23 and 23 are the remand so if the The question is Mr. Vikas whether the appellate court can we are pressing for a remand whether the appellate court can remand. Remand is a you see as a last resort. Order 41.23. No. Where evidence on record is sufficient court shall not remand. 24. 24. Yes. Order 41.24 where evidence on record is sufficient the appellate court may determine case finally. With evidence upon record is sufficient to enable the appellate court to pronounce the judgment, the appellate court may after resettlement as resettling the issues, if necessary, finally determine the suit notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than which the appellate court has proceeded. Yes, there is a judgment of five judges which is not seen in any logic. Not reported. In the 1970s, there is a decision by five judges that a remand should not be made for remand sake. But AER, SEC, no other law journal has cited it. And our Kerala Judicial Academy had a publication at that time that was called Judicial Vision. Judicial Vision had published it. And recently, in a judgment of the Kerala High Court, one judge pointed out this. And then later it was referred to in some other judgment of the, some other IER or some other decision. It is referred to. There is a constitution by the decision. And remand should not be made for the remand sake. And that is why, see, for example, remand should not be in order 14 rule 2 CPC. Order 14 rule 2 underwent a change in 1976. That is preliminary issue. Now. The present order 14 rule 2, the court can decide a case on a preliminary point if only on a pure question of law and if there is a question of jurisdiction. If these two conditions are satisfied, that question can be decided as a preliminary issue and not otherwise. But before 1976, the position was different. On every matter of the court, whether the trespass is true or what is the date of dispossession, all these things were the questions. And some question will be decided as a preliminary issue and the suit will be decided. Then appeal goes. The appellate court does not agree with the decision of the trial court. There is no other alternative but to remand. And the courts were fed up with these orders of remand and the necessity of making a remand. Therefore, it was thought that it is necessary to have... to contain this say wrong practice which is being followed and that is why order 14 rule 2 was amended by the parliament yes yeah mr because can i ask yes yes definitely yeah yeah good evening sir yeah sir let us say an employee was given a house by a company and the employee resigns and takes up employment in a different company and the company does not take action for adverse possession Okay, now, here, though the employee has come to possession by way of permission because of his employment, once he joins another company, can we not say that the time of limitation begins? And that is one. And can the company still claim that there was continuing permission even if they did not take action? Yes. I have another question I'll ask once we finish this. yeah go ahead sir go ahead see there are two things he was an employee of the company and as such he was limited a house so his possession was referable to his employment in the company company contents that even after he joined another company he was permitted to continue He was permitted to continue. So here, company's title is not disputed by the defendant. By the defendant. Defendant who claims adverse position. I suppose that the defendant claims adverse position. Yes. Yes. Yes. The company's paramount title is not disputed. It is also not disputed that he started possessing it as an employee of the company and as permitted by the company. And now the company's contention is that that relationship continued even thereafter and despite the fact that the employment in the company is not good. So it is for the defendant to prove that he has started possessing unduly after the employment has ceased. And it is a question of fact to be decided on the basis of the evidence. If you ask me on whom the burden of proof lies, I will say that it is on the defendant, the person who claims an adverse person to prove an SRE inquiry. The totality of the evidence will be looked into by the court and a decision on facts will have to be arrived at in the particular case. Yes. Okay. So just Mr. Vikas, a connected question I had, you asked, I think probably Justice. Yeah. So let's say in the same scenario, the property itself is in dispute, let's say between that company and some other party. So if there is a dispute and when the employee, no, I'll ignore that. Let us say there is a property X on which A claims adverse possession, but that property X itself is in dispute between D and F and it is before the court. Now let us say A otherwise fulfills all the requirements of adverse possession. Just because there is a dispute between D and F on the same property X, will the rights of A to claim adverse possession get affected? Normally, if the person who claims adverse possession, if he proves adverse possession for the required number of years. His right will be perfected and whoever is the owner of the property who has got the title to the property, that right will get extended. Simply because there is a dispute between two persons with respect to that, that will not destroy the right of the person who claims to do it. But there is, we have to say one more thing. There is a line of decisions which say that even if the person who makes the claim of adverse possession does not know who the owner is yeah still his possession as adverse possession is not destroyed he can have a diverse position that is a view in one of the decisions of the kerala that decision was overruled by a full bench there is a supreme court judgment which says i think it is by justice which says that if you do not know who the owner is, how can you have adverse position? So there are various decisions on the point. And now, going by the latest Supreme Court judgment on that point, so far as I can see, that the person who claims adverse position must be aware of the identity of the owner. And then only he can have hostile title against him. Suppose he believes the person who claims adverse possession believes that he is the owner or he does not know who the owner is. He cannot have adverse possession. It is the view which is available with reference to that Justice Passaic's case. So even if there is a dispute between two persons, suppose a suit is filed by A, we will take it that way. A suit is filed by A claiming that he has got ownership. Or the person in adverse position files a suit for declaration of title and for injunction against B and C. B is the title holder, then C claims right. There is a dispute between B and C. Doesn't matter. If A proves adverse position, he will get right. Whoever is the owner. But he does not know who is the owner. Suppose. He puts forward a claim for adverse possession and he must possess it against the true owner, namely X. And it is proved that X has no right at all. It is a real owner is Y. You did not put it to the knowledge of Y. Particularly when he is a co-owner, it is all right. It must be put to the specific knowledge that must be asked. These are all the principles on facts we have to apply. Yes. Thanks very much, Mr. Justice. Yeah, unmuting GlaxiM40. He wants to ask a question. We will request the participants that they should log in by the name. It becomes easy to unmute and disclose the name. GlaxiM40. So I can just read the question. Insult for declaration that the perfected title by adverse position and perpetual injunction. If it reveals that the plaintiff is in position, not adverse against owner, whether still he is entitled for injunction to protect his position till the owner follows due process of course of law to recover the position. Yes. I will answer without exactly answering the particular case. because that requires the statement of certain principles that you apply the principle to that case. See that is, I ask for intervention just that comes, yes. That article 64 of the limitation, it is a suit based on Previous possession. Article 65 based on title or any derivative or any other right with respect to it. What is the right of the person who claims adverse possession? Say A files, I file a suit against you. Saying that I was in possession, settled possession. I am not claiming any right over the property except possession. Over his honour, I am in possession for the last several years. But you the defendant ousted me, you are also in a right. Therefore please inject. the defendant if the court finds that i was in civil position the court will grant an injunction in my favor against the defendant provided the defendant is not the true that means a person in possession can get Relief under Article 64 against anybody in the world except the true one. Except the true one. Whereas under Article 65, his suit of title is filed by the owner. The defendant who claims adverse possession has to prove that he has to perfect a title. by a dualist possession. On perfecting that title by a dualist possession, section 27 applies. Right itself goes. That is why the owner's suit is being dismissed. Suppose an owner is dispossessed by a person. he can file a suit against him for recovery of possession and that person while in possession wrongful possession was attempted to be dispossessed by the true owner see i will give example very clear i am the true owner of the property while i was possessing as a true owner you a person having no right dispossessed me and you gained possession what is my right i can find a suit for recovery possession you either under article 64 or under article 65 does it matter but instead of resorting to that I forcibly trespassed upon the property and ousted you. You have no right, but you are in a wrongful position. What is your right? Still you have got a right. Your right is to file a suit under Section 6 of this specific bill. Within six months, you can file a suit and get back possession. Suppose the court finds that though I am the real owner, my act of high-handedness was there in ousting you and therefore the court granted a decree in your favor. Under section 6 of this specific decree was passed and you were directed to be put in position. Then what is my right? I can file a suit under article 65. nothing wrong thereafter but suppose that is one example i will give another example a property there is an order a is the owner b who is a stranger and who does not have a right This possesses A and then thereafter B continues in possession. While so, B was ousted by C. What is the right of B against C? B is not the owner. He was only having wrongful possession. But that possession was interrupted by another person who does not have a right. So B could file a suit under Article 64 against C. While B or C as the case may be was in possession. I forcibly dispossessed. both either or both of you p or c what is your b's or c's right only a suit under section 6 of the specific relief the person in wrongful possession does not have a right under section 64 article 64 to file a suit against a true owner he does not have a right under article 65 to buy the suit against the true owner because it is based on title Though Article 64 speaks of possession and dispossession, not title, but that possession can be protected against the whole world and a suit can be filed against any person in the world except the true. So a person in wrongful possession can file a suit, who was dispossessed can file a suit against the true owner only under Section 6 of this procedure. And even if that person gets a decree, that can be got over by filing a suit on title. Yes, I think I have made the position clear. Then apply to the facts of the case. Yes. Now it's around 6.15 and so we can call for the day and we will ask you to join on. Another day to give the insights. As usual, the issues which were explained by your good self, they were self-explicit. The questions raised and as usual, they were answered in a very elucidate manner. And I'm quite hopeful that those who have been watching us on the Facebook as we are live, as well as on this platform, would be actually be enlightened. and more so those who will be watching us on the youtube channel of beyond law clc wherein this not only this webinar but all the other webinars which have been uploaded can be seen so they can subscribe share and like that channel of beyond law clc for all the webinars which have been done so far and thank you sir as usual the insights given by you it was actually quite Engaging and enlightening session. Thank you all. I am not fully satisfied. Pardon, sir? I am not fully satisfied in the sense that I have only stated the principles with respect to undue disposition. It is not fully useful to you, the viewers. That will be useful only if all the inputs are provided for which at least 5 to 10 hours is required. which i have done in the youtube so what we can do is we will have another webinar another prospects which can be done not immediately that will not be over webinars it has got limited time so what i suggest is that if they are interested let them watch those episodes which i have mentioned so that it has been done very exhaustive yes All aspects you're dealt with. Another webinar means a person who disengages in other activities come and sit before the table and he cannot have more than one and a half hours to go. So on the other hand these episodes are less than 25 minutes, 30 minutes. One is over, next you can go out and then come back and see the next episode like that. So that there is interruption. Any time you can see. Yes. So I am thankful to Mr. Bigas and his team for providing me this opportunity for directing. Sir, people are asking about your YouTube channel. Just tell them the name. See that is I have given the link to you. www.justicektchankaran.com. I will see two apps also were developed. I'll just give it. Yes. So they will watch the YouTube channel. I know that Justice KT Sankrant. You type www.justicektsankrant.com. You will get it. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. that stroke CPC stroke LA. LA means limitation, separate. So that is in respect of the website. I am telling them the YouTube channel of Justice KT Sankaran. They can watch all your webinars which have been uploaded on the YouTube channel. Yes, everything. They can go to the YouTube channel or the and thank you to all the participants once again for joining us and tomorrow we are having a webinar. on the return of plaint and rejection of plaint by Mr. Srinath Sridharan, the famous lawyer from Chennai and the partner of HSEB Law Chambers. So do stay connected with us tomorrow at 4.30 on the webinar of rejection of plaint and return of plaint. Thank you, everyone. Thank you. And thank you, sir, once again. Thank you. Thank you. Namaste. Namaste. Namaste to all. Yes. Shankar Ramachandran, see you. I think I can leave. Because can I leave?

