 What we all know is immaculate is wide knowledge is funneled in the right way, and we all are immensely gaining in that entire process. Today's session is quite helpful for the purposes of understanding the property law and respect of possessory, mischief, and proprietary laws. And therefore we have written it as a masterclass on titles so that we can understand the several difference between all of them as to how what is the interplay. As to whether there is an interplay of limitation act, transfer of property act, specific relief act. And I can see Mr. Prabhakar, meanwhile, while we are introducing him, is just looking through the notes which he has shared with us. But I know that once he starts, it will be all 1.6 is like what you Raj had hit in England. So let's not take much time and we'll ask Mr. Prabhakar to share his knowledge in his own style the way we all enjoy it. Over to you Mr. Prabhakar. Good evening and thank you, Mr. Vikas. Happy Independence Day. The topic consists of three parts. One is possessory, prescriptive, and then proprietary. We can even say the order in which it has been coined, the topic, which is also relevant. Why I'm saying this is this, the title which we talk about in quotes consists of two parts. One is a possessory right and a proprietary right. But all cases of a title, whether it is prescriptive, proprietary, etc., it originally starts from possession. Whether it is in the Roman law or in the English jurisprudence or even the American jurisprudence. One can find that possession always plays a role in determining the title to the property. Why? The proprietary right can be traced into two or three centuries. Whereas the possessory right, the tracing is timed immemorial. The reasons of this, the registration of the properties started somewhere in the early part of the 19th century somewhere in 1820 or 25. And therefore any document which you can show your possession of the property can be only a subsequent to the early part of the 18th century and not beyond that. And therefore the possessory right always plays a vital role in even in Indian jurisprudence. In fact, I would even go to say that possessory right which we were calling it in the 19th century and 18th century as an occupancy right in respect of agriculture properties is so invaluable that it was recognized not only under the property laws but also in some of the ancillary laws like the grant made by the sovereign like a enum. Where if a sovereign gives a right by way of a enum, the proprietary right in the soil or the occupancy right in the soil will always be protected. Therefore, one should bear in mind that possession is nine points in law. What is nine points in law? Somebody would say that it is nine out of 10 except the proprietary right namely the documentary evidence. Possession is everything even under section 110 of the evidence side. Possession is works forwards as well as backwards. Therefore, if you want to define a possessory right or a prescriptive right or even a proprietary right, the starting point is the possession or who is the first occupant of the property. Always in cases where there is a rival climate, one climbing as a prescriptive right or another climbing a possessory right, then we can dwell upon the right in an order namely proprietary right then possessory right and prescriptive right. But a proprietary right as I have said earlier goes beyond even the proprietary right which we talk about nowadays named the documentary evidence showing your title to the property. The occupancy right has got a great role to play and continues to do so, notwithstanding some hibernations during 2009 and 2010 winners, Deliver Bandari gave a shake to the entire possessory right concept by taking a cue from the European judgments that it is a violation of human rights. I will come there with you, we go along. What is a prescriptive right and how it is different from your possessory right or an arduous possession? A prescriptive right is based upon a fact of possession which is judicially recognized by the courts for more than several centuries. But an arduous possession is based upon a statute under the English law or under the American jurisprudence as well. But in India, we always confuse this arduous possession with the right of prescription. Even though it overlaps to a certain extent, these two under the European law, the American jurisprudence or the British common law principle are two distinct concepts. Then what is a prescription and what is an arduous possession? Arduous possession, as you all know, commences in wrong and ends in right. If somebody is in possession of the property for a particular period of time, now the law says that it is solely as in case of a private individual and in case of a public, it is 30 years. Whereas in case of a prescriptive right, this is based upon a judicial decision. We will always be wondering whether the concept of arduous possession is covered under any statute. It is not covered under any statute but it is a common law principle as it is the prescriptive right. But the difference is this. In case of an arduous possession, there is a statute, namely the law of limitation speaks about that. Namely, after a particular period of time, you will lose your right. But in case of a proprietary right, this is not a prescriptive right, this is not so. It is only a judicial decision and not depend upon the law of limitation. I can give you an example. If you have not prescribed title to the property by arduous possession, then can anybody prevent you from taking your property? If somebody has trespassed onto the property? Yes. There are principles, common law principles like latches, delay and even a stopper. In case where you are the owner of a land, you are living in the neighborhood, somebody trespasses onto the property and puts huge construction in the property. He thinks he is the owner of the property. You think that even though you have got a proprietary right, you are under the impression that somebody is constructing in his own property and keep quiet and actively encourages this man to put up construction. And if you encourage this man to put up construction, yes, you have got a right to go ahead and put up construction. Then section 115 stopper will come into play, a representation made and being acted upon by other party, you cannot go back. This is a right of under the principle of stopper, acquisitions and latches, notwithstanding the fact that Toli's spirit has not collapsed, notwithstanding the fact that somebody has prescribed title to the property, still you may lose and it can be arrested on the principle of a stopper or acquisitions and even it can be called as a prescriptive right. Now, why this prescriptive right is so distinctive from the adverse possession? Again, very well, slight sum of the decision, one of the oldest of the judgment of the state of New York in Scotland versus Manhattan, where the Lordship would swear that prescription is based purely upon possession and whereas adverse possession is purely based upon limitation. The reason is this, sometimes we can lose the property even if the other man has not prescribed title to the property. I'll come there in the later part of the discussion and this principle has been touched upon by her Lordship Indira Banaji in a very recent case, but not making any distinction between adverse possession and prescriptive right. I'll come there. The second judgment of the American state of New York High Court is freedom versus half faster. 