Section 27 of the Limitation Act, 1963 provides that:
According to the Section 27 of the Limitation Act, 1963, 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.
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ADVERTISEMENTS:
The principle underlying the Section 27 of the Limitation Act is that the person having the right to possession suffers his right to the property barred by law of limitation.
Section 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. Where no period of limitation is provided, then Section 27 does not apply. Section 27 applies only to suits and not to applications.
Section 27 is an exception to the general principle that the law of limitation only bars the remedy but does not extinguish the right itself. So far as a suit for possession is concerned, Section 27 states that at the determination of the period thereby limited to any person instituting a suit for possession being out of possession, his right to such property shall be extinguished. Section 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.
Section 27 is not merely procedural but substantial. The Section 27 only extinguishes the title of the rightful owner.
ADVERTISEMENTS:
If the rightful owner, therefore, does not institute any suit for recovery of possession within a period prescribed for such suit, then the right of the said rightful owner is extinguished and the person in wrongful possession shall acquire title over it.
The principle of Section 27 also applies in areas where the Limitation Act does not apply. In Kartar Singh v. Khankha, (AIR 1935 Lah. 787), it has been held that even though the Section 27 does not apply in terms to Special or Local Acts, but the principle underlying Section 27 applies to local laws. In Balwantah v. Ganpat, 1975 MVLJ 9), it has been held that failure to sue for possession within the time prescribed by the time prescribed in Bombay Tenancy Act has also the effect of extinguishing the right of that person to entitle to sue under the Act.
Where a person goes out of India voluntarily or under compulsion, it is his duty, to make some arrangement to look after his property left in India. When he does not do that and a person enters the land openly and continues to possess in assertion of his right and completes the requisite number of years, he acquires title by adverse possession under Section 27 of the Limitation Act.
Section 27 of the Limitation Act is limited to suits for possession of the property. So it does not apply to a suit by a mortgagee for recovery of the money due to him by sale of the mortgage property. The mortgagor’s remedy may be barred if he omits to sue within the statutory period, but his right is not extinguished.
ADVERTISEMENTS:
In Unify & Co. v. D. Sugar Mills, (AIR 1970 Cal. 80), it has been held that Section 27 applies to both movable and immovable property for the possession of which the right has to be exercised within the period of limitation prescribed for such recovery failing which the right to such property shall be extinguished by virtue of Section 27 of the Limitation Act.
In Shankaram v. Veeramani, (AIR 1957 Ker. 117), it has been held that a suit for redemption of a usufructuary mortgage and the suit for recovery of property under Article 65 of the Limitation Act would attract Section 27 of the Limitation Act.
The effect of Section 27 is that right to property shall be extinguished after expiry of the period limited for instituting a suit for possession of the property. Where the plaintiff fails to bring the suit for possession based on his title within 12 years of dispossession of the immovable property by the defendant his suit would fail as there would be complete extinguishment of his title. However, any suit brought before expiry of 12 years of dispossession would arrest the period of adverse possession and a decree passed in his favour would relate back to the date of institution of the suit, irrespective of the time taken for prosecuting the suit and the execution.
Once the person’s title to the property has been extinguished by adverse possession his re-entry to the property will not revive the lost title.
In Fakirappa v. Ningappa, (AIR 1949 Bom. 266), it has been held that under Section 27 of the Limitation Act right itself is extinguished. Twelve years adverse possession of land by a wrong-doer not only bars the remedy of the original owner to recover possession but also extinguishes his title and confers a good title upon the wrong-doer.
A person who claims adverse possession has to prove that he has remained in uninterrupted possession of the property to the knowledge of the true owner and has denied the title of the true owner and asserted his own rights of ownership in the property to the exclusion of the true owner. Otherwise mere possession for any number of years cannot constitute adverse possession. Adverse possession implies that it commenced in wrong and is maintained against right.
‘Possession’ means effective physical control or occupation. There are three requisites of possession:
(i) There must be actual or potential physical control;
(ii) Accompanied by intention; and
(iii) It must depend upon the context but under no circumstance possession does not include right of possession.
In Zile Singh v. Munshi, (AIR 1990 P&H 50), it has been held that when after the order of eviction was passed the tenant was continuing in possession for more than 12 years and the landlord did not file any execution for possession within the above period the right to recover possession has been lost by lapse of time. However, it is a case in which right may be subsisting but remedy lost. In Ajit Chopra v. Sadhuram, (AIR 2000 SC 212), the Supreme Court has made it clear that even if the execution of the decree for execution is barred by limitation that does not debar the landlord filing a suit for recovery of possession based on title.
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.
Any party claiming possession must give evidence about possession being exclusive, open and with hostile animus.