But the relevant provisions touching upon this subject are, please note section 27 of the limitation. article 65 and while dealing with article 134 and read with section 27 you have to also see the provisions of order 21 rule 95 96 of cpc and also section 65 of cpc if you are interested in going through that also Otherwise, Section 27 and Article 65 and the well-settled principles on which the subject is based, all those things are allowed. There are ever so many decisions on a dualist position.

There was almost all the principles are well settled over a jury, but there are certain areas where we go on changing. Now what is adverse possession? What are the principles?

Adverse possession, you can see the Latin maxim, nec vi, nec clam, nec precario. That is, the possession required must be adequate. in continuity at the next The possession must be open, continuous, notorious and without any attempt at concealment. And the other principles are, it is commenced in wrong and it is aimed at right. Unlike other rights, this is not a right unless it virtues.

This is commenced in wrong. How to undo its possession? You are the owner of the property. I trespass upon your property, house to you, and I keep exclusive possession without allowing you to take income or profits or without allowing you to enter into the property. So my act is wrongful.

But if you do not take any action for the required number of years, After the adverse possession has commenced, that is 12 years, under article 65 of the limitation, then my right becomes absolute. How and why? Normally the principle of limitation is that the limitation only bars the remedy and not the right.

Limitation only bars the remedy and not the right. There is an exception to that rule. that is section 27 of the limitation at the determination of the period 27 provides at the determination of the period hereby limited for finding a soup for possession they right itself will get extinguished that is the meaning of it i will get i will read the exact section 27 at the determination of yes 27 and 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.

This is not the law with respect to other areas. I will give an example. You borrowed money from me, say rupees 1 lakh, and executed a promissory note or some other adoption. What is the period of limitation for filing a suit against you? Three years.

When does cause of action arise? The date of promissory. Suppose I do not file the suit within three years.

What will happen? I cannot have any remedy against you by filing a suit to recover that amount. Does my right lose?

No. Suppose I come into possession of your money, I can appropriate towards that debt. An agreement can be had between the parties to pay part that is good under Section 25 of the contract. Or suppose there is a bank, you owe a loan, you avail a loan from the bank, period is over, bank omitted to file this.

But you have got fixed deposits in the bank, it matures. And on maturity of the fixed deposits, They can adjust that amount towards this loan because the right is not extinguished. The right to receive that money is not extinguished.

The debt is not extinguished. Only the remedy is found. But in the example which I gave first, trespass upon immoral property, if that period is over, nothing can be done because the right gets extinguished. So, I trespass upon your property, you do not do anything for a period of 12 years.

Then what will happen? Your right gets extinguished. And in that process, I prescribe title by adverse position, I become the owner.

There must be an order for immoral property. Unlike the other rights which are available to a person, right with respect to immoral property is different. Immobile property has several incidents in connection with its possession.

Say I have to pay revenue, the owner has to pay revenue, the owner has to pay other taxes and all other things which are necessary to be paid to the government. There must be, there will be a register in the revenue office. Various states, various names will be there and mutation can be affected if a transfer is made.

so that the revenue records will show who is the owner of the property so even if adverse possession that adverse possession is perfect and a decree is there or a some decision of some authority is there mutation even can be changed there is nothing wrong in it but that is not the case with other rights other rights the right will not get extinguished only the remedy will be gone so this is an exception now section 27 we have seen that at the determination of the period hereby limited for finding a suitable possession. The right to property itself will get extinguished. Now which is the article which is relevant for the purpose of deciding this?

That is article 65. Article 65. Without the explanation, I will read article 65 for possession of immol property or any interest therein based on title. 12 years is the period of limitation that period commences from when the possession of the defendant becomes adverse to the claim. When the possession of the defendant becomes adverse to the claim. Now for the beginners or the law students.

Please forgive me, lawyers forgive for explaining. What is the Limitation Act? Limitation Act contains 32 sections, 32 repeal. And articles 1 to 137. Articles are contained in the schedule.

