၂၀၁၉ခုနှစ်၊ဩဂုတ်လ(၇)ရက်နေ့၌စီရင်ဆုံးဖြတ်သော

ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

၂၀၁၉ခုနှစ်၊ဩဂုတ်လ(၇)ရက်နေ့၌ဆုံးဖြတ်စီရင်သော-

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7764 OF 2014

RAVINDER KAUR GREWAL & ORS. APPELLANT(S)

                 VERSUS

MANJIT KAUR & ORS. RESPONDENT(S)

                     WITH

SPECIAL LEAVE PETITION(CIVIL)NOS.8332-8333 OF 2014

RADHAKRISHNA REDDY (D) THROUGH LRS.PETITIONER(S)

                  VERSUS

G. AYYAVOO & ORS. RESPONDENT(S)

အမှုတွင်၊အိန္ဒိယတရားလွှတ်တော်ချုပ်တရားသူကြီး ARUN MISHRA, J.က၊အယူခံမှုတွင်ဆုံးဖြတ်ရန်ပြဿနာသုံးရပ်နှင့်စပ်လျဉ်း၍၊စာမျက်နှာ၁နှင့်၂၊အပိုဒ်၁တွင်အောက်ဖော်ပြပါအတိုင်းအစချီသည်-

“1.The question of law involved in the present matters is quite significant.

Whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of Limitation Act, 1963(for short,"the Act") for declaration of title and for a permanent injunction seeking the protection of his possession thereby restraining the defendant from interfering in the possession or for restoration of possession in case of illegal dispossession by a defendant whose title has been extinguished by virtue of the plaintiff remaining in the adverse possession or in case of dispossession by some other person? 

In other words, whether Article 65 of the Act only enables a person to set up a plea of adverse possession as a shield as a defendant and such a plea cannot be used as a sword by a plaintiff to protect the possession of immovable property or to recover it in case of dispossession. 

Whether he is remediless in such a case? 

In case a person has perfected his title based on adverse possession and property is sold by the owner after the extinguishment of his title, what is the remedy of a person to avoid sale and interference in possession or for its restoration in case of dispossession?”

စာမျက်နှာ၂၊၃၊၄၊အပိုဒ်၂တွင်၊”adverse possession”၏သမိုင်းကြောင်းကိုအောက်ဖော်ပြပါအတိုင်းမြွက်ဆိုသည်-

“2.Historically, adverse possession is a pretty old concept of law. 

It is useful but often criticised concept on the ground that it protects and confers rights upon wrongdoers. 

The concept of adverse possession appeared in the Code of Hammurabi approximately 2000 years before Christ era. 

Law 30 contained a provision "If a chieftain or a man leaves his house,garden, and field .... and someone else takes possession of his house, garden and field and uses it for three years; if the first owner returns and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it." 

However, there was an exception to the aforesaid rule: for a soldier captured or killed in battle and the case of the juvenile son of the owner. 

In Roman times, attached to the land, a kind of spirit that was nurtured by the possessor. 

Possessor or user of the land was considered to have a greater "ownership" of the land than the titled owner. 

We inherited the Common Law concept, being a part of the erstwhile British colony. 

William in 1066 consolidated ownership of land under the Crown.

The Statute of Westminster came in 1275 when land records were very often scarce and literacy was rare, the best evidence of ownership was possession. 

In 1639, the Statute of Limitation fixed the period for recovery of possession at 20 years. 

A line of thought was also evolved that the person who possesses the land and produces something of ultimate benefit to the society, must hold the best title to the land.

Revenue laws relating to land have been enacted in the spirit to confer the title on the actual tiller of the land. 

The Statute of Wills in 1540 allowed lands to be passed down to heirs. 

The Statute of Tenures enacted in 1660 ended the feudal system and created the concept of the title. 

The adverse possession remained as a part of the law and continue to exist.

The concept of adverse possession has a root in the aspect that it awards ownership of land to the person who makes the best or highest use of the land. 

The land, which is being used is more valuable than idle land, is the concept of utilitarianism. 

The concept thus, allows the society as a whole to benefit from the land being held adversely but allows a sufficient period for the "true owner" to recover the land. 

The adverse possession statutes permit rapid development of "wild" lands with the weak or indeterminate title. 

It helps in the Doctrine of Administration also as it can be an effective and efficient way to remove or cure clouds of title which with memories grow dim and evidence becomes unclear. 

The possessor who maintains and improves the land has a more valid claim to the land than the owner who never visits or cares for the land anduses it, is of no utility. 