32 New York Journal 419 where also this principle has been retreated. I can very well say that in one case by the Gujarat High Court reported in 1988 Gujarat page 31 in Vora Amini by Ibrahim versus Vora Tahrally Mohamed Ali, where the Lordship took the view that you lose right to the property on the basis of prescription, not on the basis of limitation. I can also quote from my memory, there were two or three judgments on that aspect from the Madras High Court, which I have not cited in the North. One is AIR 1951 Madras. If this Lordship go in the manner in a division bench judgment, followed by AIR 1965 Madras. Again, a division bench. In both the cases, the court has held that even though the defendant has not prescribed title to the property, you lose your right because of latches, acquisitions and stop. In 1965 Madras, the division bench went on further and said that you are not even entitled to compensation as it is a natural corollary, that once you lose your right to get back the property as a natural corollary, you are not entitled to compensation also. Even though this principle has been unsettled by the subsequent decisions of the single judges of the High Court, where in the granted compensation. But the point at issue is, even if the other man has not prescribed title to the property, still the person with the owner may lose his right. This is reiterated in AIR 1988, Pujarat, p. 31. Now coming to the first aspect of the legal position. What is the possessory rights? Whether it can give title to the property. What is our title is all about? We are not on a criminal law. Title, one should probabilize these in civil law jurisprudence, the probabilities based with the court. If title is under a scanner, it can be by two types. One is absolute title and another is a comparative title. Or what we can say the absolute title in cases where there are rival claimants timing title to the property. I can do an example. Suppose the plaintiff come for the case that he has got a right under a gift deed or a settlement deed or a testimony disposition like a will. In all cases, if the plaintiff fails to prove the due execution, attestation, etc., as contemplated on the law, either it is a gift deed or a will. Then the other man probably being a legal and maybe entitled to the property. Therefore, in those cases, the title has to be proved absolutely. Meaning that if you pitch forward a case on the basis of a will or a settlement deed, the plaintiff must prove in accordance with the law, namely section 68 or in case of a will section 63 of the succession act. If you fails to do that, then the defendant can also be a legal and entitled to the property. The point that issue is, in such a case, the possession of the plaintiff may not be relevant because he denies the title from a document and either the vendor or the settler or the testator might have been in possession of the property and this possession may endure to all the legal acts unless you are able to establish that the line of succession has been really broken by the executed stating that there is a will or a settlement or a gift. In such cases, the title has to be decided absolutely. Namely, you have to prove your absolute ownership over the property. But this absolute ownership is not applicable in cases where you are pitch forwarding a case of a right against a total stranger or a person who has no right over the property. Assuming for a moment, you have got possession of the property for some time or quite a long time and you have got some documents but you are not able to prove your title to the property but you are able to prove your possession for quite a long time. And this possession will be elevated to the status of a title insofar as the other man is concerned who is a total stranger to the property and he has no right over the property and even in such cases, if the person who is in possession loses his possession, namely by way of a trespass before defiling the shore, then he can also on the basis of his previous possession, recover the property. Therefore, title is not absolute in all cases. If there is no need for you to prove the title absolutely in all cases, it all depends upon the person against whom you want to pitch forward your title. If it is a total stranger, then there is no need for you to prove an absolute title. There are some cases where even the High Court with the regret I would like to say refused to entertain the second principle that even in case of a stranger, if you put forward a case of a title on the basis of the document that you are not able to prove your title, but you are able to prove your possession still, you will lose your right on the basis that the plaintiff has to prove his case and he cannot understand that the weakness of the defendant. Quite unfortunate in the sense, weakness of the defendant is different from proving your possessory right over the defendant or against the defendant. Weakness is something else, namely that absolutely you have no right over the property, you don't have any title, you don't have any possession and then you want to point out no, the defendant has no title at all, that may not be enough. But between title possession and lack of title and possession on the part of the other man, I am of the view that even if you don't have title to the property, the possession comes into play and you can take the property. Am I right on that principle? There is a judgment, AIR 1966 Supreme Court, namely the decision, if I remember correctly Sarangadeva, Sarangadeva Periyamadam versus Rama Swami reported in AIR 1966 Supreme Court pages 160. Decision of three judges, a very interesting judgment. In a sense, a person was in long possession of the property, the property belonged to a mutt, he prescribed the title and he said that I have perfected my title. Subsequently, the mutt took possession of the property. On the basis of this possession, mutt fought the case on the ground that they are the owners of the property. The person who has perfected his title to the property follows suit for declaration and possession stating that I have prescribed title to the property by adverse possession against the mutt, a religious institution. And once my right is perfected after a particular period of time, namely 12 years, then my title become absolute and the fact that the mutt got the property again purely is a case of a trespass. I am not sure whether any of the judges today will entertain this type of view. The honorable Supreme Court took the view that once a person in possession of the property for a statutory period and if he has perfected title to the property, his title becomes absolute. And if he is dispossessed by the very same man, who is the absolute owner, still the absolute owner having lost, having its rights, having extinguished, must hand over the property to the person who is in possession. That's how the possession was safeguarded by the courts all these years. But the concept of possession, how the court has to entertain, we have been in a bad phase for the past 20 years before the slideship Arun Mishra put a stamp on the such thinking, namely to weed out adverse possession itself. But the long line of judgment should go to show that the possessory right as such was right which can be pitched forward against anybody except the true owner. A person in possession even can ask for a declaration of his possessory right except against the true owner. Then who will be the true owner? It's not a weakness of the defendant. Suppose I said that I am in possession of the property for some time and I established that I am in possession and then this possessory right can be used against everybody except the true owner. Then the person or the defendant who says that he is the true owner must establish that he is a true owner. Can we say that it is a weakness? I will not go into the such cases to say that it is for the plaintiffs to prove not at all. But quite unfortunate recently some of the judgments emanated from the Madras high court as well as from the other high court should say that the plaintiff has to prove SK and one cannot take the weakness. The weakness is different and the shifting of bonus is different. In cases where a person is in possession he is presumed to be the owner of the property and the owner shifted to the other side