From Shield to Sword: The Evolving Jurisprudence on Adverse Possession in India

From Shield to Sword: The Evolving Jurisprudence on Adverse Possession in India

Introduction

Adverse possession – the doctrine that allows a possessor to acquire title upon the lapse of a statutory period – has long been regarded with ambivalence. While it promotes certainty of titles and quiets stale claims, it simultaneously rewards a possessor who may have begun as a trespasser. Indian courts traditionally treated the plea as defensive in nature, permitting it only as a “shield.” Recent jurisprudence, however, signals a doctrinal shift that equally recognises an adverse possessor’s ability to wield the doctrine as an “offensive sword.” This article critically traces that transition, situates it within the statutory framework of the Limitation Act, 1963, and evaluates its normative coherence and policy consequences.

Statutory Framework

Sections 27 and 28 of the Limitation Act, 1963 (hereinafter “the Act”) extinguish the title of a true owner upon expiry of the prescribed limitation period and correspondingly vest title in the adverse possessor. Article 64 allows a person dispossessed of immoveable property to sue within twelve years where the suit is based on prior possession; Article 65 prescribes the same limitation where the suit is “based on title.” Whether an adverse possessor may sue on such “title” became the fulcrum of the shield–sword debate.

Early Judicial Position: Adverse Possession as a Shield

1. Gurdwara Sahib v. Gram Panchayat Village Sirthala (2014)

The Supreme Court in Gurdwara Sahib held categorically that a plaintiff cannot seek a declaration of ownership founded on adverse possession; the doctrine, said the Court, “can be used only as a shield, not as a sword.”[1] Although the trial court had accepted uninterrupted hostile possession since 1952, the relief of declaration was denied, reflecting an insistence that adverse possession is purely defensive.

2. High Court Applications

Post Gurdwara Sahib, numerous High Courts dismissed suits premised on adverse possession at the threshold.[2] The Delhi High Court in Manmohan Service Station and the Madras High Court in N. Nandagopal echoed that the doctrine protects possession but does not confer an actionable title.

3. Theoretical Underpinnings

The “shield only” view derives from two assumptions: (i) adverse possession merely bars the owner’s remedy, it does not positively create a new title; and (ii) Article 65 speaks of suits “based on title,” which, according to this view, excludes possessory titles perfected by limitation.

Critiques, Tensions and Doctrinal Inconsistencies

The restrictive approach soon encountered practical and theoretical difficulties:

  • Section 27 explicitly “extinguishes” the owner’s title, implying the creation of a reciprocal estate in the possessor.
  • The absence of an offensive remedy rendered a perfected possessor remediless against third-party trespassers or even the former owner acting de facto beyond limitation.[3]
  • International human-rights discourse, highlighted in P.T. Munichikkanna Reddy v. Revamma, emphasised the necessity of balancing owner rights with the possessor’s settled expectations.[4]

The Paradigm Shift: Recognising the Sword

1. Ravinder Kaur Grewal v. Manjit Kaur (2019)

A three-Judge Bench revisited the question and emphatically overruled Gurdwara Sahib, holding that once title is perfected by adverse possession, the possessor “can use it both as a sword and as a shield.”[5] The Court relied on historical common-law practice, comparative jurisprudence and a purposive reading of Article 65 to conclude that such a possessor sues on his own title, not on the extinguished title of the original owner. A consequential right to eject subsequent trespassers or reclaim possession post-dispossession was thus affirmed.

2. Subsequent Endorsements

The ratio has since been reiterated by the Supreme Court in Krishnamurthy S. Setlur,[6] Mohammade Yusuf v. Rajkumar[7] and most recently in Govt. of Kerala v. Joseph.[8]

3. Conceptual Justification

The Court reconciled the creation of title with Section 27: extinguishment ipso facto vests absolute title in the possessor. Therefore, a suit under Article 65 “based on title” squarely encompasses an adverse possessor who now claims a statutory title. Any contrary interpretation, the Court held, offends both textual fidelity and practical justice by denying a remedy to one who, in law, has become the owner.

Stringency of Proof: Continuity, Hostility and Animus

Even while broadening the remedial ambit, the courts have retained a stringent evidentiary threshold. P.T. Munichikkanna Reddy and D.N. Venkatarayappa mandate clear proof of:

  • Starting point of possession;
  • Adverse animus (animus possidendi) nec vi, nec clam, nec precario;
  • Publicity and exclusivity of occupation;
  • Continuity for the statutory period.

