Section 27. Extinguishment of right to property–
At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
Exitnguishment of Right to Propety –
Sec. 27 lays down that the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property gets extinguished.
The principle is of general application and is not confined to suits or applications to which the period of limitation is prescribed under the Limitation Act. The principle also applies in areas where the Limitation Act does not apply.
As between private owners contesting inter se the title to lands, the law has established a limitation of twelve years (Art. 65, Limitation Act): after that time it declares not simply that the remedy is barred, but that the title is extinct in favour of the true owner and vests in the possessor of the property. Sec. 27 only applies to persons who are out of possession and seeks to recover possession, but not to the case of a person who is still in possession of the property.
Sec. 27 applies to both movable and immovable property. Where no period of limitation is provided, then Sec. 27 does not apply. It may be noted that Sec. 27 is not actually related to the law of limitation but to a law of prescription which has to be distinguished from the law of limitation.
Under Sec. 27, not only the ownership to one person is extinguished, but an absolute ownership is also acquired by the other person in adverse possession. Twelve years’ adverse possession of land by a wrongdoer not only bars the remedy and extinguishes the title of the rightful owner, but confers a good title upon the wrongdoer.
The title which is acquired by adverse possession is a new title in strictness of law, it is not old title which is transferred to the new owner, but only a title corresponding in quantity and quality to the old title.
Limitation bars the Remedy – It is a well-established rule of law, that in cases which are not governed by Sec. 27, limitation merely bars the remedy, but does not extinguish the title. Sec. 27 is an exception to this principle. Thus, this section is confined to suits for possession and does not apply to a suit by a mortgagee for recovery of the money due to him by sale of the mortgaged property. The mortgagee’s remedy may be barred if he omits to sue within the statutory period, but his right is not extinguished.
Extinguishment of Right – But, in cases where the right claimed is that of ‘possession of property’ and the suit is not brought in time, it is not only the remedy that is barred, but also the right is extinguished. The result is that not only will the court throw out the suit, but also that if the plaintiff dispossesses the person in possession; he will be considered a trespasser. The principle is that when the title is extinguished, it cannot be revived by re-entry (Ram Murti v. Puran Singh AIR 1963 Punj. 393).
Essentials of Adverse Possession – The following are the essentials of adverse possession:
1. The defendant must be in actual possession, mere entries in the record of right of the defendant’s name are not sufficient. The possession necessary to find a title by adverse possession under Sec. 27 is not different in character (though it may be in duration) from the possession required to prevent limitation under Art. 64 or Art. 65. So, it is not necessary for the plaintiff to prove affirmatively physical possession of every bit of land.
2. The possession must be adequate in continuity, in publicity and in extent to show that it is adverse on the owner. It is not sufficient that some act of ownership have been done. The possession must be open, notorious, actual, exclusive and adverse.
3. There must be an intention to hold the property. If the defendant believes that he is entitled only to a life estate, and remains in possession with that belief, his possession is not adverse to that of the plaintiff who shared his belief.
4. Possession cannot be adverse if its commencement can be referred to a lawful title. Thus, the possession of a manager of a family or a guardian does not become adverse until he has distinctly repudiated his title. If a person enters the possession with the permission of a true owner then the adverse possession can only start from the time when he denies the title of the true owner and claims adverse possession.
5. The possession does not become adverse to the plaintiff when there was no notice or knowledge, or circumstances that could have given notice or knowledge to the plaintiff that the defendant’s possession was in displacement of his right. But the knowledge may be presumed from an open and notorious act of possession. It has to be seen whether under the circumstances of each case, the competitor was in a position to know, if he was vigilant, the actual position regarding the property in question.
6. Possession does not become adverse to the plaintiff until the plaintiff is entitled to immediate possession.
7. Possession of a portion of the land cannot be held to constitute constructive possession of the whole, so as to enable the possessor to obtain thereby title to the whole by limitation. A wrongdoer gains title only to that portion of land which is actually held by him.
In Manmohan Service Station v. Md. Haroon Japanwala (AIR 1994 Del. 337), it has been held that when a tenant encroached upon the portion of landlord’s property which is not part of his premise he cannot claim adverse possession in respect of such encroached land.
Burden of Proof – To base a claim on adverse possession, it is not enough to allege that one is in possession of land. Ingredients of adverse possession have to be alleged. Thus, adverse possession must be specifically pleaded and proved by the person who raises it.
Acquisitive and Extinctive Prescription –
Only the extinctive aspect of prescription, that is, prescription as extinguishing a right, has been considered. However, prescription has also an acquisitive aspect: it may also create rights i.e. by long enjoyment of a thing, one may get an absolute right and title to it. The same period of time which extinguishes one person’s right may create rights in favour of another person; rather, the operation of prescription is to transfer the rights of the former in favour of the latter.
Apart from Sec. 27, there are other provisions of law in India directly relating to ‘acquisitive prescription’. The most important of these are Sec. 25 of the Limitation Act and Sec. 15 of the Indian Easements Acts, both relating to the acquisition of easements by long, uninterrupted and open enjoyment.
Acquisitive prescription i.e. cases in which a new light is created by efflux of time, is dealt with in Sec. 25. Extinctive prescription i.e. cases in which a right to property is extinguished by efflux of time, is dealt with in Sec. 27.