to show that he has got a better title. The reason is that the question of better possession doesn't arise. The possession lies in the realm of the plaintiff to prove and if he has proved such a possession. Then the bonus shifts. The reason is possession is nine points on law. It is the presumption of a prima facie title to the property and if somebody else and come forward and say that I have got a better title. The bonus is upon that person to dislodge the case of the plaintiff. The court cannot shift his responsibility and say that I don't want to see the case of the defendant because he is a defendant you have to prove his case. In cases where a person comes to the court on the basis of title, what the court has to find is whether he has got title. Title may be a proprietary title or even it may be a possessory title. A person who pitched forward a case of proprietary right may not be in a position to prove his proprietary right. But still he might have been in a position to prove his possessory right. In such cases, then possession comes into the fore and the person who is in possession can very well maintain the sword even for a declaration of his possessory right. Not possession of induction or a permanent induction. Even he can claim a right on title. So long as the other man is not in a position to prove his better title. Always you will say in a soup for injunction, a person in possession is entitled to get an order of injunction. Again the whole world except the true owner. Why this concept was there is that a true owner cannot be injected from proceeding further is entitled to take the property back. In such a cases, unless that possession ripens into that of a ownership. The question of preventing the other man from taking the property does not arise. Therefore, whether this possession ripens into that of a ownership is all depends upon two things. One is title. Secondly, the other man's lack of title. If the other man has no title at all, then the court has to see that and say that the defendant has no case and the plaintiff has no title. I want to dismiss the suit. What will happen to the property? Will it hang in the air? Therefore, in such cases, where a person is not in a position to prove his proprietary right. But as proved his possession, then unless and until the defendant comes forward and prove his case of title, the plaintiff is entitled to a degree on that score. It is not a question of weakness. Now coming to a property which cannot be normally possessed, a vacant site or a barren land. In all those cases, possession follows title. The person who is the owner and if he proves his proprietary right, then he is entitled to the property possession follows title. The discussion on that aspect can be seen in 2004-10 SEC, page 7, double line. Karnataka Board of Work versus Government of India. In the previous case, the Government of India took a case of an adverse possession and they got the stick from the Honourable Supreme Court. In that case, it was analysing in detail that a person who is the owner of the property is presumed to be in possession. Non-user of the property won't affect. What is the non-user of the property? I can always even sign, in case of a prescriptive right and a proprietary right, the distinction is this. Proprietary right is in respect of a possession of property. Prescriptive right is based upon user. What is the difference between user and possession? Possession is in respect of the property in exclusivity or in exclusion of others. But in case of a user, where a prescriptive right as a prescriptive easement or the easement and license act, etc. That right is a limited right. Namely, there will be the concept of a dominant owner and a survey and heritage. And the person who is the owner of the property is entitled to the property subject to the right of easement or a prescriptive easement, whatever you call. But he will still retain that ownership. But in case of a possessory right, once that possession right wins, the man who is the owner will lose his right over the property. Therefore, in case of a possessory right, it is the, in case of a proprietary right, it is the case of a possession of a particular property. In case of a prescriptive right, it is the mere user of a particular right. There is also a difference. User also depends upon the grant or how you use the property because it is different from an absolute possession. If you are an absolute owner of the property, what is the ownership? Ownership is to enjoy the property, to put up whatever you want in the property, to transfer that property. Three, you have got your right of destruction. These three things are vital in case of title. Namely, you should be in possession. You are entitled to use that property. You are entitled to transfer by such a usage. And three, you have got a right of destruction. Namely, if you have put up concession of the property, you need not seek anybody's permission to destroy that property and to build up something else. Therefore, these are the three things which is required in case of title. And in case of prescriptive right, it is only a user. Suppose you are using a particular place for a particular purpose as a licensee. And then you don't have a right of exclusive possession because somebody else can also be using that. Then you don't have a right of destruction. You don't have a right of transfer unless the document suggests that you can write this easement, easement goes to the land. Therefore, the limited right can be transferred, not the exclusive right of the property, right of the property. These are the distinctions which are always available. Then the next case is 2004-10 SEC, page 65. Amrendra Pradhaap Singh vs. Staj Bahadur Prajapati. That was a case where the question of possession ripening into an adverse possession was considered. The Honourable Supreme Court has found that the adverse possession can also be by way of a default and a neglect. Namely, me, Nettan, Nett Prakario. These are the three things which are required. The possession should be open, adequate and hostile to the true owner. Whether it is to be knowledge of the true owner, I am doubtful. There is no need for you to impart any knowledge to the true owner except in case of an outster. Again, many of the high positions, namely uninterrupted, open and hostile positions should be brought to the knowledge of the true owner, not at all. Your possession should be open and the owner should be vigilant enough to find out that. In one case, if I remember in 1921 Privy Council, when the concept of adverse possession was canvassed the Honourable Privy Council, Jokulali has also said that in cases where a person is in possession of the property of an other man, need not go to the top of the church and blow the trumpet to say that I am in possession of your property. That is not the job of the person who is in possession. What is required under law is you should be in possession continuously, uninterruptedly, openly and hostile to that of the true owner. What is this hostility? Hostility is that if you acknowledge the right of the other man, then the question of adverse possession will never commence. Suppose you are in possession of the property in the presence of a license, in the presence of a lease, in the presence of an issue factory mortgage. In all those cases, your possession is referable to the other man's title. You acknowledge the title of the other man and therefore you cannot make out a case of adverse possession unless, where you disown the status of a licensing, you disown the status of a mortgagee, you disown the status of a leasee and say that from this day, even though I was a licensee, I was a mortgagee in possession of the property at the earlier point of time. Say from 111980, my possession has become adverse. It was brought to the knowledge of the other man also. Then in such a cases, there should be a plea that you