The articles, there are three columns. first column description of the soup, second column period of limitation and third column time from which the period begins to run. It is based on this the period of limitation is calculated comes to that. So, first we have to see what is in what is the soup, then we have to see what is the period of time begins to run when. Then the period has to be computed and the suit has to be filed before expiry of the period of limitation.

And dear friends, what is the speciality? Suppose one day is, today is the last date. Today I could not file the suit.

I file it tomorrow. What will happen? Can the court condone?

The court has no power to condone the delay in filing the suit. Why? Because Section 5 of the limitation, which speaks of extension of the period of limitation, says about only appeals and applications other than an application under Order 21 of the Code of Suits procedure.

Therefore, suits are beyond Section 5. For filing a suit, the court has no power to condone delay. For filing an appeal, Say even if it is one year, two years, three years, five years, the court has power to condone delay provided there are sufficient reasons for condoning. But for suits and execution petitions, the court has no power. So it has to be done. It has to be done within the period of ten days.

Court has no power. Court has no power to condone delay. Yes, that is the important aspect to be noticed.

No power at all to condone delay in writing the suit. Code does not have that power. So that young lawyers, what you have to see is that you have to file the suit on or before the expiry of the period. You must be able to compute the period of time. And then there are three categories of...

cases coming under the limitation appeals suits appeals and applications these are the three categories of cases coming under the limitation suits appeals and applications and various sections speaking of extension of time exclusion of time Adding of certain time, limitation does not begin to run at all. Fresh period of limitation, no period of limitation. These are all the various aspects, though only few sections are there, up to section 25, all these things are arranged. But it contains so many things and therefore it is necessary to have a deeper study.

of the limitation act and we have to understand the principles behind the limitation once you understand and assimilate the principles there is no difficulty particular problem we can solve with the help of decisions search engines commentaries and all those things all those things we you cannot remember nobody can it is very difficult Even if you ask any question with a senior lawyer of the supreme court, he may not be able to answer without reference. That is all right. But there are certain broad principles which you must always know and you must be able to express it whenever it is necessary.

Apply it whenever it is necessary when a client meets you and asks certain doubts. or when a case is being drafted or a case is being argued. Therefore, it is not sufficient, particularly with the limitation act, to study it when the case comes or to study it just before arguments. Some of the cases that may be seen.

Last I remember a case, two or three cases, which was interested by another lawyer to me. A suit was filed against a policeman for compensation for illegal arrest and detention, registering cases and arresting him. And a suit was filed against a policeman.

We had to defend the policeman. The suit was filed within one year. One year is a period of limitation provided in the Limitation Act. But he has done it in the discharge of his official duty that is covered by the Kerala Police Act.

Delhi Police Establishments Act and other police act also may be having similar provision. There the period of limitation is six months. So the suit was hopelessly barred. That was not raised. Even if it is not raised there is no harm.

You can argue because section 3 of the limitation act says that the court shall dismiss a suit, appeal or application which is tied bar even though the respond defendant or respondent has not taken up such a defense but on the facts admitted or proved it must be clear to the court that the suit is one the court cannot make a roving inquiry without reducing evidence without arguing anything without taking a plea about several things which are not on record or not brought on record or brought in evidence so If looking at the plane itself, so in the instance which I gave the policeman, incident occurred so and so date. He is a policeman. He made excesses. And I suffered injury or damage. And that compensation is claimed.

It is clear when do you file the suit, particular date. That is beyond six months. Bought by me. So at the end of the trial.

Say I was asked to defend, I raised this point and the other side withdrew the suit and went away, with the send that prayed that see he may not be halted with course. So that the limitation is a very dangerous thing. So you must know the principles, you must know have a broad idea about the limitation and apply it whenever necessary the finer aspects of it.

and the decisions touching upon the same, all we can find out. Of course, we have to understand, for example, there is a lot of change made, reset. And there are two Supreme Court, two or three Supreme Court judgments which took the view that a person who has perfected title for adverse position cannot file a suit for a declaration.

He can only use it as a shield and not as a sword. just like section 53a of the transfer of property act but perform say for example we are imported into a suit for recovery of possession, a suit based on title, declaration suit filed by a person who has perfected title by adverse possession. That was the view.

That question was referred to a larger bench before the Supreme Court and in this Grewal's case, Justice Arun Mishra, three-judge bench said that even a person who has perfected title by adverse possession can file a suit for declaration of on the title and possession. There is nothing wrong in it. A very detailed judgment. And if you read that judgment, most of the questions on the Limitation Act, on the question of undue exposition, you will get a clear idea as to what. I will give in this webinar, I am not giving much of the decisions.

In the episodes which I refer to, you will get almost all the relevant decisions. Therefore, see those episodes. I am not referring to much of the judgments. of the supreme court or of the high courts in this webinar i have just said say the principles which you have to bear in mind but this judgment i will say i will give you the citation because because that is necessary for you if you read that you will get almost all that is all the principles on adverse possession it's a very detailed judgment so i will give you the citation Graywald, in the course of time, I will give you, yes, 2000, AER 2019 Supreme Court, 3827, 3827, and SEC decision. 2019 8 SEC 729 name of the case Ravinder Kaur Greval and others versus Manjit Kaur and others so if you read that judgment full you will get almost all the principles of our doers because it is so vast a decision touching upon almost all the points now what is neck b neck clamp neck picker that is adequate the possession must be adequate in continuity and in extent it is also provided the principles provide that the The possession must be open, continuous, without any interruption, without any attempted concealment, and notorious and continuous.

These are the ingredients. All these things are to be proved by the person who claims and does possession. Burden of proof is on him. Then, certain other principles. Open, without any attempted concealment.

However, it is not necessary that the person, the owner should be put to specific knowledge of your possessing intelligence. Suppose I am the owner, you trespass upon my property. It is open, not attempted concealment, continuous, notorious.

Everybody knows. You need not tell me. that you are possessing it adversely. It is not necessary because it is manifest.

It is clear to the whole world. Therefore, it is not necessary. There is an exception to that principle that is as between co-owners.

I will deal with it separately. Then possession must be open, actual, notorious, exclusive and continuous and continued for the required time. Mere sporadic acts of possession are not sufficient.

It must be continuous, open, sporadic acts. You are having a coconut garden. When you are not there, suppose you have got out, stealthily I enter into your property, pluck some coconuts and go away.

I am not possessing the property. I am not cultivating. I am not showing to the whole world that I am possessing.

That is not adverse possession. that is only a secret animus which i have in mind that is not open and that will not constitute adversities. Depends on the intention of the occupant.

That is what is called animus possidendi. Intention to possess adversities. That consists of actual possession with the intent to hold the same adversely to the real owner. Then what is possession?

That is dominion over the property. Control over the property. Consciousness of the mind having dominion. and it is not mere occupation and it need not always be actual physical possession.

I will give an example. I am the owner of a property. In that property there are several buildings, several shop rooms.

I have let out the shop rooms to tenants. Say for example there are ten tenants in the property, in the building. and the whole land is occupied by the building. There is no cultivation, nothing.

And I am receiving rent as owner of the property. You started asserting your rights. You told the tenants that you are the real owner.

Convince them. And openly, you started collecting rent from them. And they are paying the rent to you. that state of affairs continued for the required 12 years, my right will get extinct.

So adverse possession can be, need not always be actual physical possession. Constructive possession is also sufficient. Mere continuance of possession for 12 years or more is not sufficient. The other ingredients must be there.

