CPC Section 25-27

Section 25-27 of
Limitation Act

SUBMITTED TO:- SUBMITTED BY:-
Ms. Karan Jawanda Varun Bhardwaj
204/10
8
th
Semester
Section - A

Civil Procedure Code 2

Section 25-27 of Limitation Act

ACKNOWLEDGEMENT

I would like to express my Gratitude to my teacher, Ms. Karan
Jawanda who gave me the golden opportunity to do this wonderful
project on the topic Section 25-27 of Limitation Act which also
helped me in doing a lot of Research and I came to know about so
many new things. Secondly I would also like to thank my parents and
friends who helped me a lot in finishing this project within the limited
time.



ACQUISITION OF EASEMENTS BY
PRESCRIPTION (S. 25)

The object of section 25 is to make more easy the establishment of
rights of this description, but allowing an enjoyment of twenty years, if
exercised under the conditions prescribed by the Act, and to give
without more, an easement, and as pointed out in Delhi and London
Bank Ltd. V. Hem lai Dutt
1
, to provide another and more convenient
mode of acquiring such easement- a mode independent of any legal
fiction and capable of easy proof in a Court of Law.
The Act is only remedial, and is neither prohibitive nor exhaustive. A
man may acquire a title under it who has no right all, but it does not
exclude or interfere with other titles and modes of acquiring
easements. For instance, unlike the English Prescription Act, it does
not deal with requisitions of easements by grant or imposition, by
transfer, and by long enjoyment resting on the presumption of lawful
origin. This Act does not also deal with the transfer of easements, the
incidents of easements, the disturbance of easements and the
remedies for the same and the extinction, suspension and revival of
easements.
Section 25 states:
Acquisition of easement by prescription- (1) where the access and
use of light or air to and for any building have been peaceable
enjoyed there with as an easement, and as of right, without
interruption and for twenty years, and where any way or
watercourse or the use of any water or any other easement

1
14 Cal. 839



(whether affirmative or negative) has been peaceably and open ly
enjoyed by interruption and for twenty years, the right to such
access and use of light or air, way, watercourse, use of other
easement shall be absolute and indefeasible.
(2) Each of the said periods of twenty years shall be take n to be a
period ending within two years next before two years next before
the institution of the suit where in claim to which such period
relates is contested.
(3) Where property over which a right is claimed under sub-
section (1) belongs to the Government that sub section shall be
read as if for the words twenty years the words substituted.
Explanation-Nothing is an interruption within the meaning of the
section, unless where there is an action discontinuance of the
possession or enjoyment by reason of and obstruction by the act of
some person other than one year after the claimant has notice thereof
and of the person making or authorizing the same to be made.
Peaceably
The word peaceably means that the plaintiff who claims to be the
dominant owner had neither been obliged to resort to physical force
himself at any time to exercise his right within 20 years nor had he
been prevented by the use of physical force by the defendant in his
enjoyment of such right
2
.
The maxim of the law is that the enjoyment of easement must be nee
vi, nee calm, nee precario that is, it must be neither by violence or
force, nor by stealth, nor must it be permissive or precarious (i.e., by
leave and license). These three requirements are embodied in S. 25 of

2
Muthu Goundan v. Anantha, 31 I.C.528



the Limitation Act. The enjoyment must be peaceable, that is neither
by violence or force, on the one hand, nor attended with hostile
disturbances on the other.
Openly enjoyed
There is difference between the mode of enjoyment of air and light on
the one hand, and of the other easements on the other hand. It is
sufficient if the air and light have been enjoyed peaceably, but the
other easements must have been enjoyed openly and peaceably. The
reason of this difference is that everyone can see what light and air is
that in the case of light or air, there can be no question of a stealthy
user, and there would be in the case of the use of way or of a
watercourse; any one by simply looking at the condition of his
neighbours premises form the outside can see what light or air his
neighbour enjoys, for the thing speaks itself (res ipsa louitur). Both the
other easements may be used clandestinely.
The word openly means that the enjoyment has from the very
beginning, been visible and manifest, not furtive or secret
3
.
As an Easement
A right of ownership and a right of easement are incompatible. If a
person claims a site as owner, he cannot claim a right of way or user of
watercourse over the same as an easement
4
.
The words as an easement show that the acts relied upon as
evidence of the existence, of a right must be done by one person upon
the land of the other. The acts must not be done by him upon his own
land or land in his possession while unity of possession lasts, no