have to acknowledge the title at one point of time and then to disown the title or refute the title to make out the case of a possessory. But the many quotes have got themselves confused with the reward to adverse possession and say that in all cases, you must acknowledge the title and you must take a plea of adverse possession. I don't think this is the right approach. In fact, if you go through the IOD judgment, after a full reading of the judgment in two lines, the court has said that the Muslims did not take the plea of adverse possession seriously, thinking that they have to acknowledge the title of a tempest. No law has been laid on that aspect. But my view is different because if you want to acknowledge the title in all cases, you can't prescribe the title by adverse possession. In all cases, you can't expect the defendant to come forward only with a plea of adverse possession or a possessory right against the true owner. In many cases, we practically find that the defendant will trace his own right to the property. He will trace his right to the property, namely a sale deed or any document. And at the same time, you will also say that my possession against the plaintiff is adverse for some reasons. I can give you an example also. Suppose a person has traced his title to 100 years, namely two or three sale deeds. Whereas the plaintiff will come forward and say that on the basis of some documents, I am the absolute owner, my predecessor has got title, therefore I am entered to the property. The defendant in such a case, he has got some documents for 100 years. Can you expect him to disown all the documents and then to pitch the case of adverse possession alone, admitting the title of the plaintiff is a sheer stupidity. No lawyer will take such a plea. If no lawyer can take such a plea, how the concept of adverse possession can survive? Is it so limited in cases where the defendant knew full well that the plaintiff is the absolute owner and then I have prescribed title to the property? I don't think so. The reason is this. There is always a right for the defendant to take an alternative plea. If you make a plea on title, proprietary title or even a possessory rightful, if he traces title to the property on the basis of some documents which is not referable to the plaintiff, plaintiff traces title to 1A. Defendant traces title to B. And at the same time, the defendant wants to say that I am the owner of the property. I have purchased the property from the producers of so-and-so and there is some document namely B. And he can also say, not understanding my purchase, I have been in possession of the property for a pretty long time. I have prescribed title against the plaintiff. This is not destructive. This is not the question of acknowledging the title of the plaintiff. It is not mandatory for any person to acknowledge the title of the plaintiff in such a cases to make out a case of adverse possession. This concept of a person in possession assumed to be the owner can be referred to an interesting judgment of the English court in Perry versus Clisall. Perry versus Clisall. In that case reported in 1907 AC page 73. It was held that a person in possession assumes the character of the owner. This judgment has subsequently, if I remember correctly, in 1951 Supreme Court, it has been approved by this honorable Supreme Court that the view of the Privy Council in the English judgment in 1907 AC page 73 is good even in India. The next judgment which I would like to talk about is the extinction and article 64 and 65. How the possessory right will ripen? How it will extinguish? One can say that all possessory right is reasonable limitation act. Limitation act before 1908, if I remember 1873 or 1773 was an old act. In that old act a person in possession of the property for mere six years, I tell you mere six years, his possession will ripen into the title. And then people thought that this six year period is too small a period to perfect title and therefore it has to be enlarged. It was enlarged 12 years in 1908 limitation act and article 132 and 134. And in respect of public property, it was raised in 230 years. But the fact of the matter is that this 1908 act speaks about two things. That a person who has got title to the property must also establish that he was in possession of the property within a period of 12 years at the time of filing the suit. It is too broad, namely he must prove title, title is not enough. He must prove possession that he was in possession of the property within a period of 12 years before the filing of this suit. But the law was changed in 1963. When the new act came, article 64 and 65 came into being and in case of a suit on possession, the person has to prove that he was in possession within a period of 12 years before the filing of the suit, article 64. Article 65 would say that if a suit is based on title, then once he proves title it is enough, the adverse possession will start from the day the defendant start enjoying the property adversely and it has reached in 12 years. This was the distinction. What was the distinction in originally the person has to prove title and possession. That he was in possession of the property 12 years prior to the filing of the suit, the burden is only upon him. But when article 64 and 65 was enacted 64, if it is based upon possession and dispossession, article 64 will apply and then the person has to show that he was in possession of the property for 12 years. If it is purely on the basis of title and not on the basis of previous possession, then 12 years from the day when the possession of the defendant becomes adverse under article 65. This was loosely discussed by a slide shift in a judgment reported in AIR 2004 Supreme Court. I have not cited the judgment. This slide shift, Kapadia went on to say that which one of the article will apply whether it is article 64 or 65. He said in all cases where the plaintiff makes a plea of possession and dispossession at a particular point of time, then the cases will be covered only under article 64. Therefore the party must prove that he was in possession of the property within 12 years before the filing of this suit. Article 65 is an exception and it will not be applied in all cases. And his slide shift, I remember, used the word however camouflage you have drafted the plaintiff. The real intention of the party is from the pleading that there was a case of possession, dispossession and then coming to the court. Article 64 applies then he has to prove his dispossession within 12 years. If you want to apply article 65 then please do remember that if you make a plea of trespass at a particular point of time, you must establish that. You cannot then bank upon the title and article 65 can be involved. In many cases, I have come across many of the high courts have done that mistake repeatedly that they will take into the case in all cases where a person has filed a suit for declaration and possession, 65 will apply. If you file a suit only for possession, 64 applies. Astonishingly, neither article 64 nor article 65 speaks about a declaration. The declaration comes under section 58 and 59, which is a period of three years is given. Therefore, if a declaratory right is accompanied by possession right or some other right injunction, then this article 64 or 65 has to be 15 and not 58. Then they settle the position. But the point at issue is once an allegation is made in the plaintiff that there was a case of a trespass, then it is all due. You have to invoke only article 64 and you must approve your possession. And the next decision here, 1981 Supreme Court, 1165. Kishit Chandra Bose was a commissioner of Ranchi. Those are the case where the possessory right and what is the nature of possessory right and what has to be pleaded by the parties. The court said that a person in possession of the property, if it is open and hostile, it is enough. There is no need for