Article 65: (Arts. 136, 137, 138, 140, 141, 144 & 47 of the Act of 1908):
The period of limitation for a suit for possession of immovable property or any interest therein based on title for example:
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ADVERTISEMENTS:
(a) Where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
(b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
(c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession is twelve years and the period of limitation starts to run from the date when the possession of the defendant becomes adverse to the plaintiff.
Art. 65 contemplate a suit for possession of property when the defendant might be in adverse possession of it as against the plaintiff.
ADVERTISEMENTS:
In H.B. Sharma v. H.G. Sharma, (AIR 1975 Gau. 47), it has been held that Art. 65 applies to a suit brought by the plaintiff claiming to be the owner of the property against one who is in possession the property as trespasser having no interest therein.
In Liaq v. D.D.A., [AIR 1994 NOC 350 (Del.)], it has been held that when the suit for recovery of possession based on title is filed and plea of adverse possession is taken by the defendant then such a suit which is governed by Art. 65 has to be decreed, because it is only when the defendant asserts that the plaintiffs title has been barred by adverse possession, such a suit can be dismissed.
Article 65 attracts the following suits:
(i) When a suit is filed for recovery of possession of trust property in which the defendant claims adverse possession is a suit governed by Art. 65 (C.M. Sahoo v. Commissioner, AIR 1983 Ori. 205).
ADVERTISEMENTS:
(ii) When an executor transfers the property by sale the suit filed by the legatee to declare such sale to be invalid and to recover possession from the transferee will be governed by the Art. 65 (Balmain Chandrakala Devi v. Pokraj, AIR 1963 Pat. 2).
(iii) A suit for possession on the basis of the title acquired by a sale deed and also seeking rectification of the description of the property sold is essentially a suit for possession based on title and the Art. 65 is attracted to such suit (В. T.B. Patel v. Rukmini Bai, (1968) 1 Mys. LJ 334).
(iv) A suit for possession against the defendant whose possession in its inception was permissive attracts the Art. 65 (Radhey Shyam v. Rama, 1971 All. LJ 1014).
(v) When a co-sharer files a suit for partition and separate possession or a co-owner out of possession files such a suit against the other co-owner or against his trustee, the Art. 65 applies to such suit (Raju Sarif v. SMAC Bukhari, AIR 1973 Ori. 50).
(vi) A suit for recovery of possession against a mortgagee whose mortgage has been satisfied by payment or appropriation of rent is governed by the Art. 65 (P. Pillai v. C. Pillai, AIR 1974 Ker. 102).
(vii) A suit for partition and for separate possession will be governed by Art. 65 (Md. Kaliba v. Md. Abdullah, AIR 1963 Mad. 84).
(viii) A suit for possession by the heirs of the transferor against the transferee after the death of the transferor is governed by Art. 65 (Parameshwari Devi v. M. Lai, 1981 All.LJ 397).
(ix) A suit by a purchaser at a sale in execution of the decree for possession of the property on the declaration that he was not bound by the transfer of the property and the same was collusive, fictitious and void is governed by Art 65 (Deo Narayan v. Ramnath, 1967 All. LJ 605).
(x) When a mortgagor files a suit for declaration of title and confirmation of possession of the property mortgaged after the mortgagor had redeemed the mortgage and recovered possession is a suit for possession attracting the Art. 65 (Narayan Mishra v. Mahant Mishra, AIR 1952 Pat. 421).
On the plaintiff proving title in a suit for recovery of possession governed by Art. 65 it is for the defendant to prove that his possession was adverse to the real owner. The plea must be taken in the pleading and a specific averment as to the point of time from which possession became adverse is necessary. When the adverse possession is pleaded the area of land and the age of possession must be stated specifically. Plea of adverse possession implies that someone else is the owner of the property.
In order to prove title by adverse possession it is not sufficient to prove that some acts of possession have been done. The possession must be required to be adequate in continuity, in publicity and in extent to show that it adverse to the owner. The question of adverse possession is a mixed question of law and fact. Mere possession of more than 12 years does not prove adverse possession.
In Raju v. Muthuammal, (AIR 2004 Mad. 134), the plaintiff has filed a suit for title, recovery of possession and mesne profits. The defendant is admittedly in possession of the property. The plaintiffs have raised the plea that the defendants are occupying the suit house as permissive occupier but have failed to prove such plea. There is categorical evidence that the defendants have been occupying the house for over 45 years and they have enjoyed it as their property. At no point of time they recognised the plaintiffs as the owner of the property. It is held that the defendants have acquired the title by adverse possession.
In A.S. Vidyasagar v. S. Karunanandan, (1995 Supp. (4) SCC 570), it has been held that permissive possession is not adverse and can be terminated at any time by the rightful owner. In the absence of evidence to support the plea of openness, hostility or notoriety such possession will not establish adverse possession.
In Pazhamaruthai v. M. Subramaniam, [AIR 2001 NOC 130 (Mad.)], the owner of the property gave possession of the property to his relative before going abroad and the relative remained in possession for more than 42 years. But initially such possession being on the consent of the owner was permissive in nature and not hostile to the owner. Therefore, it is held that the relative cannot claim title therein by way of adverse possession.
Possession does not become adverse when the intention to hold adversely is wanting. In Venkateswarlu v. MM Mosque, (AIR 1972 AP 132), it has been held that although the defendant’s possession might have been wrongful still if the plaintiff honestly, though wrongly, believed that the defendant was entitled to possession for life and the defendant herself shared that belief and so remained in possession, such possession was not adverse to the plaintiff, but merely permissive, as the intention to hold adversely in order to obtain an absolute estate was wanting.