Suit Based On Title Can Be Filed At Any Stage If Defendant Fails To Prove Adverse Possession: Himachal Pradesh High Court

"In case the defendant has failed to set up the plea of adverse possession or title in any manner in that event, the plaintiff on the basis of title can institute the civil suit at any stage and at any time."  Himachal Pradesh High Court, in a significant ruling, held that a suit for possession based on title remains maintainable at any stage as long as the defendant fails to establish a claim of adverse possession.

A bench of Justice Romesh Verma observed that once a plaintiff proves their title to the property, the burden of proof shifts entirely to the defendant to establish that they have perfected their title through peaceful, open, and continuous possession in denial of the true owner's title.

The Court emphasized that mere long-term possession does not automatically translate into adverse possession. Dealing with a regular second appeal, the Court affirmed the concurrent findings of the lower courts, which had decreed the suit in favor of the plaintiffs after finding that the defendant had failed to raise any specific plea of adverse possession to counter the plaintiffs' established ownership.

The dispute originated from a suit for possession of land situated in village Matlahar, Tehsil Jawali, District Kangra. The plaintiffs (respondents) alleged that they were owners of the suit land and that the defendant had illegally recorded himself as 'Kabiz' (in possession) during settlement operations in 1983-84 in collusion with revenue staff. They further alleged that the defendant took forcible possession in December 2005.

The defendant (appellant) resisted the suit, claiming possession since the time of his forefathers and arguing that the suit was barred by the principle of res-judicata because a previous suit involving the same parties had been dismissed in 1999. Both the Trial Court and the First Appellate Court ruled in favor of the plaintiffs, prompting the defendant to approach the High Court in a second appeal.

The primary questions before the court were whether the plaintiffs' right to recover the suit land had become extinguished under Section 27 of the Limitation Act. The court was also called upon to determine whether the present suit was maintainable in light of the earlier suit's dismissal under Order 9 Rule 8 of the CPC, or if it was barred by the principle of res-judicata.

Burden Of Proof Shifts To Defendant Once Plaintiff Establishes Title

The Court delved into the shifting nature of the burden of proof in possession suits. It noted that under the current legal framework of the Limitation Act, 1963, specifically Articles 64 and 65, the position has changed significantly compared to the 1908 Act. The bench observed that the plaintiff is no longer required to prove possession within twelve years preceding the suit if the suit is based on title.

"The Hon’ble Apex Court has held that the change in the position in law as regard the burden of proof as was obtaining in the Limitation Act 1908 viz-a-viz the Limitation Act, 1963 is evident... Once the plaintiff proves his title, the burden shifts to defendant to establish that he has perfected his title by way of adverse possession."

Long Possession Without Plea Of Adverse Possession Does Not Extinguish Owner's Right

Justice Verma highlighted that for possession to be considered 'adverse', it must satisfy the classical requirements of being peaceful, open, and continuous. The Court found that in the present case, the defendant had merely claimed long-term possession without specifically pleading or proving the elements of adverse possession against the true owners.

The Court relied on the precedent set in Saroop Singh vs. Banto & others (2005), noting that if the defendant does not raise a plea of adverse possession, no relief can be granted to them against a title-holder. The bench remarked that the defendant could not state the date or month of coming into possession and failed to extract anything favorable during cross-examination.

"It is well settled principle of law that mere possession, however long, does not necessarily mean that it is adverse to the true owner... In absence of any pleading or proof, the only natural consequences would be to decree the suit of the plaintiffs for possession on the basis of title."

Dismissal In Default Does Not Constitute Res-Judicata

Addressing the second substantial question of law, the Court examined whether the dismissal of an earlier suit for default (under Order 9 Rule 8 CPC) acted as a bar to the current proceedings. The appellant had argued that the dismissal of a 1996 suit in 1999 attracted the principle of res-judicata under Section 11 of the CPC.

The High Court rejected this contention, clarifying that Section 11 of the CPC only applies when a matter has been "heard and finally decided" on its merits. Referring to Ram Gobinda Daw & others vs. Smt. H. Bhakta Bala Dassi etc. (1971), the Court held that a dismissal in default does not involve an adjudication of the case's merits.

"Mere dismissal of earlier civil suit in default does not amount to determination or adjudication of the case on merits. Therefore, the provisions of Section 11 would not be applicable in the instant case... dismissal of the suit for default does not amount to adjudication on the merits of the case."

The High Court concluded that there was no illegality or perversity in the concurrent findings of the lower courts. Since the plaintiffs were the recorded owners and the defendant failed to prove a legal right to remain in possession or establish adverse possession, the decree for possession was upheld. The second appeal was dismissed as being devoid of merit.

Date of Decision: 10 July 2026