you to bring your possession to the knowledge of the true owner except in cases of ouster. Where the ouster will come in case of a co-sharers or joint owners, then possession by one person is possession in respect of. Therefore, in such cases, you must make a plea not of mere adverse possession for the ouster. In such cases alone, your possession or an hostile title must be brought to the knowledge of the co-sharers or the co-owner of the property. I remember there is a judgment in the year 1967 Punjab and Ariana speaking about this possessory right namely ouster. There are 10 points how it has to be approached. The point is therefore knowledge is not necessary in case of a stranger. It is only in case of a co-owner or a co-sharer that has to come into play. Then the next decision is 2006-07 SEC, page 570, Anjanapur versus Swamalinga Parv. That was a case where the true owner of the property came out with a case that I was not aware. I was ignorant of my property itself. I was not even aware that this property belongs to my family and he comes for a road with a sword. The court said that ignorance of the other man's possessory right by the owner is immaterial. It will not prevent the running of time against you. The reason is this, you should be vigilant. You cannot say that I was keeping quiet, I was not aware, etc. Then the time will run out. Right will ripen into the absolute possessory right. What the Lasha would say, capable of being known is enough. That is the language used. If somebody takes some adequate precaution and it is enough if he is able to find out, he can find out that capability to know is enough and he did not know it at all. Therefore again the knowledge is immaterial. What is material is this person if he is a prudent man, an ordinary reasonable man, he could have found that out. That is enough for prescribing the right. Now coming to two decisions which I have set the clock back due to some interpretation which I think is not right. Year 2009, Supreme Court page 103. Yemaji Vahaji v. Bikabhai Gangarbhai. And the second judgment, State of Haryana v. Mukesh Kumar 2011-10 SCC page 404. Both the judgments are by Lord Shiva, Delivered Bhandari. For the first time, Lord Shiva Delivered Bhandari of the Honourable Supreme Court referred to some English judgments and said that in fact he has extensively quoted judgments in J.A. Pai v. U.K. of his large-ship justice New Burger and Pai v. Grams that was reported in 2003 WLR 242. What happened to us is this, Justice New Burger was forced to go into the question of the right of possession as opposed to the human rights because the UK was part of a European Union. And then he was of the view that the right to possession of an immovable property, losing it by adverse possession is violated by one article, one of the human rights because the right to property is also a human right. Extensively this judgment was quoted by his large-ship Delivered Bhandari stating that the law has changed. There is a new thinking, etc. Quite unfortunate, quite unfortunate because for 10 years the clock has been set back. For no fault of anybody in India. I'll tell you why the reason is, the entire fulcrum of the decision of his large-ship Delivered Bhandari was based upon the decision of his large-ship Justice New Burger in Pai v. U.K. and Pai v. Grams. In both the cases, what happened was, Justice New Burger was forced to take into account the right to an immovable property, just opposed to that of a human rights violation under article one of the European Union. He was of the view that the losing a right to a thief or a person who is in a rank encroacher or a trespasser is a violation of a human right as contemplated by the article one. These two judgments of his large-ship Bhandari emanated from this principle of the English law. But quite unfortunate, this decision, namely Pai v. U.K. of his large-ship Justice New Burger was reversed by the Grand Chamber of the European Human Rights. In fact, in 2005, it's stating that the possessory right or an adverse possession is not violate you of the human rights charter of European Union. The entire foundation on which the edifice of his large-ship Delivered Bhandari was built namely that of Pai v. U.K. and Pai v. Gramps, these two judgments of his large-ship Justice New Burger stating that there is a violation of the human rights. He wants to stretch the principle brought to India and then suddenly, suddenly all the articles started thinking that this right by adverse possession is not good. You are protecting a thief. You are protecting an encroach. You are protecting a trespasser. Forgetting for a moment, any right to property starts with possession by one person. Whether it is a Roman law or an English law or even the American jurisprudence, it all speaks about the fact that any right to property starts with the first occupant. Therefore, can we call him as a thief? Can we call him as an encroach? Second, the law wants to have some time limit so that the society can move on further. If this type of judgments comes that the possessory right has to be negative, then it will open the Pandora's box. There won't be any entities. Hundreds of years there will be litigation. At one side we want to say that we have to reduce the litigation, use technology, etc. And at the same time, we want to say that you can't put the limitation. Let them come. We will teach a lesson. That's not the idea of law. The point is, therefore, when the decision of his large ship, Dalivir Bandari is based upon a decision which has been subsequently reversed. No court in India has taken note of this fact till today has not taken note of this fact. But, quite unfortunately, in 2014, his large ship Sikri came out with another Google. There is a large ship A.K. Sikri with a due respect to him. He took a stand that the plea of possessory right cannot be won as a plaintiff. But you can only defend that right because it is only a shield and not a sword. Quite unfortunate that he referred to some 74 or 75, if I remember correctly. A judgment of the Punjab and Haryana High Court in which it has been stated that because Article 65 said that only a superior of the defendant, the word defendant is who's run the limitation act. The statue of limitation is for preventing a man to come to the court. But the remedy of others' possession and the prescriptive right are the common law. But before this large ship Sikri's judgment, there were a lot of judgments of this honourable Supreme Court which they say that the possessory right can be declared for a person who comes to the court as a plaintiff. But this went on for some more time. Unfortunately, it came before the venture of his large ship Arun Mishra. Where is the large ship? In Ravindrakaur Gravel versus Manjith Kaur, reported in AIR 2019 Supreme Court 3827, AIR 2019 Supreme Court Page 3827. As large ship analysed all the judgments on that aspect about the adverse possession, in fact it went into another aspect also. Namely, even in case of a religious institution, possession can be prescribed. That was a old law reported in 1966 Supreme Court Sarangadeva Periyamadam's case. Therefore, the law has been restored to his new position by his large ship Arun Mishra in Ravindrakaur's case. Suddenly we find that in the period of two years, many courts before the trial court as well as they started entertaining the plea of adverse possession which they don't want to go because of the judgment of his large ship Daliweer Baddari reported in 2009 and 2010. Ultimately, the final nail in the coffin is that of the IODS case where the large ship said that the possessory right is an invaluable right. If you went through the entire 1045 pages of the Supreme Court, it would say that there are issues which have been raised on either side but there is no proper title to the property in favor of the temple or climate of the temple nor in respect of the climate of the mosque. The