Mere continuance of 12 years passing of two or three is not enough. Permissive possession does not constitute a dualist possession. I permit you to possess. You come into possession by an agreement.

We enter into an agreement for sale. I am the owner of the property. I agree to sell the property. You pay an advance. You are put in possession of the property.

That possession is not never a dualist. So long as the agreement is enforced and so long as the relationship between us is in force and unless you shed you abandon the character of your possession as that of a purchaser and who is put in possession you cannot start unilaterally you cannot start a dual's possession when having a secret hostile animus to grab the problem that is not so if you are claiming under a color of title a subsidiary right or a derivative right you cannot claim adverse position. If it is referable to a valid title, it is never adverse position, never.

Now, what was the position before 1963 limitation and what is the position now? We know that there was a limitation act. 1908 that was repealed and a new act this is a new act, adjective law, procedural law, it is it contains everything and as supreme court held that it is exclusive, exhaustive, sorry exhaustive, invitation act is exhaustive, you cannot add anything and what is the principle that no equities. Once a period of limitation is over and it is very clear and there cannot be any other equitable considerations to save limitation. But if two interpretations are possible, the interpretation which is in favor of the litigant should be answered.

I am sorry, I am taking just a medicine of an Ayurvedic one. Yes. Then under the 1908 act on this subject what were the articles? Here you have got article 64 and 65. First of all we have to see what are article 64 and 65. 64 you have to make a distinction between 64 and 65. 64 Speaks for Possession of Immobile Property Based on Previous Possession and not on title when the plaintiff while in possession of the property has been dispossessed. So, what are the ingredients?

One, the plaintiff was in possession of the property, he was dispossessed and the suit is based on previous possession and not on title. So, it is based on possession and dispossession and not on title. period of limitation is 12 years. It starts date of disposal.

I will give an example. I am not the title holder. I am a trespasser or I say got possession of the property somehow.

But I am in settled possession. I continued in possession for long. It is not I am not claiming adverse possession as well but I have a peaceful possession. While so, You trespassed upon the property and ousted me. What is your right?

You also do not have it. You do not have title. So what will happen? You oust me, the person who is in possession.

And I can file a suit based on my previous possession and the custom and the point of disposition. It can be filed within 12 years for the date of disposition. then what is your defense? You can have a defense that I was not in possession, you were in possession throughout etc. You can say that you are the title holder.

If you are the title holder, suit for possession based on previous possession under article 64 will not lie. So this possession, previous possession is good as against everybody in the world except the true author. So, as a person in possession, if somebody dispossesses me, I can file a suit against them for possession within 12 years from the date of dispossession provided the defendant, you are not the true owner. I cannot file a suit against the true owner under Article 64. This is the basic principle. Next is Article 65. For possession of immoral property based on title, immoral property or an interest therein based on title, it is not on possession.

What is the period? 12 years. It starts when the possession of the defendant becomes adverse to the plaintiff.

That is the difference between Article 64 and 65. And what was the position under the 1908 Act? The relevant articles, articles 136, 137, 138, 140, 141, 142, 144, etc. under the 1908. What was the position then? I will give an example.

I am the owner. You are a stranger. You have no right. You trespassed upon the property and ousted me. I am speaking of 1908 position.

I can file a suit. under article 144 which corresponds to article 65 of the present act is based on title but what i had to prove under the 1908 act was that i was in possession within 12 years i had to prove that then only my suit will succeed See the difference? Under the 1908 Act, if my property is trespassed upon by you and I file a suit against you on the basis of title for recovery of possession, I had to prove that the dispossession took place within 12 years.

In other words, that I was in possession within 12 years. What is the position under Article 65 of the present Act? I need only prove my title. If my title is either admitted or proved, then the whole burden is on the defendant to do so. I need not prove anything.

I need not prove dispossession also. Dispossession is not a criterion under Article 65. It is a criterion only under Article 64, not under Article 65. So in a suit under Article 65, the plaintiff need only prove his title. He says that while in possession, while he was having title and possession, he was dispossessed by the defendant. He did not prove the date. He did not show that he was in possession within a period of 12 years.

And the burden of proof is on the defendant to show that his possession was a loose. Then the court will ask a question. When did you start possession and do this?

You have to prove the ingredients of a loose. So the whole burden of proof is on the defendant. Under the 1908 Act, it was noticed by the lawmakers and the local nation that very many suits on title for recovery of possession by the title holders were being dismissed on the short ground that the plaintiff failed to prove that he was in possession within 12 years.

The court not looking into the question of title, the court does not... Look, need not look into the question of undue possession and the ingredients and all those things. No, on the short question that the plaintiff failed to prove possession within 12 years, suits were being dismissed on that short crowd. And the parties were put to great difficulty. Owners were put to great difficulty.

There are certain things where it is very difficult to prove. There is a desert land. There is a submerged, water submerged land. There are lands just like where acts of possession are very difficult to be manifested, very difficult to be proved.

There are so many such situations. There the title is important. So, under the 1963 Act, that difficulty which the litigants faced to prove possession within 12 years has been done away with under the 1963 Act.

is only necessary to prove that he has died. Now, Article 65 has three explanations. Explanations A, B and C.

A speaks of a reversioner, remainder man, etc. B, where a suit is by a Hindu or Muslim entitled to possession of property on the death of the Hindu or Muslim lady. Then the 3, where the suit is by a purchaser at a sale in execution of the lady.

When the judgmenter was out of possession at the date of sale. That has to be read along with Article 134. That is a very difficult question. So, I will recommend to watch those episodes which I said which deals with Article 15, with Section 15.4 and Article 134 of the Limitation Act and see all the decisions of the court.

Now, please note one thing. Explanation A to Article 65. That was similar to Article 140 of the 1908 Act. Explanation B was similar as Article 141 of the Limitation Act 1908 Act. And Explanation C corresponded to Article 137 of the Limitation Act 1908 Act. Now, Adverse possession against the co-owners.

That is a very very important. Suppose a property is inherited by 10 children of a common ancestor. I am entitled to a share, you are entitled to a share, we have got other brothers and sisters totaling 10 number.

So I am entitled to a one tenth share. we are all employed elsewhere some in gulf countries some abroad germany italy america england like that some in bombay calcutta and other places only one brother is looking after the property at the end he is looking after the property he is cultivating he is taking the income and normally there will be no sharing that is the peculiarity of Thank you. And that brother continued for several years because we are all working elsewhere.

We are not interested in getting this particular share or other thing. Worst extent of properties. He was not giving.

He is looking after. Occasionally, we go during vacation, stay with the brother, enjoy and see that the brother is looking after the property well. And after several years, this brother either sells a portion. as if he is his own or index strangers or does not permit you to enjoy the property to occupy the house etc then you understand that there is something wrong you find a suit for protection your brother who was in the native place says that he has perfected tightly by a tourist position father died 25 years ago From that date onwards, I am in possession.

Undisputed. All are employed elsewhere. I was the only person who was in the place.

So my possession is clear. I paid the revenue. Brother says that he was in possession all throughout. Nobody can dispute it.

He was in possession. Whether that possession will become a duals. No, because his position is our position also. He is in the position of a constructive trustee.

He is looking after the property for the benefit of the whole lot of corners. He cannot have any special right. He can have that adverse position, comments adverse position, only if he proves ouster.

What is ouster? Ouster is denying the rights of other corners. Practically puts them out. Deny everything. And that state of affairs continues for 12 years.