3
Ram Sarup v. Abdul Haq(A.I.R. 1931 Lah. 395
4
Chunilat v. Mangal Das, 16 Bom.592



question of easement can arise
5
. A person as dominant owner cannot
enjoy and easement against himself as servient owner
6
. On this
principle, and easement is extinguished when ownership of the
dominant and the servient tenements vests in the same person. It is, of
course, not the law that a person cannot acquire an easement, unless
during the whole prescriptive period he acts with conscious knowledge
that is a case of dominant and serviette tenement. Where a party
shows that for the statutory period he has openly exercised certain
rights which are in themselves sufficient to establish and easement,
prima facie, he is entitled to the easement and it is not necessary to
show that during the whole of the prescriptive period, he was
consciously asserting a right to an easement. A plaintiff may claim an
easement and ownership in the alternative in the same suit.
As of Right
This is the next requirement. It only means the assertion of a right
that is, without the leave and license of the servient owner, without
payment of any rent howsoever nominal. If, for instance, after the
partition of the premises by metes and bounds, one party has enjoyed
light for 20 years such enjoyment is deemed to be as of right, unless
it is shown by other side that it was by leave and license.

Without Interruption
The expression without interruption means without nay obstruction
on the part of the person against whom the easement is claimed. Mere
protests by the latter or mere verbal denials of the right claimed, not
followed by nay act to prevent the user, do not constitute an

5
Anderson v. Juggoduamba, 6 C.L.R. 282
6
Madhoosoodun v.Bissonauth, 15 B.L.R. 361



interruption. On the other hand, ineffectual opposition to the exercise
of what is claimed to be right may be evidence in support of the right
rather than of its non-existence.
Without interruption does not imply that there must be a continuous
user, in the case of a discontinuous easement continuous use is, of
course, not possible. But even as to a continuous easement like right
to the uninterrupted flow of a stream, it is not necessary that the right
should have been enjoyed at every moment; so that there may be a
user without interruption although the stream remains dry for the
greater part of the year. What is necessary is that the right must have
been substantially enjoyed whenever occasion required. Mere non-user
on the part of person claiming the easement and at his own will, does
not constitute an interruption, unless there has been such an
abandonment that intentional relinquishment can be presumed.
Ending within two years next before the institution of the suit
A title to easement is not complete merely upon the efflux of the
period of-twenty years. However long the period of actual enjoyment
may be, no absolute and indefeasible right is inchoate only; and in
order to establish when brought into question, the enjoyment relied
upon must be an enjoyment for twenty years enjoyment continuing
upto within two years of the suit in which the rights litigated. Thus,
where the twenty, years enjoyment has been interrupted, and no suit
is brought within two years form such interruption, the right cannot
be established.
Enjoyment within 2 years of suit
Enjoyment for 20 years must be proved. In case of Government
property, the period is 30 instead of 20 years. The period of enjoyment
must be full 20 years ending within two years next before the



institution of the suit wherein the claim is contested. The effect of this
is that when a right has been enjoyed for years and then an
interruption takes place, the claimant must institute a suit to
establish his right within two years of the interruption an fin that suit
he must prove that he has enjoyed the right for 20 years.



EXCLUSION IN FAVOUR OF REVERSIONER OF
SERVIENT TENEMENT (S.26)

The section is entirely for the benefit of reversioners. The object of the
prevention of easement being acquired under the Act against
interested persons who are incapable of resistance. The section does
not apply to a done or transferee from a Hindu widow by virtue of her
powers as representing the estate, since in such a case, the transferee
succeeds the widow in her capacity as full owner and not as upon the
determination of the life interest.
Section states:
Exclusion in favour of reversionary of servant tenement-where
any land or water upon, over or from, which any easement has
been enjoyed or derived has been held under or by virtue of any
interest for life or in terms of years exceeding three years from
the granting thereof the enjoyment of such easement during the
continuance of such interest or term shall be excluded in the
computation of the period of twenty years in case the claim is,
within three years next after the determination of such interest or
term, resisted by the person entitled on such determination to
the said land or water.
SCOPE:
When during the period of prescription the servient tenement has been
held by:
(a) A tenant for life, or