court ultimately went into the position of possession and appealed the right to possession, namely the temple was in existence much prior to the mosque. A judgment which is said that an idol is not a minor. A judgment which is said that the lost grant is a principle which cannot be extended to the right of the people who claim it is a mosque. The reason was this, the lost grant principle can be applied only in cases where nobody has got title to the property and somebody has got a right of possession. Remember, this is a case of an absolute necessity of upholding the right of possession if there is no valid grant in favor of anybody for that matter. Suppose two parties fight and both of them doesn't have title. But some third party has got title. Then the question of lost grant doesn't arise at all. The lost grant principle which the people who supported the mosque raised the issue before the Honorable Supreme Court and the Supreme Court rejected that idea on the ground that it is not a case of anybody else. Nobody else has got any right. The right of possession which predates three or four centuries or five centuries by itself will happen into title. That's what the Honorable Supreme Court has said. That is Siddique v. Mahanta, Suresh Das. I think some of the judges, a portion of the judgment has been reported. If you want to read and to be thorough on the possessory right, go and read the judgment of Ayodic. Not only of Slashiv, the Supreme Court, but also three volumes of the Allahabad Ayod Lucknow bench. But three judges have took a view about this possessory right in three different ways. One of them is Slashiv Vinod Sharma came to the conclusion that the Supreme Court has said that the entire property goes to the temple on possession of possessory right. Whereas, Sudeer Agalwa came to the conclusion that he got only one-third right each on the basis that both of them have got some possession. This was also accepted by Slashiv Ayudha Khan when he said that all the three have got some right. Ultimately, the Honorable Supreme Court did that nobody has pleaded the case of partition, which I find that may not be correct. If a person comes to the Court for declaration and possession or injunction, and the court finds that the plaintiff is not entitled to the entire property, but only a portion of the property. And if all other sharers are available, the court can very well grant the relief of partition because the relief of partition is a lesser relief than that of title. That was the principle under which is Slashiv Sudeer Agarwal and Ayudha Khan took the view. That is one-third can be allotted to each. But on principle, the Supreme Court considered that there was no plea and therefore we can't entertain that plea. What has been said by Slashiv Sudeer Agarwal and Ayudha Khan is that to put an end to all the problems, he said that let them take each one-third on appreciation of evidence, they may be wrong. But on a legal plea, even now I am of the view that the High Court was right in coming to a conclusion that in a suit for declaration and injunction, the court can grant a degree for partition. And now the possessory right as an alternative relief. I was touching upon that subject. Straight away I will take the decision. In 2009, 13 SCC page 229, Asvatthama v. Prakash, 2009-13 SCC page 229, Asvatthama v. Prakash. There is a very interesting judgment of Slashiv Pravindran known for his knowledge of the civil law. Slashiv would say that it is not as though a person cannot take the inconsistent plea of title and adverse possession simultaneously. He can take. But there are cases where you can take and there are cases where you cannot take. Slashiv would say that a person cannot take the plea of title and adverse possession. Plea of title and adverse possession in cases where a person, if he traces title and possession to the very same person to the very same point of time, namely the plaintiff, then he cannot take such a plea. Suppose the plaintiff comes forward and says that I am the absolute owner of the property. The defendant traces title to the plaintiff and traces title of adverse possession to the plaintiff himself. Namely, in cases of mortgage or a lessee to the plaintiff, you say that I am the owner. I am also in adverse possession again the plaintiff because of this need or mortgage. That is not possible. Slashiv was very clear that only in such a cases where I trace, where the defendant traces his title to the defendant, he cannot take the plea of adverse possession as well. But in cases where a person traces his title to some third party, for three generations, I am in possession of the property. My great-grandfather purchased the property from X and X purchased the property from Y to Z. And he traces title, I am the owner of the property and at the same time, notwithstanding all these titles, my possession again the defendant is adverse. Why not? Why you should not take such a plea? In all cases where you want to bring forth a case of possessory right, you have to trace your title. That is a practical difficulty. Then you also say that my possession again this man is adverse. The reason is just very simple. Adverse possession or a possessory right is talked about only as against the plaintiff who has come forward with the assume. Whereas my title is referable to your third party. These two are not inconsistent. This is an alter of the plea. Slashiv Ravindran succinctly came out with the decision. But what you would say on facts is that in such cases, in that case he has not prescribed title with adverse possession. I go by the title. That is a different issue. The second judgment on that aspect is Rame Gouda versus Varadappanayidu. 2004-01 SCC page 769. The question of alternatively was considered. The court said that title and alternatively can be taken. Once you have to see the pleading and see whether the title and the adverse possession are traced to the very same person, namely the plaintiff or plaintiff's predecessor and title. If it is not, he is entitled to such a plea. If it is so, then he is born. The next aspect on the question of a presumptive right. The person in possession is presumed to be the owner. Very interestingly, one case came from the Supreme Court in 2000. AIR 2020 Supreme Court, page 3688. AIR 2020 Supreme Court, page 3688. Edelwees Assess Management versus Vermal Swami. Edelwees Assess Management versus Vermal Swami. AIR 2020 Supreme Court, page 3688. An interesting case. A person was in possession of the property. He obtained a patta, what we call in the North India as a kattah or something like that. The revenue record stood in the name of the person who is in possession. Normally, we think that patta is not a document of title. Maybe a document of possession, a document showing possession. The court went on to say in their judgment that patta shows possession. Possession shows that revenue. In case where the defendant has no right at all to a property and a person produces a patta and says that he is in possession and he establishes possession. What the Honorable Supreme Court say in such a case is no doubt patta is not a document of title. But patta can be taken for proof of possession. And if a person chooses possession, possession emanates from title to property. Therefore, you can't brush aside the right of possession saying that it is a... I won't say the case, I won't see the case of the defendant at all because the court is recruited from seeking the weakness. Patta is not a weakness shifting the owners. Coming to the two latest judgment are very interesting. One is AAR 2020 Supreme Court, page 4321. AAR 2020 Supreme Court, page 4321. Naseer Mohammed V. Kamala. Naseer Mohammed V. Kamala is large ship Indra Banerjee. This is a case where the Honorable Supreme Court came to a conclusion that a person has to prove title under possession within the period of limitation. As I have said that Article 64 may