Then it is called ouster and adduce possession. So even the other corners right can be barred under section 27. that will be destroyed under section 27 and the person who is in possession can claim that he has perfected title by towards position very difficult to do normally no corners claim will be granted by the court because corners position is always that of a corner and that is on that is on behalf of all other forms so in joint families in other say co-ownership properties all these questions arise occasion when a suit is filed when the relationship become strained all these contentions will be put so in a suit for possession where the person who wants to put forward a claim of a dualist position he has to prove that when did he start possession and diversity he has to prove the ingredients of a dualist position And if he is a co-owner, he has also to prove that he has ousted the other co-owners. He has to prove ouster house. So these are the ingrid. Where continence of possession for the required number of 12 years is not enough.

I will give an example. It is a decided case. 84 Supreme Court or so. Say a person grants a license to another man.

So A grants a license to B. Puts B in possession of the property. So B is a licensee. A is the licensor.

A terminated the license. But B, no suit was filed against B for possession. That state of affairs continued and continued for more than 12 years. Thereafter, a suit is filed for possession. The defendant, B, says he has perfected title by a dual possession.

Court said no. How did you come into possession? has a licensee.

True that license was terminated but your possession is always referable to that license unless you forgo that character, you shed that character, you abandon that character and start possession and duality. Have you proved? Finished.

So that if it is referable to a valid contract or a derivative right or a subsidiary right then no adverse position unless some other ingredients are also necessary to be proved in the case of a license or licensee in spite of termination of license licensor did not file a suit that the licensee cannot claim adverse to claim adverse position only if he proves that on termination of license he has shed his character he has a mind that he is character or as a licensee and he starts possession adversely to the real owner to his knowledge and all the ingredients of adverse possession are to be proved by him then it is all. So mere continuance of 12 years possession is not enough then Hindu widow what was the position? that touches upon the prasad hindu law also various sets of laws are there hindu law midakshara in the south daya bhaga and bhagal certain other things in other states i do not know what are all things but joint families are all almost all over again So far as Mithakshina is concerned, that is Mithakshina is in several parts of India, that Mithakshina law is being followed. In our state, in Kerala, there are other sets of laws, also Anubhav Gayan law, where through a female the rights go. That is the most advanced of all laws, all inheritance.

See, in a family partition, sometimes the sister gets more than 20-25 shares, whereas the brother gets only one share. I can demonstrate how. Because only females get right. Only through females, rights are derived. That is called Marumakka Tayapula.

But that was abolished in 1975 in the state of Kerala. Therefore, that is not available. There in a family partition, sometimes the females get... to large number of shares whereas their brothers get only one the whole group of several members will get only so that is the best example of women empowerment that apart that loss that law is not available in kerala also nowadays now in midakshara the fundamental basic principle is that There is a joint family. What is a joint family?

Living under the same roof, having the same common food, common residence, everything. That's the concept. All will be members, whether males or females will be members of the joint family. And among those members, let us take it that there are 100 total, 100 members, including males, females, children, everybody. Out of them, Only the males constitute the unit called co-parser.

Only the males constitute the co-parser. Only they are entitled russians. The females were not entitled russians.

A female member of the joint family before 1936 had only a right to receive maintenance out of the joint family funds. Suppose her husband passes away, she will not get the right of her husband. She will get only a right to maintenance. Maintenance she will get out of the joint family funds, joint family income.

Nothing more than that. She will not get property. So for the first time in India, the Hindu Women's Right to Property Act 1936 was enacted. And by that act, a widow... Instead of in lieu of her maintenance she will get possession of the property in lieu of maintenance.

She can possess that property, enjoy, take the income, enjoy it, but she has no power of alienation or encumbering it. And on her death, it will go to the reversionals, not to her children, to the other co-personals, it will go. To the husband's brothers, it will go.

They are called the reversionals. So the bird is a widow. widow's right before 1936 only a right to receive maintenance after 1936 and before 1956 a right to receive maintenance plus possession of immoral property in lieu of pain but no absolute but that right matured into a full right under section 40 of the hindu society so after 1956 a person who was in possession a widow who was in possession of the immol property in lieu of maintenance was entitled to perfect her height and by saying maturing into the full right and it was converted to the full right under section 14 indefeasible right under section 14 of the intercession that changes so several changes were brought a video available yes so that is reversion so we will see where the suit is by a remainder man a reversion other than a landlord or a device the possession of the defendant shall be deemed to become adverse only when the estate of the remainder man reversion or device as the case may be false.

So only on the widow's death the possession of somebody becomes a deuce. I will give an example. X was the husband.

He was a member of a joint family. He died. His widow is the Y. Y was allotted certain properties in lieu of marriage. she continued in possession while so a person trespassed upon her on the property and started possession i am saying about before 1956 started possession possession continued for more than 12 years then the widow dies it goes to the reversion the reversioner claims the land then the stranger Why he says, no, no, no, I am in possession for more than 25 years.

That possession will not count for adverse possession because only after the death of the widow, his right starts. That possession referable to an adverse possession can be only from that. That is explanation A to B.

See that is now that litigation such litigations are very rare so that is a position of reverse alienation by co-person. Now why this Hindu widows right? Now what is the position? In 2005 Hindu succession act was amended and now the female member is also a co-person in joint families.

Otherwise under the pristine Hindu law The co-personary consisted only of males, not females. Females were never considered as a co-person. She had no right as a co-person.

And what is the benefit of being a co-person? A male member gets right by birth. The moment a son is born, he will have a share in the joint property. So far as female is concerned, no such thing. 56 changes were brought.

Certain states made laws. Tamil Nadu, Andhra Pradesh and other states made the females also as co-parsons. How was it possible when the central law was there? Because it is a concurrent subject. And therefore, the states were entitled to make laws.

Now in 2005, the Hindu sexual act was amended and if a joint family is there, The female is also a member of the co-person of the... and female will also get a right by birth. Therefore that problem is not there. Then alienation by a co-persona.

What was the right of a co-persona? To have possession and to have a share till partition. He has no right to alienate. Alienate he has got right but alienate will not get joint possession. Alienate he has to file a suit for partition.

So he cannot claim that he is in adverse position. So that position also you have to see just for the sake of possession of a mortgagee. Possession of a mortgagee.

What is the possession of a mortgagee? I am the owner. I receive money from you as loan. what is the security for the load i give my immol property as mortgage to you executes the document so you are i am the mongager you are the mortgage you are put in possession of the property that is called processory mortgage and what is my right i will have a right of redemption of mortgage and recovery process various conditions are there how to discharge that load come on principal and interest are to be paid and various stipulations can be made in the document of mortgage you are taking the income that can be adjusted towards the interest or can be adjusted towards the interest as well as principal both or either that is according to the terms and conditions on which we agree so long as you continue as a mortgagee certain mortgages it can continue The period of limitation is 30 years and that 30 years will commence under certain conditions. Otherwise it will go on and on.

The law does not compel a person to file a suit as between parties. The law does not contemplate a suit to be filed for every cause of action. Parties may agree on anything. There is nothing wrong even bond debt can be made good by agreement of party.

So long as the agreement is not unlawful, so long as it is not against the public policy or any law, all such agreements are valid. And the policy of law is not to promote litigation but to reduce litigation. Therefore, the mortgagee continues. And the event happened where I get a right to file a suit on the basis of mortgage for redemption of mortgage against you. and you say that you have perfected title by adverse position.

What is the nature of your possession? The nature of your possession is that of a mortgagee that is referable to a varied contract. That relationship continues.

