Can a Person File a Suit for Declaration of Title by Adverse Possession?

The doctrine of adverse possession occupies a unique and often controversial position in Indian property law. While traditionally used as a shield by a defendant to protect long-standing possession against the claims of the true owner, modern litigation has increasingly raised an important question: Can a person file a suit for declaration of title by adverse possession? This issue has been examined repeatedly by Indian courts, including the Supreme Court, leading to nuanced and evolving legal principles.

Yes, a person can file a suit for declaration of title by adverse possession under Indian law, but such a suit is maintainable only when the claimant has clearly perfected title by fulfilling all legal requirements of adverse possession, and courts examine such claims with extreme strictness.

This article provides a detailed, structured, and comprehensive analysis of the maintainability, legal basis, judicial interpretation, procedural aspects, and practical considerations involved in filing a suit for declaration of title by adverse possession in India.

Understanding the Concept of Adverse Possession

Adverse possession refers to the acquisition of ownership rights over immovable property by a person who is not the lawful owner but has been in continuous, open, hostile, and uninterrupted possession of the property for the statutory limitation period. The doctrine is rooted in the principle that the law does not assist those who sleep over their rights.

Adverse possession is not a positive right created in favour of the possessor; rather, it arises as a consequence of the true owner’s failure to take legal action within the prescribed limitation period.

Statutory Framework Governing Such Suits

Limitation Act, 1963

Article 65 prescribes a limitation period of 12 years for filing a suit for possession of immovable property based on title, starting from the date when possession becomes adverse.
Section 27 provides that upon expiry of the limitation period, the right of the true owner is extinguished.

Together, these provisions form the foundation for claiming ownership by adverse possession.

Specific Relief Act, 1963

Section 34 allows a person entitled to any legal character or right to property to institute a suit for declaration.
A person who has perfected title by adverse possession may invoke this provision to seek declaratory relief.

Code of Civil Procedure, 1908

Procedural aspects such as pleadings, evidence, jurisdiction, and reliefs are governed by the CPC.

Traditional View: Adverse Possession as a Defence

Historically, Indian courts treated adverse possession primarily as a defence. A defendant in a suit for possession filed by the true owner could plead that the plaintiff’s claim was barred by limitation because the defendant had been in adverse possession for more than 12 years.

Under this traditional view:

Adverse possession was considered a shield, not a sword.
Courts were reluctant to allow a trespasser to proactively seek ownership through a declaration.

This approach aimed to discourage illegal occupation and misuse of the doctrine.

Evolving Judicial View: Adverse Possession as a Cause of Action

Over time, courts have recognized that once the limitation period expires and the true owner’s title is extinguished under Section 27 of the Limitation Act, the person in possession effectively becomes the owner. As a result, such a person may seek a declaration of title to avoid future disputes.

The Supreme Court has clarified that:

A person who has perfected title by adverse possession may maintain a suit for declaration.
However, such a suit is not maintainable merely on the basis of long possession; the claimant must establish all elements of adverse possession conclusively.

Key Supreme Court Judgments on Maintainability

Gurudwara Sahib v. Gram Panchayat

The Supreme Court observed that adverse possession is generally a defence and questioned the maintainability of a suit solely based on adverse possession. However, the judgment did not completely bar such suits and was later clarified.

Ravinder Kaur Grewal v. Manjit Kaur

In this landmark judgment, the Supreme Court settled the law by holding that:

A person in adverse possession can use it both as a shield and as a sword.
Once title is perfected by adverse possession, the possessor can seek declaration of ownership.

This judgment provided clarity and resolved conflicting views.

Conditions for Filing a Suit for Declaration by Adverse Possession

A suit for declaration of title by adverse possession is maintainable only if the following conditions are met:

The claimant has completed the statutory period of adverse possession.
Possession is actual, continuous, open, exclusive, and hostile.
The possession is peaceful and without force.
The true owner’s title has been extinguished under Section 27 of the Limitation Act.
The claimant has clear and consistent pleadings supported by evidence.

Courts reject suits where adverse possession is pleaded vaguely or inconsistently.

Burden of Proof on the Plaintiff

The burden of proof lies entirely on the person filing the suit. The plaintiff must prove:

The date and manner of entry into possession.
The nature of possession.
Hostility to the true owner.
Continuity for the entire limitation period.
Knowledge or deemed knowledge of the true owner.

Mere long possession or revenue entries are insufficient.

Pleadings in a Suit for Declaration by Adverse Possession

Proper pleadings are critical. The plaint must specifically plead:

When possession became adverse.
Against whom it was adverse.
How hostility was asserted.
How continuity was maintained.

Contradictory pleas, such as claiming ownership through documents and adverse possession simultaneously, often result in dismissal.

Evidence Required in Such Suits

Courts require strong documentary evidence, including:

Revenue records showing continuous possession.
Property tax receipts.
Electricity and water bills.
Crop cultivation records.
Mutation entries (supportive, not conclusive).
Testimony of independent witnesses.

The evidence must cover the entire statutory period without significant gaps.

Adverse Possession Against Government or Local Authorities

When adverse possession is claimed against Government land:

The limitation period is 30 years.
Courts apply stricter scrutiny.
Public interest considerations weigh heavily against the claimant.

Such suits are rarely successful unless supported by exceptionally strong evidence.

Adverse Possession in Co-ownership and Family Property

In cases involving co-owners or family members:

Possession of one co-owner is presumed to be for all.
The claimant must prove ouster and hostile denial of others’ rights.
Courts require clear and unequivocal evidence.

Declaratory suits in such cases face significant challenges.

Reliefs That Can Be Claimed Along With Declaration

A suit for declaration of title by adverse possession is often accompanied by:

Permanent injunction to protect possession.
Mandatory injunction in appropriate cases.

Seeking consequential relief strengthens the maintainability of the suit.

Common Grounds for Rejection of Such Suits

Courts commonly reject suits due to:

Failure to prove hostility.
Permissive possession.
Incomplete limitation period.
Inconsistent pleadings.
Lack of credible evidence.
Attempt to legalize illegal encroachment.

Practical Considerations Before Filing Such a Suit

Before filing a suit for declaration by adverse possession, one must:

Carefully assess evidence covering the entire limitation period.
Ensure pleadings are precise and consistent.
Evaluate whether adverse possession is better raised as a defence.
Consider the judicial reluctance to entertain weak claims.

Conclusion

A person can file a suit for declaration of title by adverse possession under Indian law, but such a suit is maintainable only when the claimant has conclusively perfected title by fulfilling all legal ingredients of adverse possession. The Supreme Court has clarified that adverse possession can be used both as a defence and as a cause of action, but courts continue to apply this doctrine with extreme caution.

Given the heavy burden of proof, strict scrutiny of evidence, and evolving judicial attitude discouraging misuse, suits for declaration of title by adverse possession must be approached carefully and strategically. Proper pleadings, strong documentary evidence, and a clear understanding of legal principles are essential for success in such cases.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304