If a former owner neglects and allows the gradual dissociation between himself and what he is claiming and he knows that someone else is caring by doing acts, the attachment which one develops by caring cannot be easily parted with. 

The bundle of ingredients constitutes adverse possession.”

ဝါရင့်ဥပဒေပညာရှင်နှစ်ဦးအားရုံးတော်သဟာယ(Amicus Curiae)အဖြစ်ဖိတ်ခေါ်ခဲ့ပုံကိုစာမျက်နှာ၄၊အပိုဒ်၃တွင်အောက်ပါအတိုင်းဖော်ပြသည်-

“3. We have heard learned counsel appearing for the parties at length and also the Amicus Curiae, Shri P.S. Patwalia and Shri Huzefa Ahmadi,senior counsel. 

Various decisions of this Court and Privy Council and English Courts have been cited in which the suit filed by the plaintiff based on adverse possession has been held to be maintainable for declaration of title and protection of the possession or the restoration of possession.

Nature of right acquired by adverse possession and even otherwise as to the right to protect possession against unlawful dispossession of the plaintiff or for its recovery in case of illegal dispossession.”

စာမျက်နှာ၆နှင့်၇၊အပိုဒ်၇တွင်၊ရုံးတော်သဟာယရည်ညွှန်းတင်ပြသောစီရင်ထုံးတရပ်ကိုအောက်ပါအတိုင်းကောက်နုတ်ဖော်ပြသည်-

“7. Learned Amicus pointed out that in Sarangadeva Periya Matam &Anr. v.Ramaswami Goundar (Dead) by Lrs. (supra) the plaintiff was in the possession of the suit land until January 1950 when the mutt'obtained possession of the land. 

On February 18, 1954, plaintiff instituted the suit against the mutt for "recovery of possession" of the suit land o based on an acquisition of title to land by way of "adverse possession". 

A Three-Judge Bench of this Court has held that the plaintiff acquired the title by his adverse possession and was entitled to recover the possession. Following is the relevant discussion:

2. The plaintiff claimed title to the suit lands on the following grounds: (1) Since 1915 he and his predecessors-in-interest were in adverse possession of the lands. and on the expiry of 12 years in 1927, he acquired prescriptive title to the lands under s. 28 read with Art. 144 of the Indian Limitation Act, 1908:

10. We hold that by the operation of Art. 144 read with s. 28 of the Indian Limitation Act. 1908 the title of the math to the suit lands became extinguished in 1927, and the plaintiff acquired title to the lands by prescription. 

He continued in possession of the lands until January 1950. 

It has been found that in January 1950 he voluntarily delivered possession of the lands to the math, but such delivery of possession did not transfer any title to the math. 

The suit was instituted in 1954 and is well within time.(emphasis supplied)"

စာမျက်နှာ၁၂၊၁၃၊၁၄၊၁၅၊အပိုဒ်၁၁တွင်၊ In Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165 စီရင်ထုံးကိုရည်ညွှန်းဖော်ပြ၍အောက်ပါအတိုင်းပြဆိုသည်-

“11.In Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,the plaintiff filed a suit claiming to be in possession for over 70 years.

The plaintiff claimed possession of the excess land from the society, its Manager and Defendants Nos.3 to 6. 

The society denied the rights of the plaintiff to bring a suit for ejectment or its liability for compensation.

Alternatively, the society claimed the value of improvements. 

The main controversy decided by the High Court was whether the plaintiff can maintain a suit for possession without proof of title. 

This court observed that in case the rightful owner does not come forward within the period of limitation his right is lost, and the possessory owner acquires an absolute title.

The plaintiff was in de facto possession and was entitled to remain in possession and only the State could evict him. 

The State was not impleaded as a party in the case. 

The action of the society was a violent invasion of his possession and in the law, as it stands in India, the plaintiff can maintain a possessory suit under the provisions of the Specific Relief Act, 1963. 

The plaintiff has asserted that he had perfected his title by "adverse possession" but he did not join the State in a suit to get a declaration. 

He may be said to have not rested the suit on the acquired title. 

The suit was thus limited to recovery of possession from one who had trespassed against him. 

The Court observed that for the plaintiff to maintain suit based on adverse possession, it was necessary to implead the State Government ie. the owner of the land as a party to the suit. 

A plaintiff can maintain a suit based on adverse possession as he acquires absolute title. 

The Court observed:

(17) In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73 to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:

"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title."

Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him.The action of the Society was a violent invasion of his possession and in the law. as it stands in India the plaintiff could maintain a possessor suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. As this was a suit of latter kind title could be examined. But whose title?