So long as that relationship continues, you cannot have perfected title by adverse position. Adverse possession and possession of a mortgagee will not go together. So long as you are a mortgagee, Unless you abandon that character as a mortgagee to my knowledge and to the whole world and you start open continuous without interruption possession for the required number of 12 years then only your possession will be undue on other ones. Possession of a lessee also same thing possession of a lessee there is a lease.

Lessee is having a derivative right lesser right. that is the owner's right under owner he is having a right his possession is referable to the lease his possession is legal so long as he continues as a lessee he cannot prescribe title by adverse possession against the lesser unless he proves that he has terminated the even after termination of the lease or license position does not change that possession will not never become adverse less it is preferable to any other event preferable to l valid contract i said list but once a suit is fine see let us take i am the owner you are a trespasser you trespassed 10 years back and now five years back five years I waited for five years, I fired the suit after five years. The suit goes on and on, you drag it.

You file an appeal, you file a revision, this and that. It took more than 12 years to dispose of the suit or appeal. Can you add on this period during the pendency of the suit?

No. Once the suit is filed for recovery of possession based on title, your adverse possession is interrupted. You cannot add the period thereafter.

No. It is not possible. Otherwise, the people will drag on the proceedings up to Supreme Court and say that 12 years is over. 12 years before the suit, not thereafter. Then appointment of a receiver in a suit, that will not interrupt possession.

Suppose there is a suit for partition or something like that, a receiver is appointed. Once the adverse possession starts, appointment of a receiver is, it does not, that adverse possession is not interrupted by the appointment. Then declaratory decree, only a suit for declaration, no other consequential decree. I file a suit for declaration, get a decree that I have got title.

You are in possession. Possession continued several years, thereafter more than 12 years with all the incidents of adverse possession. The mere fact that I have got a declaratory decree does not interrupt your adverse possession. that will not arrest your dualism.

That tacking, there is a principle of tacking. What is that principle? I am the owner, let us take it.

I am the owner. Let us take it, A is the owner of the power. A is the owner of the power. It was trespassed upon, A was ousted and it was... the property was trespassed upon by B.

B continued with all the incidents of a doers possession for 5 years. Then B was dispossessed by C. C continued for 5 years with all the incidents of a doers possession. Then C was ousted by D.

He continued for another 5 years. So total B, C and D. Total 15 years.

A is the order. A file says OOTA gets stored. D claims that he has perfected IT by 2 years.

What is the answer? No. While B was dispossessed by C, C was dispossessed by D.

There is no derivation, right? It is a pure and simple trespass. So that five years will not constitute, there is no adding on the period. That is called tacky.

Whereas same instance, A's property be trespassed upon. After five years, he transfers that. whatever incohete right, immature right to C. Then C continues for 5 years, he also transfers to D.

He continued for 5 years, total 15 years. So this period can be added on. So that so far as A is concerned, he was dispossessed 15 years ago and all these 3 persons possessed it continuously one after the other.

with a relationship between each other with a continuity in title and therefore they can tack on. Tacking on and all those things, principles you will get in Greval's Jettunak, Justice Aravind Veswara's stage. Then there are two decisions of the Supreme Court, Justice Delvire Bhattacharya.

who says that this is a british principle british law we have inherited it there is no law this is all wrong immoral illegal you are conferring right on a person who does not have a right that a re-look is necessary with respect to this and therefore a change in law is It is against the human rights. There is another decision by Justice S.P. Sinha that affects the human rights. So, it is a recent trend is to frown upon adverse person.

And in the matter of proof, the courts are very tough to accept the plea of adverse person. Particularly when the plea is so big, proof is clumsy or the materials are not there. then the courts will not accept the plea of a diverse position now one hour 15 minutes over so mr vigas can we have an interactive session now yes sir uh we can have we have the questions also on this i cited one judgment there are hundreds because that that total time that may not be now the people will get bored if I start deciding, if I take decision.

This is by K Sankaraman. What is your opinion regarding the observation of the Honourable Supreme Court in Ravinder Gaur case that is 2019 Volume 8 SCC 729. No right can accrue by adverse position on lands reserved for public utility. What is your take on that?

Question to me. Yes, sir. There are one or two paragraphs with respect to public property.

And it is always said that it is always better that the court insists on further proofs and other aspects as well. But so far as public property is concerned, say government property, the period of limitation is 30. A recent trend is that the court will be very reluctant to accept the plea of adverse possession. so far as it is government land is concerned.

Public property is not for the individuals to keep and claim for it. That is a recent trend. But of course in Justice Harit Beshele's judgment also there is reference to it in, I think, two paragraphs.

Since that question was put, I will mention it which paragraph. 60 60 60 60 maybe yes there are one or two paragraphs at that point so that the courts will be very reluctant to accept the plea of Honduras possession into this government. Even otherwise, the period of limitation is 30 years for the government to file the suit for eviction. But under the 1908 act, the maximum period was 60 years. Now under the 1963 act, the maximum period has been reduced to 30 years.

It was originally 60 years. Yes, Mr. Sankar Rao. I have seen you in some other webinars also, Policode webinar. You are there.

You come to which place? Unmute him. Sir, I will unmute him.

Shankaram belongs to Madras? Yes, sir. Shankaram. We are unmuting him. Sir, he will have to unmute himself.

Mr. Shankaram, you will have to unmute yourself. Oh, yes. You have to unmute yourself, Mr. Sankaram.

Yes, it is unmuted. Sir, not you. I am asking the lawyer. Yes, he has unmuted himself. I am from Tirunelveli.

Can you hear me? Yes. Good evening, sir. I am from Tirunelveli. Tirunelveli.

Oh, nice. Southern end of Tamil Nadu. So, in the recent judgment at Para Honorable judges, there is no adverse person advisable for the public utility basis.

Yes. Your opinion regarding that, I suggest. Why opinion? You see, we have to follow that Supreme Court judgment.

And it is very difficult to accept that the contention, so far as public property is concerned. The courts will be very reluctant to. That is a present tragedy.

That's what we said. Yes, I respectfully agree with that Supreme Court. That just, Greval's judgment was really beneficial.

It was the other two judgments by Justice KS Radhakrishnan and Justice Sikri. That Gurudwara Sahib's case, that created a lot of difficulty. What they said was, Justice Radhakshan from our place, the good gent, Justice Sikri also very good gent, but they took the view, they are entitled to take the view, they took the view that a person who has perfected title by a dualist position, who claims a dualist position, cannot file a suit for declaration. They can only defend it as a defendant, not as a plaintiff. It's not as a sword, but only as a shield.

But that created a lot of difficulty. Now they can set up titillants. And now that judgment is very clear.

Now the law is settled. The law is very, very clearly settled by Justice Anand Vispas. Yes. The three judgments. Yes.

Thank you. Thank you so much. Thank you so much for your answer.

Yes. So this is by, what if the property X on which A claims adverse position has been in dispute between D and F and the case is before the court, but A otherwise fulfills all the other requirements required for claiming adverse position? I don't think the question is not clear for me. So what if the property X on which A claims adverse position has been in dispute between D and F and the case? is before the court but a otherwise fulfills all of the requirements required for claiming adverse position will the fact that the property x is in dispute between d and f affect the right of the claim to uh right of a to claim adverse position yeah if a proves a nervous person he will perfect title what is the objection of a x and other other person does it dispute and how did they come into the party array who is the owner who filed the suit uh if the property acts on which he claims property belongs to whom who filed the suit that is not mentioned that is not mentioned uh so another question would be uh let's assume and original application before a tribunal etc is if there is a delay there has to be a provision of filing an application for condolation of delay but let's assume he doesn't file an application for condolation of delay along with that and the case is decided on minutes so if you want to challenge and appeal to a screen taken in the written statement to the effect that it is bar of a limitation so what will be the legal position on that section three of the limitation act six section three of the limitation i will read that since that question came subject to the provisions contained in sections 4 to 24 every suit instituted appeal preferred and application made after the prescribed period shall be dismissed Although limitation has not been set up as a defense.