apply in such a cases because you say if a person, I am in possession, I have been dispossessed the defendant has trespassed at a particular point of time I am coming to the court then the case has to be fit in under Article 64. Under Article 64, the party has to prove his title and his possession within 12 years. The Lordship would say in such a case, that was a very interesting case in the Senate the defendant did not take a proper plea of adverse possession. There was a great sentence in the written statement. What the Lordship would say, there is no need for us to go into the question of adverse possession at all. The plaintiff has come to the court, the plaintiff must prove his title and he is in possession of the property within a period of 12 years. If it is not so, there is no need for us to go into the question of adverse possession. It has even structured the principle further, adverse possession need not be pleaded at all. Exact word birds need not be pleaded. What the Lordship would say, adverse possession is an inference from the facts. If I am able to establish by way of some document to evidence or oral evidence, etc. that my possession is after all adverse, there is no need for me to plead exactly. I have perfected my title by adverse possession and prescription, etc. That's what the Lordship would say. The very interesting judgment in the Senate that in all cases where the I courts, DC courts and the trial courts, if there is no proper plea, what is the proper plea according to the lawyer courts, you must plead from date. Exact date must be given. These are all not necessary in all cases. Exact date, year, month of your possession commencing as adverse will arise only in cases where the defendant says that I am in possession of the property as a lessee of the plaintiff. I am in possession of the property as a mortgagee under the plaintiff. I am in possession of the permissive occupier under the plaintiff. In all these cases, the party must disown its status as a lessee or a mortgagee or a licensee and then should start enjoying the property adversely. In such cases alone, the exact date and year of possession. In cases where you trace your title to somebody else and try to pitch a case of a possessory right against the plaintiff. You have to prove the documents. There is no need for a specific plea. Why? I tell you why. In the first set of cases, your possession is referable to the plaintiff. You have been in possession under the plaintiff on some color, namely mortgagee or lessee. The plaintiff will be thinking that your possession is only that of a mortgagee or a lessee or a permissive occupier. In such cases, you must plead when you have disowned such a right and then started enjoying the property adversely. In such cases alone, you have to stick to one, kick the other, stick to one, kick the other, but not in all cases. But if you take a plea independently, if you make a plea of adverse possession against the plaintiff, but title against the third man, then there is no need. What is required is you can defeat the right of the plaintiff by showing your possession beyond the period of 12 years. The exact date in such cases is not necessary. Though courts have confused themselves, these two concepts, please keep in mind that the right by adverse possession is not a shame. Just imagine, before 1908, a person in possession of a property for six years is entered into the property. Those who are the days, we don't have an exposure to technology. We can go and verify the property. The plea was so small. Now, it is 12 years. The technology is there. Nobody will allow somebody to enjoy the property adversely for 12 years and keep quiet. Instead of reducing the period, in 1963, it's all right, we have increased the period to 12 years. Now, if you see Slashan Dalivar Bhandari's judgment, there was a clarion call to the parliament area that this 12-year period must be increased at least. That was the second judgment. When you thought that the first judgment did not get the residence in 2009, namely, Hema Ji's case, in the next Mukesh Kumar State of Baryana versus Mukesh Kumar, he pictured a case of at least increase the period. There is no need at all. There is no need at all. Now, coming to the last aspect of this thing. One of the interesting judgments of the Slashiv Tarun Chatharji reported in AIR 2009 Supreme Court, Kalyamurthy and Anadhar, Kalyamurthy and Anadhar versus Pai Gauri, Thaikal, Kalyamurthy and Anadhar versus Pai Gauri, Thaikal, Vakth and others. AIR 2009 Supreme Court, page 840. That was a case where two of the limitation acts were considered, namely the 1908, 1963 and how the possession will ripen. What happened was in the Vakth Act, section 107 was amended stating that in case of a suit for possession, the limitation act will not apply. Then this was taken into account to show that as there is no limitation, Vakth filed the suit at any point of time. The difference taken was that the right of the Vakth has all been extinguished even under the 1908 Act before the 1963 Act came into force. Why this was taken? As I have said earlier that under the 1908 limitation act, you must prove title as well as your possession within 12 years. If you are not in possession for a period of 12 years before the 1963 Act came into force, then that right will ripen into ownership. Then you can't recover the property. Subsequently, the 1963 Act came. 1963 Act, there is a market difference with regard to suit on title where the possession of the defendant should be 12 years. But this act went further, this came where it was 107 of the Vakth Act has been taken into account where the limitation act was taken out of the contest. It was argued before the court that the limitation act is not there. Therefore, they are entitled to properties. Archive Tarun Jatangy went into the entire gamut of issues and came to the conclusion. The right of the Vakth have all been extinguished under the old Act of 1908 before the advent of 1963 Act. In 1963 Act, even though there was a news article 65, you are right by extinguishment, you are right based on somebody else that somebody else is entitled to the property and you are right already vested on somebody by way of a possessory right. It cannot be taken away by the limitation act 1963, leave alone section 107 of the Vakth Act. The Lordship went on to say, once there is a vested right, once your right is extinguished. That was article 28, new article under 1908, extinguishment is under article 28. In 1963 Act, it is article 27, both of them speaks about extinguishment. Now, taking this Lordship Tarun Jatangy's judgment forward and read with the Lordship Arun Mishra's judgment as well as Indra Banerjee's judgment, I am of the view that we have come a full circle. The possessory right has been restored. In cases where a person is in possession of the property for a period as contemplated in the 1908 Act and is perfected his title, extinguished somebody's right even before the limitation act 1963 came into force then his right cannot be taken away. The Lordship would say that wasting cannot be taken away by a new act. It is also considered section 31 of the limitation act where the lower courts have failed to do it. Section 31 of the limitation act speaks about the right which has already circled in somebody under the old law cannot be right. Therefore, any extinguishment made under the original 1908 Act cannot be divided by the amendment or the change in the class of article 65 of the limitation act. The loss of the point which I will stop at any time is over. With regard to the last gone, which I have said, I am 1948 Privy Council page 25, Sangam Narayanan Pillayan versus Board of Commissioners for the Hindu Religious Edomance. In fact, in one of the cases, recent cases from the Supreme Court, if I remember correctly, in respect of one hill at Madurai, where both courts, the trial court as well as the high court