Admittedly neither side could establish title. The plaintiff at least pleaded the statute of Limitation and asserted that he had perfected his title by adverse possession. But as he did not join the State in his suit to get a declaration, he may be said to have not rested his case on an acquired title. His suit was thus limited to recovering possession from one who had trespassed against him. The enquiry thus narrows to this: did the Society have any title in itself, was it acting under authority express or implied of the true owner or was it just pleading a title in a third party? 

To the first two questions we find no difficulty in furnishing an answer. It is clearly in the negative. So the only question is whether the defendant could plead that the title was in the State? Since in every such case between trespassers the title must be outstanding in a third party a defendant will be placed in a position of dominance. He has only to evict the prior trespasser and sit pretty pleading that the title is in someone else. As Erle J put it in Burling v. Read (1848) 11 9B 904 parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut and occupying it before morning'. This will be subversive of the fundamental doctrine which was accepted always and was reaffirmed in 1907 AC 73. The law does not, therefore, countenance the doctrine of 'findings keepings.

(22) The cases of the Judicial Committee are not binding on us but we approve of the dictum in 1907 AC 73. No subsequent case has been brought to our notice departing from that view. No doubt a great controversy exists over the two cases of (1849) 13 9B 945 and (1865) 1 9B 1 but it must be taken to be finally resolved by 1907 AC 73. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in 1907 AC 73 and may be taken to be declaratory of the law in India. We hold that the suit was maintainable."(emphasis supplied)”

စာမျက်နှာ၂၁၊၂၂၊အပိုဒ်၁၇တွင်၊ In Mohammed Fateh Nasib v. Swarup Chand Hukum Chand & Anr. AIR 1948 PC 76,စီရင်ထုံးကိုရည်ညွှန်းဖော်ပြ၍အောက်ပါအတိုင်းသုံးသပ်သည်-

“17.In Mohammed Fateh Nasib v. Swarup Chand Hukum Chand & Anr.AIR 1948 PC 76, Privy Council considered the question of adverse possession by a plaintiff. 

In the plaint, his case was based upon continuous, open, exclusive and undisturbed possession. He averred that he had acquired an indefeasible title to the suit property by adverse possession against the whole world. In 1928, he was surreptitiously dispossessed from the suit property. 

The question arose for consideration whether the plaintiff remained in adverse possession for 12 years and whether it was adverse to the wakf. 

The Privy Council agreed with the findings of the High Court that the"plaintiff and his predecessors-in-interest had remained in possession of the suit property for more than 12 years before 1928 to acquire a title under section 28 of the Act and the plaintiff was not a mere trespasser. 

The court further held that title by the adverse possession can be established against wakf property also.

The Privy Council observed:-

"On that basis the first question to be determined is whether the plaintiff proved continuous. open exclusive and undisturbed possession of the property in suit for 12 years and upwards before 1928 when he was dispossessed, that being the relevant date under Article 142 of the Limitation Act. If that question is answered in the affirmative then the further question arises whether such possession was adverse to the wakf.

Their Lordships agree that this is the correct test to apply and, having examined the evidence, oral and documentary, they agree with the finding of the High Court that the plaintiff and his predecessors-in-interest had been in possession of the suit property for more than 12 ears prior to 1928 so as to acquire a title under Section 28 of the Limitation Act. It is no doubt true, as the learned Subordinate Judge held, that the claim of a mere trespasser to title by adverse possession will be confined strictly to the property of which he has been in actual possession. But that principle has no application in the present case. The plaintiff is not a mere trespasser; he himself purchased the property for a large sum and Aberjan, upon whose possession the claim ultimately rests, was put into possession by an order of the Court, whether or not such order was rightly made. Apart from this, their Lordships think that the character of the possession established by the plaintiff was adequate to found title even in a trespasser.

Their Lordships feel no hesitation in agreeing with the High Court that adverse possession by the plaintiff and his predecessors-in-interest has been proved for the requisite period.

The only question which then remains is whether such possession was adverse to the wakf. It is not disputed that in law a title by adverse possession can be established against wakf property, but it is clear that a trustee for a charity entering into possession of property belonging to the charity cannot, whilst remaining a trustee, change the character of his possession, and assert that he is in possession as a beneficial owner."

(emphasis supplied)

The plaintiff's title was declared based on adverse possession.”

စာမျက်နှာ၂၃၊၂၄၊အပိုဒ်၁၉တွင်၊ In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254,စီရင်ထုံးကိုရည်ညွှန်း၍အောက်ပါအတိုင်းသုံးသပ်သည်-

“19. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, a question arose under section 66 of the Code of Civil Procedure, 1908 which provides that no suit shall be maintained against a certified purchaser.

