Whether plea of adverse possession can be used as sword?

Hon'ble Apex Court in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala reported in (2014) 1 SCC 669 has held that suit for declaration of ownership of land on the basis of adverse possession cannot be sought by the plaintiff, however, claim of ownership by adverse possession can be made by the defendant in defence, if arrayed as defendant in a proceeding against him. In other words, plea of adverse possession cannot be used as sword but always can be used as shield (defence).

Uttaranchal High Court

Mr. Jitendra Chaudhary vs Mr. Arvind Vashisth on 9 May, 2014

Although sole plaintiff/ respondent no. 2, herein, is reported to have expired and no substitution has been carried out as yet, however, while perusing the record, this Court came to know that plaintiff in fact filed suit for declaration claiming title on the basis of adverse possession, which was decreed by the Trial Court and appeal arising therefrom was dismissed by the Appellate Court.

Hon'ble Apex Court in the case of Gurdwara Sahib v. Gram Panchayat Village Sirthala reported in (2014) 1 SCC 669 has held that suit for declaration of ownership of land on the basis of adverse possession cannot be sought by the plaintiff, however, claim of ownership by adverse possession can be made by the defendant in defence, if arrayed as defendant in a proceeding against him. In other words, plea of adverse possession cannot be used as sword but always can be used as shield (defence).

Since, present petition is pending disposal under Article 227 of the Constitution of India, therefore, I feel it proper to examine as to whether suit file by the plaintiff claiming ownership on the basis of adverse possession was maintainable.

On the request of learned counsel appearing for the parties, list on 12.5.2014.

(Alok Singh, J.) 9.5.2014 

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