The recent five-Judge decision in M. Siddiq v. Mahant Suresh Das (Ayodhya) reaffirmed these requisites,[9] underscoring that the doctrinal expansion of remedies does not dilute substantive rigour.

Adverse Possession against the State

Distinct considerations arise where the State is the owner. In State of Haryana v. Mukesh Kumar, the Supreme Court condemned governmental attempts to dispossess citizens through adverse possession, characterising such conduct as antithetical to the State’s protective role.[10] Similarly, in Karnataka Board of Wakf v. Union of India the Wakf Board’s claim was rejected for want of hostile animus.[11] The message is clear: while private owners may lose title through neglect, sovereign functions render the State’s adverse possession claims suspicious and subject to higher scrutiny.

Policy Evaluation

1. Certainty versus Morality

The sword approach undeniably fosters certainty by allowing settled possessors to regularise their titles. Critics, however, argue that it legitimises wrongful appropriation. The Supreme Court has responded that animus possidendi and the demanding standard of proof militate against casual encroachments.[12]

2. Transaction Costs and Marketability

Allowing a perfected possessor to obtain a declaratory decree enhances marketability of titles, reducing transaction costs and fostering economic utilisation of land. Conversely, perpetuating a merely defensive right would compel possessors to depend indefinitely on factual control, deterring investments.

3. Human-Rights Perspective

Revamma imported European jurisprudence to highlight that prolonged possession crystallises legitimate expectations deserving protection. The sword doctrine thus aligns domestic law with evolving human-rights norms that value stability of long-enjoyed homes and livelihoods.

Practical Implications for Litigants and Courts

  • Pleadings: Plaintiffs must plead the date of commencement, nature of hostile possession, and knowledge of the true owner.[13]
  • Reliefs: Declaratory title, permanent injunction, and where dispossessed, recovery of possession under Article 65 or a possessory suit under Article 64 even before perfection.[14]
  • Government Land: Claims against government entities remain difficult; special statutes (e.g., SC/ST land-protection laws in Karnataka) may bar adverse possession altogether.[15]
  • Evidentiary Burden: Documentary corroboration (revenue records, tax receipts) and credible oral testimony remain indispensable.[16]

Conclusion

Indian jurisprudence has traversed from a rigid “shield only” orthodoxy to a more balanced recognition that adverse possession, once perfected, bestows a title actionable erga omnes. This evolution, culminating in Ravinder Kaur Grewal, is normatively defensible, textually anchored in Section 27, and pragmatically necessary. Nonetheless, courts remain vigilant in scrutinising claims, especially where public lands or vulnerable communities are involved. Future legislative or judicial refinement should aim at harmonising certainty of titles with equitable land distribution, possibly through a calibrated requirement of good-faith occupation as in comparative jurisdictions. Until then, the sword lies unsheathed, though wielded only after a stringent trial of proof.

Footnotes

  1. Gurdwara Sahib v. Gram Panchayat Village Sirthala, (2014) 1 SCC 669.
  2. See, inter alia, Manmohan Service Station v. Mohd. Haroon Japanwala, 1994 (Delhi HC); N. Nandagopal v. Arumugam, 2016 (Madras HC).
  3. Krishnamurthy S. Setlur v. O.V. Narasimha Setty, (2019) SC; para 59.
  4. P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59.
  5. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729.
  6. Krishnamurthy S. Setlur v. O.V. Narasimha Setty, supra.
  7. Mohammade Yusuf v. Rajkumar, (2020) SC.
  8. Govt. of Kerala v. Joseph, (2023) SC.
  9. M. Siddiq (Dead) through LRs v. Mahant Suresh Das, (2020) 1 SCC 1.
  10. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404.
  11. Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779.
  12. G.M. Venkatareddy v. Deputy Commissioner, Kolar District, 2012 (Karnataka HC).
  13. Revamma, supra; also Jai Kishan v. Sardari Lal, 2015 (HP HC).
  14. Mohammade Yusuf, supra.
  15. D.N. Venkatarayappa v. State of Karnataka, (1997) 7 SCC 567.
  16. S.M. Karim v. Bibi Sakina, AIR 1964 SC 1254; Parsinni v. Sukhi, (1993) 4 SCC 375.