as well as the entire hill belong to the temple by way of a lost grand, refused to accept the theory even in case of a religious institution. And the court said that the theory of lost grand cannot be applied in this community. Lost grand means that in cases where evidence is lacking in respect of title on everybody. Then we can use this, somebody is in possession of the property, mere possession by itself if shown to be for a particular period of time. Then on the basis of the last grand, he can claim title to the property. But if the property has got title deeds or somebody has got title deed in respect of some property, then the question of applying the grand does not arise. What is the difference between lost grand and adverse possession? Adverse possession can be used against a particular individual. Lost grand can be used against anybody. Namely, as I have said in case of adverse possession, it is under a structure. Namely, the limitation acts speaks about all years, now 30 years in case of a public property. But in case of a prescript divine, that embargo is not there. Even in case of a lost grand, I need not prove my possession that it is adverse to somebody else because unless you know the owner, where is the question of describing tightly against that owner. In such cases where a person in possession of the property for 5 years or 7 years will be protected if there is no evidence in respect of title on anybody. On anybody. I leave the podium to Mr. Vikas. Everybody may not have the patience after one and half hours. My question is how do you remember everything? Can you speak that extent more? That's the key. This is only one question has come. Can original vendor take the plea of adverse possession contending that the purchaser had never taken the position of property while executing registered sale deed. And it is with the vendors for more than 12 years. So that's the chat. There's only one question. Can original vendor take the plea of adverse possession contending that the purchaser had never taken the position of property. Yes, it can be done. I can remember there was one judgment of his large ship SS Subramani of the Madras High Court reported in 1992 where there was a case of a sale deed of the year 1956. But the vendor continued to be in possession of the property after selling the property. The court has held that the person who has purchased, I assume to have purchased the property lost his right. Therefore, he can maintain the source. Ganpati, when the claim is based on title, where will the rise NMS intention to possess as against the true owner and how can the alternate plea of title and reverse position be taken together? Again, in all terms, what is the NMS? We have to address the issue of NMS. The intention is not to enjoy the property adversely. Please note that the intention is to enjoy the property as my property. In cases where I am tracing title to my own vendor. Simultaneously, I can trace the right of adverse possession to the person who comes to the court as stranger. The reason is this. The NMS is to enjoy the property adversely against the owner or the plaintiff. And as a title holder against my vendor, if my vendor comes to the court, the story is different. Therefore, the NMS is not an absolute principle. NMS is only an intention to enjoy the property. And once it is on the basis of some registered documents, the possession is adverse from the date of the registered document. Kindly see AIR 2000 Supreme Court as well as AIR 1970 Supreme Court. Possession becomes adverse automatically from the date of a void document. Assuming for a moment the plaintiff with the owner, I can purchase the property from third party and continue to be in possession for 12 years and more. Still, I can take the plea of adverse possession. Animals is not an absolute animus that I should enjoy the property adversely through against the whole world. Animals is to enjoy the property adversely against the person who climbs by coming to the court. Animals also because they are young students also. Redmi has thought of himself unmuted. Meanwhile, what is lost grant? What is lost grant? I tell you the lost grant is a principle in which even in the Ayodhi cases it has been discussed. What has been pleaded by the parties who claim right by way of a mosque in India premises is this. Neither the Hindu people assuming for a moment nor the Muslims have got a proprietary right of ownership over the property. Then it was argued by Dr. Rajiv Dhawan that this was a case of a lost grant. The court refused to entertain the plea on the ground that in case of no evidence alone, the case of lost grant can be taken into account. Why this was taken by the Muslim people is this. In that case, rightly or wrongly there was a mosque constructed somewhere in 15th century. Continue to be there in the place. There was no evidence of anybody climbing possession according to them. There is no other evidence of anybody else could have got some right. Then it was pointed out that in the case on hand, there are enough evidence to show that beneath the mosque there was a Hindu structure. Archaeological survey says that there was a Hindu structure. We believe that. Therefore, it is not a case of no evidence. Therefore, we cannot apply the principle of lost grant. Again, the same principle is applied in Madurai's case, Kallarajara's case. Rather, Rajiv Nagesura would say that it cannot be applied because there are evidence to show the other man has got some right. Therefore, we are not going into the question of lost grant. Somebody has asked me a question. Walk for a temple property administration can be taken after how many years? I think today I am of the view that there is no distinction between a walk for temple or an individual. The law makes a distinction between a private owner, anti-government property or a public property. In case of a public property, it is 30 years. In case of a private individual, it is a 12 years period. Even in case of a walk from a temple property, it is only 12 years. But there are some state laws as Kalyamuthi's case where Lordship Tarun Chatterjee took the view that is a case of a walk factor where the limitation act has been deleted, non-applicable in case of a suit for possession. Therefore, it is only 12 years in case of a walk for a temple property. Somebody has asked me one question. The principle of possession is nine points in law. Don't think that it is a one, two, three, four, five, nine. Nine points, namely constructive possession, absolute possession, exclusive possession, adverse possession. Parmi is your acupaya. Let's see. This is not what is contemplated on possession in nine points in law. This possession in nine points law is nine out of ten. Namely, it means that if a person is in possession, he is entitled to protect this possession because possession in life is an invaluable right. That's what it means. You can ask your question. You have been unmuted. You want to ask a question? No, it's fine. Thank you, Mr. Pradhakar, for sharing your knowledge. As usual, you have taken us to the entire spectrum of knowledge of law and the chat itself reflects that how much people have enjoyed. That Murkuswamy says lost grant is no evidence of title. What does it mean? I will take the question. Lost grant is no evidence of title. Absolutely. It can be applied only in, there is no evidence of title on any part. Then only it can be applied. In today's world, it is very difficult to apply this theory in respect of properties. Happy Independence Day once again and keep on enjoying freedom of thought and freedom of expression. Coupled with the knowledge, they say knowledge is power. Off late, they are saying learning is more important power. Once we have speakers like Mr. Pradhakar to share his learnings and knowledge, I am quite sure that people will get more in power. Thank you, everyone. Stay safe, stay blessed. Thank you, Mr. Pradhakar.