Prescription, adverse possession and extinguishment of title (sections 25 to 27)

1. Prescription: meaning and kinds

Prescription is the acquisition or loss of a right by the lapse of time. It is of two kinds:

• Acquisitive (positive) prescription: a person acquires a right by long enjoyment. Section 25 (easements) is the example.
• Extinctive (negative) prescription: a person loses a right by failing to enforce it within time. Section 27 is the example. In India title by adverse possession is the result of extinctive prescription: the owner's right is extinguished, and the possessor's title is the consequence.

2. Easements by prescription (sections 25 and 26)

Section 25(1) provides that where:

• the access and use of light or air to a building has been peaceably enjoyed as an easement, as of right, without interruption, for twenty years; or
• any way, watercourse, use of water or other easement (affirmative or negative) has been peaceably and openly enjoyed by a person claiming title to it as an easement, as of right, without interruption, for twenty years,

the right becomes absolute and indefeasible. The twenty years must end within two years before the suit in which the claim is contested (section 25(2)). Against Government property the period is thirty years (section 25(3)). An interruption counts only if there is an actual discontinuance of enjoyment by an obstruction by someone other than the claimant, and the claimant submits to or acquiesces in it for one year after notice (Explanation). Section 26 excludes from the twenty years any period during which the servient land was held under a life interest or a lease for more than three years, if the reversioner resists the claim within three years of the interest ending.

Sections 25 and 26 do not apply where the Indian Easements Act, 1882 is in force (section 29(4)); there, section 15 of that Act lays down the same twenty-year rule. A short-note answer should say so.

3. Extinguishment of title (section 27) with Articles 64 and 65

Section 27 provides that at the determination of the period limited for instituting a suit for possession of any property, the right to that property is extinguished. The period comes from the Schedule:

• Article 64: suit for possession of immovable property based on previous possession and not on title, when the plaintiff was dispossessed: twelve years from the date of dispossession.
• Article 65: suit for possession of immovable property or any interest in it based on title: twelve years from when the possession of the defendant becomes adverse to the plaintiff.
• Article 112: for suits by the Central or a State Government the period is thirty years.

The change from the 1908 Act matters. Under Article 142 of that Act, a plaintiff suing on title had to prove his possession within twelve years. Under Article 65 of the 1963 Act, the plaintiff who proves title need prove nothing more: the burden is on the defendant to prove that his possession became adverse, and when, and that twelve years have run since.

4. Essentials of adverse possession

Possession is adverse when it is held in denial of the true owner's title. The classical requirements are nec vi, nec clam, nec precario: not by force, not in secret, not by permission. In Karnataka Board of Wakf v. Government of India, 2004 INSC 276, (2004) 10 SCC 779, the Court said the claimant must plead and prove:

• on what date he came into possession;
• the nature of his possession;
• whether the possession was known to the other party;
• how long it continued; and
• that it was open and undisturbed.

From the cases, the possession must be actual, open and visible, hostile to the true owner, exclusive, continuous and uninterrupted for twelve years, with the intention to hold as owner (animus possidendi). Permissive possession (a tenant, licensee, mortgagee, agent or co-owner) does not become adverse until there is a clear assertion of hostile title known to the owner. Mere long possession is not adverse possession. A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, so he must state the facts clearly: P.T. Munichikkanna Reddy v. Revamma, 2007 INSC 453, (2007) 6 SCC 59, which also stressed that the intention to dispossess, and the owner's knowledge, must be proved, and noted, with reference to the European Court of Human Rights decision in J.A. Pye (Oxford) Ltd. v. United Kingdom, the growing doubts about the doctrine. The Court went further in State of Haryana v. Mukesh Kumar, 2011 INSC 731, (2011) 10 SCC 404, refusing to allow the State, through its police department, to claim title by adverse possession against a private citizen, and suggesting that Parliament reconsider the doctrine.

5. Sword as well as shield: Ravinder Kaur Grewal (2019)

In Gurdwara Sahib v. Gram Panchayat Village Sirthala (2014) 1 SCC 669, a two-Judge Bench said that a plaintiff cannot seek a declaration of title on the basis of adverse possession; adverse possession could only be used as a defence (a shield, not a sword). A three-Judge Bench overruled that view in Ravinder Kaur Grewal v. Manjit Kaur, 2019 INSC 930, (2019) 8 SCC 729. Its holdings:

• Once the twelve-year period expires, the owner's right is extinguished under section 27, and the person in adverse possession acquires a title, not merely a defence.
• Article 65 does not confine the plea to a defendant. A person who has perfected title by adverse possession may sue as plaintiff for declaration of title, for possession if dispossessed, or for injunction to protect his possession.
• The title so acquired cannot be defeated by the old owner re-entering; the possessor can recover possession by suit.

The decision makes Article 65 symmetrical: the same twelve years that bar the owner also confer a right on the possessor that he can enforce.

6. Problem

P has been in open and continuous possession of a vacant plot belonging to Q since 2010, fencing it and paying the property tax in his own name. Q never objected. In 2025 Q's agent tries to enter the plot. Can P sue? Can Q?

Issue. Whether P has perfected title by adverse possession, and whether he can assert it as plaintiff.

Law. Section 27 with Article 65 extinguishes the owner's title twelve years after the defendant's possession becomes adverse. Karnataka Board of Wakf lists what must be proved. Ravinder Kaur Grewal allows the possessor to sue for declaration and injunction.

Application. P entered in 2010, fenced the plot and paid tax in his own name: open, exclusive and hostile acts, known or easily knowable to Q. If his entry was not by Q's permission, twelve years ended in 2022, and Q's title was extinguished then. Q's suit for possession filed now would be barred under Article 65, and section 3 requires its dismissal. P can file a suit for declaration of title and permanent injunction. He must prove the date of entry, its hostile character and Q's knowledge; if his entry was permissive, he must prove when he openly asserted a hostile title, and twelve years must run from then.

Conclusion. On these facts P has acquired title and may sue; Q's claim is extinguished. If Q was a minor in 2010, sections 6 and 8 would change the result.

How this is examined

“Prescription” (June 2025) is a six-mark note: kinds of prescription, section 25 with its conditions, and section 27. A ten-mark question on adverse possession or section 27 needs parts 3 to 5 with Karnataka Board of Wakf and Ravinder Kaur Grewal. It also completes the answer to “Limitation extinguishes the remedy, not the right”: section 27 is the exception to that rule.