No, here the plea of defense had been taken, but not decided as such. We say our stand is to the effect that the matter either should be remanded back because before the tribunal he should move an application for seeking condolence of delay and then thereafter only the matter should be heard on merits. Yes. So it can be a ground can be taken to the appeal the Appellate Court if it finds even without the remanding it if there are grounds for condoning it can be condoned if condonation is possible under law it can be condoned but see it has to be borne in mind that this not taking the plea of adverse possession which we I said about section 3 applies only when it is clear on record So, a suit is filed based on a promissory note on 1-1-2015, 2015 is the date of the promissory note.

What is the last date for filing the suit? 1-1-2018 is the last date. Suppose it is filed thereafter.

Suit is promissory notice before court. Plaintiff's letter, date of promissory note is mentioned. Date of filing the suit is clear.

Even if the defendant is ex parte, the defendant does not come to the court. Court is bound to dismiss the suit. On the other hand, same example, it is filed thereafter, after three years.

But the plaintiff relies on an acknowledgement, acknowledgement of liability under Section 18. Therefore, a fresh period of limitation will start from running from the date when the acknowledgement is made. That has to be proved by him. And if no contention is raised on that, evidently, the court will have to consider only the plaintiffs.

There will be no assistance from the defendant. So, there are instances where contentions are necessary and instances where there is no contention at all, the suit has to be dismissed on the ground of limitation. There is one more thing which I would like to mention. It is not the law that in every case the defendant should appear and answer the claim. Suppose he does not, he finds that the suit is absolutely not maintainable on the face of it.

Either because it is barred by limitation or barred by any other law or it is against public policy or against any other settled law. He can believe that the court will do it, the court knows better than me. So even if I do not go to the court, the court will dismiss.

And then the court does not dismiss it. He can file an appeal. Even if he is an ex-party defendant, he can file an appeal.

So in this case, the example which was questioned, which was given, even though that contention is put forward but not considered, definitely an appeal is maintainable, the appellate court can... either decide it by itself or remand it if necessary but as against remand as so far as remand is concerned the court is very reluctant to make the remand now because the principles are well settled remand only if it is absolutely necessary there we have to say rule 23 23 a of order 41 these are the two instances where remand can be made And 25 says, 24 says that if evidence on record is sufficient, no remand is required. Even if it is not considered by the trial court, it can be considered by the appellate. But here, the question is not clear whether the evidence has been adduced or all the materials are on record.

If all the materials are on record for the court to arrive at a correct conclusion, it is not necessary to remand it. not be remanded even if the trial court has not considered the appellate court can answer the appellate court has got all the powers of the trial all the powers of the trial the appellate court can under section 107 of the cpc can either decide it completely remanded dismiss it everything can be done and i remember that this rule 24 of order 41 which says that if evidence on record is sufficient the court shall not remand it shall decide it please check up mr sankar it is i do not have ctc here on the table order 41 rule 24 yes 24 23 23 a 24 23 and 23 are the remand so if the The question is Mr. Vikas whether the appellate court can we are pressing for a remand whether the appellate court can remand. Remand is a you see as a last resort. Order 41.23.

No. Where evidence on record is sufficient court shall not remand. 24. 24. Yes. Order 41.24 where evidence on record is sufficient the appellate court may determine case finally. With evidence upon record is sufficient to enable the appellate court to pronounce the judgment, the appellate court may after resettlement as resettling the issues, if necessary, finally determine the suit notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than which the appellate court has proceeded.

Yes, there is a judgment of five judges which is not seen in any logic. Not reported. In the 1970s, there is a decision by five judges that a remand should not be made for remand sake.

But AER, SEC, no other law journal has cited it. And our Kerala Judicial Academy had a publication at that time that was called Judicial Vision. Judicial Vision had published it.

And recently, in a judgment of the Kerala High Court, one judge pointed out this. And then later it was referred to in some other judgment of the, some other IER or some other decision. It is referred to.

There is a constitution by the decision. And remand should not be made for the remand sake. And that is why, see, for example, remand should not be in order 14 rule 2 CPC. Order 14 rule 2 underwent a change in 1976. That is preliminary issue.

Now. The present order 14 rule 2, the court can decide a case on a preliminary point if only on a pure question of law and if there is a question of jurisdiction. If these two conditions are satisfied, that question can be decided as a preliminary issue and not otherwise.

But before 1976, the position was different. On every matter of the court, whether the trespass is true or what is the date of dispossession, all these things were the questions. And some question will be decided as a preliminary issue and the suit will be decided.

Then appeal goes. The appellate court does not agree with the decision of the trial court. There is no other alternative but to remand. And the courts were fed up with these orders of remand and the necessity of making a remand.

Therefore, it was thought that it is necessary to have... to contain this say wrong practice which is being followed and that is why order 14 rule 2 was amended by the parliament yes yeah mr because can i ask yes yes definitely yeah yeah good evening sir yeah sir let us say an employee was given a house by a company and the employee resigns and takes up employment in a different company and the company does not take action for adverse possession Okay, now, here, though the employee has come to possession by way of permission because of his employment, once he joins another company, can we not say that the time of limitation begins? And that is one. And can the company still claim that there was continuing permission even if they did not take action?

Yes. I have another question I'll ask once we finish this. yeah go ahead sir go ahead see there are two things he was an employee of the company and as such he was limited a house so his possession was referable to his employment in the company company contents that even after he joined another company he was permitted to continue He was permitted to continue. So here, company's title is not disputed by the defendant.

By the defendant. Defendant who claims adverse position. I suppose that the defendant claims adverse position.

Yes. Yes. Yes.

The company's paramount title is not disputed. It is also not disputed that he started possessing it as an employee of the company and as permitted by the company. And now the company's contention is that that relationship continued even thereafter and despite the fact that the employment in the company is not good. So it is for the defendant to prove that he has started possessing unduly after the employment has ceased.

And it is a question of fact to be decided on the basis of the evidence. If you ask me on whom the burden of proof lies, I will say that it is on the defendant, the person who claims an adverse person to prove an SRE inquiry. The totality of the evidence will be looked into by the court and a decision on facts will have to be arrived at in the particular case. Yes.

Okay. So just Mr. Vikas, a connected question I had, you asked, I think probably Justice. Yeah.

So let's say in the same scenario, the property itself is in dispute, let's say between that company and some other party. So if there is a dispute and when the employee, no, I'll ignore that. Let us say there is a property X on which A claims adverse possession, but that property X itself is in dispute between D and F and it is before the court.

Now let us say A otherwise fulfills all the requirements of adverse possession. Just because there is a dispute between D and F on the same property X, will the rights of A to claim adverse possession get affected? Normally, if the person who claims adverse possession, if he proves adverse possession for the required number of years.