The question arose for consideration that in case possession is disturbed whether a plaintiff can take the alternative plea that the title of the person purchasing benami in court auction was extinguished by long and uninterrupted adverse possession of the real owner. 

If the possession of the real owner ripens into title under the Act and he is dispossessed, he can sue to obtain possession. 

This Court has held that in such a case it would be open for the plaintiff to take such a plea but with full particulars so that the starting point of limitation can be found.

A mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title was not enough to raise such a plea. 

Long possession was not necessarily an adverse possession and the prayer clause is not a substitute for a plea of adverse possession. 

The opinion expressed is that plaintiff can take a plea of adverse possession but with full particulars.”

The Court has observed:

There is no suggestion that Syed Aulad Ali ever asserted any hostile title against him or that a dispute with regard to ownership and possession had ever arisen.

Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

There is no evidence here when possession became adverse if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. 

Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. 

The cited cases need hardly be considered because each case must be determined upon the allegations in the plaint in that case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad, AIR 1940 PC 202 the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea."(emphasis supplied)

စာမျက်နှာ၃၃၊၃၄၊၃၅၊၃၆၊အပိုဒ်၂၅၊၂၆၊၂၇၊၂၈တို့တွင်၊အင်္ဂလန်နိုင်ငံဥပဒေသဘောတရားကိုအောက်ပါအတိုင်းပြဆိုသည်-

25. In Halsbury's Laws of England, 4 Edn., Vol. 28, para 777 positions of person in adverse possession has been discussed and it has been observed on the basis of various decisions that a person in possession has a transmissible interest in the property and after expiration of the statutory period, it ripens as good a right to possession.

Para 777 is as under:

"777. Position of person in adverse possession: While a person who is in possession of land without title continues in possession, then, before the statutory period has elapsed, he has a transmissible interest in the property which is good against all the world except the rightful owner, but an interest which is liable at any moment to be defeated by the entry of the rightful owner; and, if that person is succeeded in possession by one claiming through him who holds until the expiration of the statutory period, the successor has then as good a right to the possession as if he himself had occupied for the whole period.'

(emphasis supplied)

26. In Halsbury's Laws of England, extinction of title by the effect of the expiration of the period of limitation has also been discussed in Para 783 and once right is lost to recover the possession, the same cannot be revested by any re-entry or by a subsequent acknowledgment of title. 

Para 783 is extracted hereunder:

"783. Extinction of title: At the expiration of the periods prescribed by the Limitation Act 1939 for any person to bring an action to recover land (including a redemption action) or an action to enforce an advowson, the title of that person to the land or advowson is extinguished. This is subject to the special provisions relating to settled land and land held on trust and the provisions for constituting the proprietor of registered land a trustee for the person who has acquired title against him. The extinguished title cannot afterward be revested either by re-entry or by a subsequent payment or acknowledgment of title. A rent-charge is extinguished when the remedy to recover it is barred."(emphasis supplied)

27. Nature of title acquired by adverse possession has also been discussed in the Halsbury's Laws of England in Para 785. 

It has been observed that adverse possession leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the rights of others to eject him. 

Same is a "good title", both at law and in equity. 

Para 785 is also extracted hereunder:

"785. Nature of title acquired: The operation of the statutory provision for the extinction of title is merely negative; it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him.

A title gained by the operation of the statute is a good title,both at law and in equity, and will be forced by the court on a reluctant purchaser. Proof,however, that a vendor and those through whom he claims have had independent possession of an estate for twelve ears will not be sufficient to establish a saleable title without evidence to show the state of the title at the time that possession commenced. If the contract for purchase is an open one, possession for twelve years is not sufficient, and a full length of the title is required. Although possession of land is prima facie evidence of seisin in fee, it does not follow that a person who has gained a title to land from the fact of certain persons being barred of their rights has the fee simple vested in himself; for, although he may have gained an indefeasible title against those who had an estate in possession, there may be persons entitled in reversion or remainder whose rights are quite unaffected by the statute.(emphasis supplied)

28. In an article published in Harvard Law Review on "Title by Adverse Possession" by Henry W. Ballantine, as to the question of adverse possession and acquisition of title it has been observed on strength of various decisions that adverse possession vests the possessor with the complete title as effectually as if there had been a conveyance by the former owner. 

