A title-based possession suit is not time-barred absent pleaded and proved adverse possession.

The plaintiff claimed ownership of Plot No. 127 at Sabarmati, Ahmedabad, where certain tenants, including deceased Kanaiyalal Bhuralal Shah, occupied kacha cabins. According to the plaintiff, the tenants voluntarily surrendered possession in 1976 so that shops could be constructed. Three shops were thereafter constructed in 1977; the plaintiff retained Shops Nos. 1 and 3, while Kanaiyalal allegedly re-entered Shop No. 2 unlawfully after breaking its lock and commenced a cycle-repairing business there

An earlier suit, Civil Suit No. 1476 of 1982, filed by Babulal Modi against Kanaiyalal and the plaintiff, was dismissed in 1996.

The plaintiff subsequently instituted Civil Suit No. 994 of 1989 seeking recovery of possession of Shop No. 2. The City Civil Court held that the defendants were in unlawful possession, that the plaintiff had a legal right to recover possession, and that the defendants had no possessory right; however, it dismissed the suit as time-barred by applying Article 136 of the Limitation Act on the basis that possession had commenced in 1976. The plaintiff preferred the present appeal under Section 96 of the Code of Civil Procedure, 1908.

Whether the suit for recovery of possession based on the plaintiff’s title was barred by limitation merely because the defendants had entered into possession more than twelve years before institution of the suit?

Whether Article 136 of the Limitation Act, which concerns execution of decrees and orders, applied to the plaintiff’s independent suit for recovery of possession?

Whether the defendants could retain possession or claim limitation protection in the absence of a specific plea and proof of acquisition of title by adverse possession?

Whether the plaintiff was entitled to a decree for peaceful and vacant possession of Shop No. 2?

The Court applied Article 65 of the Limitation Act, 1963, under which a suit for possession of immovable property based on title must be filed within twelve years from the date on which the defendant’s possession becomes adverse to the plaintiff, and Section 27, under which the owner’s right is extinguished only upon expiry of the prescribed period of adverse possession.

Article 136 applies to execution of a decree or order and does not govern an independent suit for possession.

A defendant relying on adverse possession must specifically plead and establish the date and nature of possession, the requisite hostile animus, the owner’s knowledge, and open and continuous possession.

The Court also relied on Vasantha v. Rajalakshmi @ Rajam, 2024 (2) JT 448, and Kantilal Chunilal Seth v. Krushnalal Chunilal Seth, 2024 (4) GLH 312, affirming that limitation under Article 65 commences when possession becomes adverse, not merely when the plaintiff’s ownership arises or when the defendant first enters possession.

The trial court had conclusively found that the plaintiff held title, that the defendants were in unlawful possession, that no landlord–tenant relationship existed, and that the defendants had no legal right to remain in possession. These findings were not challenged by cross-appeal or cross-objection and therefore attained finality.

Since the suit was an original action for possession and not an execution proceeding, Article 136 was inapplicable. The appropriate provision was Article 65.

Although the defendants had remained in possession for more than twelve years, they had neither pleaded nor proved that their possession had become adverse to the plaintiff or that they had perfected title by adverse possession.

Consequently, the mere lapse of twelve years from their alleged unlawful entry did not extinguish the plaintiff’s right to seek possession under Section 27 read with Article 65. The trial court therefore erred in treating the twelve-year period as running automatically from the date of entry and in dismissing the suit as time-barred.

It held that the suit was within limitation, that the defendants were in unlawful possession, and that they were liable to deliver peaceful and vacant possession of Shop No. 2 to the plaintiff.

A decree was accordingly directed against the defendants, their heirs, successors, and persons claiming through or under them; no order as to costs was made.

The respondents’ request for a four-week stay of execution was rejected.