His right will be perfected and whoever is the owner of the property who has got the title to the property, that right will get extended. Simply because there is a dispute between two persons with respect to that, that will not destroy the right of the person who claims to do it. But there is, we have to say one more thing. There is a line of decisions which say that even if the person who makes the claim of adverse possession does not know who the owner is yeah still his possession as adverse possession is not destroyed he can have a diverse position that is a view in one of the decisions of the kerala that decision was overruled by a full bench there is a supreme court judgment which says i think it is by justice which says that if you do not know who the owner is, how can you have adverse position? So there are various decisions on the point.

And now, going by the latest Supreme Court judgment on that point, so far as I can see, that the person who claims adverse position must be aware of the identity of the owner. And then only he can have hostile title against him. Suppose he believes the person who claims adverse possession believes that he is the owner or he does not know who the owner is. He cannot have adverse possession.

It is the view which is available with reference to that Justice Passaic's case. So even if there is a dispute between two persons, suppose a suit is filed by A, we will take it that way. A suit is filed by A claiming that he has got ownership.

Or the person in adverse position files a suit for declaration of title and for injunction against B and C. B is the title holder, then C claims right. There is a dispute between B and C. Doesn't matter.

If A proves adverse position, he will get right. Whoever is the owner. But he does not know who is the owner. Suppose.

He puts forward a claim for adverse possession and he must possess it against the true owner, namely X. And it is proved that X has no right at all. It is a real owner is Y.

You did not put it to the knowledge of Y. Particularly when he is a co-owner, it is all right. It must be put to the specific knowledge that must be asked.

These are all the principles on facts we have to apply. Yes. Thanks very much, Mr. Justice. Yeah, unmuting GlaxiM40.

He wants to ask a question. We will request the participants that they should log in by the name. It becomes easy to unmute and disclose the name. GlaxiM40.

So I can just read the question. Insult for declaration that the perfected title by adverse position and perpetual injunction. If it reveals that the plaintiff is in position, not adverse against owner, whether still he is entitled for injunction to protect his position till the owner follows due process of course of law to recover the position.

Yes. I will answer without exactly answering the particular case. because that requires the statement of certain principles that you apply the principle to that case. See that is, I ask for intervention just that comes, yes. That article 64 of the limitation, it is a suit based on Previous possession.

Article 65 based on title or any derivative or any other right with respect to it. What is the right of the person who claims adverse possession? Say A files, I file a suit against you.

Saying that I was in possession, settled possession. I am not claiming any right over the property except possession. Over his honour, I am in possession for the last several years.

But you the defendant ousted me, you are also in a right. Therefore please inject. the defendant if the court finds that i was in civil position the court will grant an injunction in my favor against the defendant provided the defendant is not the true that means a person in possession can get Relief under Article 64 against anybody in the world except the true one.

Except the true one. Whereas under Article 65, his suit of title is filed by the owner. The defendant who claims adverse possession has to prove that he has to perfect a title.

by a dualist possession. On perfecting that title by a dualist possession, section 27 applies. Right itself goes. That is why the owner's suit is being dismissed. Suppose an owner is dispossessed by a person.

he can file a suit against him for recovery of possession and that person while in possession wrongful possession was attempted to be dispossessed by the true owner see i will give example very clear i am the true owner of the property while i was possessing as a true owner you a person having no right dispossessed me and you gained possession what is my right i can find a suit for recovery possession you either under article 64 or under article 65 does it matter but instead of resorting to that I forcibly trespassed upon the property and ousted you. You have no right, but you are in a wrongful position. What is your right?

Still you have got a right. Your right is to file a suit under Section 6 of this specific bill. Within six months, you can file a suit and get back possession.

Suppose the court finds that though I am the real owner, my act of high-handedness was there in ousting you and therefore the court granted a decree in your favor. Under section 6 of this specific decree was passed and you were directed to be put in position. Then what is my right?

I can file a suit under article 65. nothing wrong thereafter but suppose that is one example i will give another example a property there is an order a is the owner b who is a stranger and who does not have a right This possesses A and then thereafter B continues in possession. While so, B was ousted by C. What is the right of B against C?

B is not the owner. He was only having wrongful possession. But that possession was interrupted by another person who does not have a right.

So B could file a suit under Article 64 against C. While B or C as the case may be was in possession. I forcibly dispossessed. both either or both of you p or c what is your b's or c's right only a suit under section 6 of the specific relief the person in wrongful possession does not have a right under section 64 article 64 to file a suit against a true owner he does not have a right under article 65 to buy the suit against the true owner because it is based on title Though Article 64 speaks of possession and dispossession, not title, but that possession can be protected against the whole world and a suit can be filed against any person in the world except the true. So a person in wrongful possession can file a suit, who was dispossessed can file a suit against the true owner only under Section 6 of this procedure.

And even if that person gets a decree, that can be got over by filing a suit on title. Yes, I think I have made the position clear. Then apply to the facts of the case. Yes. Now it's around 6.15 and so we can call for the day and we will ask you to join on.

Another day to give the insights. As usual, the issues which were explained by your good self, they were self-explicit. The questions raised and as usual, they were answered in a very elucidate manner. And I'm quite hopeful that those who have been watching us on the Facebook as we are live, as well as on this platform, would be actually be enlightened. and more so those who will be watching us on the youtube channel of beyond law clc wherein this not only this webinar but all the other webinars which have been uploaded can be seen so they can subscribe share and like that channel of beyond law clc for all the webinars which have been done so far and thank you sir as usual the insights given by you it was actually quite Engaging and enlightening session.

Thank you all. I am not fully satisfied. Pardon, sir? I am not fully satisfied in the sense that I have only stated the principles with respect to undue disposition.

It is not fully useful to you, the viewers. That will be useful only if all the inputs are provided for which at least 5 to 10 hours is required. which i have done in the youtube so what we can do is we will have another webinar another prospects which can be done not immediately that will not be over webinars it has got limited time so what i suggest is that if they are interested let them watch those episodes which i have mentioned so that it has been done very exhaustive yes All aspects you're dealt with. Another webinar means a person who disengages in other activities come and sit before the table and he cannot have more than one and a half hours to go.

So on the other hand these episodes are less than 25 minutes, 30 minutes. One is over, next you can go out and then come back and see the next episode like that. So that there is interruption.

Any time you can see. Yes. So I am thankful to Mr. Bigas and his team for providing me this opportunity for directing. Sir, people are asking about your YouTube channel.

Just tell them the name. See that is I have given the link to you. www.justicektchankaran.com.

I will see two apps also were developed. I'll just give it. Yes.

So they will watch the YouTube channel. I know that Justice KT Sankrant. You type www.justicektsankrant.com.

You will get it. Thank you. Thank you.

Thank you. Thank you. Thank you. Thank you.

Thank you. Thank you. Thank you.

Thank you. Thank you. Thank you. Thank you.

Thank you. Thank you. that stroke CPC stroke LA.

LA means limitation, separate. So that is in respect of the website. I am telling them the YouTube channel of Justice KT Sankaran. They can watch all your webinars which have been uploaded on the YouTube channel.

Yes, everything. They can go to the YouTube channel or the and thank you to all the participants once again for joining us and tomorrow we are having a webinar. on the return of plaint and rejection of plaint by Mr. Srinath Sridharan, the famous lawyer from Chennai and the partner of HSEB Law Chambers.

So do stay connected with us tomorrow at 4.30 on the webinar of rejection of plaint and return of plaint. Thank you, everyone. Thank you. And thank you, sir, once again.

Thank you. Thank you. Namaste. Namaste. Namaste to all.

Yes. Shankar Ramachandran, see you. I think I can leave.

Because can I leave?

Transcript for:Understanding Adverse Possession in Law

Transcript for:
Understanding Adverse Possession in Law