As held in Toltec Ranch Co. v. Cook, 191 U.S. 532, 542(1903). But the title is independent, not derivative, and "relates back" to the inception of the adverse possession, as observed. (see Field U.Peoples, 180 Ill. 376, 383, 54 N.E. 304 (1899); Bellefontaine Co. U.Niedringhaus, 181 Ill. 426, 55 N.E. 184 (1899). Cf. La Salle v. SanitaryDistrict, 260 Ill. 423, 429, 103 N.E. 175 (1913); AMES, LECTURES ON LEGAL HIST. 197; 3 ANGLO-AMERICAN ESSAYS, 567). 

The adverse possessor does not derive his title from the former owner, but from a new source of title, his possession. 

The "investitive fact" is the disseisin and exercise of possession as observed in Camp v. Camp, 5 Conn. 291 (1824);Price v. Lyon, 14 Conn. Conn. 279, 290 (1841); Coal Creek, etc. Co. U.East Tenn. I. & C. Co., 105 Tenn. 563; 59 S.W. 634, 636 (1900). 

It has also been observed that titles to property should not remain uncertain and in dispute, but that continued de facto exercise and assertion of a right should be conclusive evidence of the de jure existence of the right.”

စာမျက်နှာ၃၉နှင့်၄၀၊အပိုဒ်၃၂တွင်အောက်ပါအတိုင်းပြဆိုသည်-

32. The operation of the statute of limitation in giving a title is merely negative; it extinguishes the right and title of the dispossessed owner and leaves the occupant with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him. 

Perry V. Clissold (1907) AC 73 has been referred to in Nair Service Society Ltd.V. K.C. Alexander (supra) in which it has been observed that it cannot be disputed that a person in possession of land in the assumed characterof owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the original owner, and if the original owner does not come forward and assert his title by the process of law within the period prescribed under the statute of limitation applicable to the case, his right is forever extinguished and the possessory owneracquires an absolute title. 

In Ram Daan (Dead) through LRs. v. Urban Improvement Trust, (2014) 8 SCC 902, this Court has observed thus:

"11. It is settled position of law laid down by the Privy Council in Perry v. Clissold 1907 AC 73 (PC) (AC p. 79)

"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.”

The above statement was quoted with the approval by this Court in Nair Service Society Ltd. V. K.C. Alexander, AIR 1968 SC 1165. Their Lordships at para 22 emphatically stated: (AIR p. 1175)

"22. The cases of the Judicial Committee are not binding on us but we approve of the dictum in Perry v. Clissold 1907 AC 73 (PC).”

စာမျက်နှာ၅၃၊၅၄၊၅၅၊အပိုဒ်၅၀၊၅၁၊၅၂၊၅၃တွင်၊”prescriptive right””Limitation Act Article 144””Limitation Act Section 28””ripened by prescription”အကြောင်းတို့ကိုအောက်ပါအတိုင်းဖော်ပြမြွက်ဆိုသည်-

50. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by aperson who is filing a suit. 

It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires.

Once right is extinguished another person acquires “prescriptive right”which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. 

In such a case suit can be filed by a person whose right is sought to be defeated.

51. In India, the law respect possession, persons are not permitted to take law in their hands and dispossess a person in possession by force as observed in Late Yashwant Singh (supra) by this Court. 

The suit can be filed only based on the possessory title for appropriate relief under the Specific Relief Act by a person in possession. 

Articles 64 and 65 both are attracted in such cases as held by this Court in Desh Raj v. Bhagat Ram (supra). 

In Nair Service Society (supra) held that if rightful owner does not commence an action to take possession within the period of limitation, his rights are lost and person in possession acquires an absolute title.

52. In Sarangadeva Periya Matam v. Ramaswami Gounder, (supra), the plaintiff's suit for recovery of possession was decreed against Math based on the perfection of the title by way of adverse possession, he could not have been dispossessed by Math. 

The Court held that under Article 144 read with Section 28 of the Limitation Act, 1908, the title of Math extinguished in 1927 and the plaintiff acquired title in 1927. 

In 1950, he delivered possession, but such delivery of possession did not transfer any title to Math.

The suit filed in 1954 was held to be within time and decreed.

53. There is the acquisition of title in favour of plaintiff though it is negative conferral of right on extinguishment of the right of an owner of the property.

The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on ‘title' as envisaged in the opening part under Article 65 of Act. 

Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start of adverse possession, if any, set up by the defendant.

Otherwise right to recover possession based on the title is absolute irrespective of limitation in the absence of adverse possession by the defendant for 12 years. 

The possession as trespasser is not adverse nor long possession is synonym with adverse possession.”