(b) A lessee under a lease for a term, the term of which exceeded
three years, and the claim is contested within three years form
the determination of the interest of the life-tenant or the term of
the lease, the period during which the servient tenement was
held by the life-tenant or lessee is excluded in computing the
period for 20 years.
When the period of twenty years was running the servient tenement
was held by limited owner having only a life-interest in it, this
section provides that the period during which the servient.
Tenement has been held by a person with life-interest only, or with
and interest limited only for a term of years (exceeding three years),
is to be excluded in reckoning the twenty years prescribed by S.25
provided that the reversioner, within three years of his getting into
the reversion, resists the claim to the easement.



EXTIVGUISHMENT OF RIGHT TO PROPERTY
(S.27)

It is well-established rule of law, that is cases which are not
governed by this section, limitation merely bars the remedy, but
does not extinguish the title. Thus, section 27 is confined to suits
for possession and does not apply to suit by mortgagee for recovery
of the money due to him by sale of the mortgaged property. The
mortagagees remedy may be barred if the omits to sue within the
statutory period, but his right is not extinguished
7
.
Section 27 runs as follows:
Extinguishments of right to property-at the determination of
the period hereby limited to nay person for instituting a suit
for possession of any property, his right to such property shall
be extinguished.

SCOPE
The Limitation Act does not directly provide for the acquisition of
ownership by possession; but it provides for the obverse case, where
right to property may become extinguished by non-possession for a
length of time. This is done enacting that where a persons right to
institute a suit for the possession of nay property has become
barred by limitation, his right to the property itself shall be
extinguished. In other words, it provides that where the remedy by

7
Jokhu v. Sitla, A.I.R. 1930 All.416



way of suit of the possession of any property is gone, the right to
that property is also gone.
It should be noted that this section applies only to suits, and not to
application. Therefore, even though a period of limitation for and
application is terminated, only the remedy of application is barred
but the right is not extinguished
8
.
Extinguishment of Right
The limitation act lays down a rule of substantive law in Sec. 27. It
declares that after the lapse of the period provided by this
enactment, the right itself is gone and the title ceases to exist, and
not merely the remedy. If and owner, whose property is encroached
upon, suffers his right to be barred by the law of limitation the
practical effect is the extinction of his title in favour of the party in
possession. It is of the utmost-consequence in India that the
security which long possession affords should not be weakened. As
between private owners contesting inter se the title to lands, the law
has established a limitation of twelve years; after that time it
declares not simply that the remedy is barred, but that the title is
extinct in favour of the possessor. When a persons suit for
possession of any property is barred by limitation under the Act, his
right to such property stands extinguished: S. 27. Under this
section, not only the ownership to-one person is extinguished, but
and absolute ownership is also acquired by the other person in
adverse possession.

8
Province of Bengal v. Probash(A.I.R. 1955 Cal. 400



Twelve years adverse possession of land by a wrongdoer not only
bars the remedy and extinguishes the title of the rightful owner, but
confers a good title upon the wrongdoer
9
.
The title which is acquired by adverse possession is a new title in
strictness of law, it is not old title which is transferred to the new
owner, but only a title corresponding in quantity and quality to the
old title. Therefore, if the property of which there has been adverse
possession us a lease-hold subject to a rent and to covenants, the
new owner is not liable as an assignee of the lessee to the rent or
those covenants, but he is liable on the ground that the lessors
right to the rent and his right also to re-enter under the proviso for
re-entry are not prejudiced by the adverse possession which has
only been between the lessee and the adverse possessor.
Extinguishment of Right
But in cases where the right claimed is that of possession of
property, and the suit is not brought in time, it is not only the
remedy that is barred, but also the right is extinguished. The result
is that not only w ill the court throw out the suit, but also that if the
plaintiff dispossesses the person in possession, he will be
considered a trespasser. Possession for twelve years creates a title
by negation in the occupant which he can actively assert, if the is
dispossessed, even against the true owner. The principle is that
when the title is extinguished, it cannot be revived by re-entry.
Essentials of Adverse Possession
The following are the essentials of adverse possession:

9
Fakirappa v. Nigappa, 45 Bom. LR. 491



1. The defendant must be in actual possession, mere entries in the
record of right of the defendants name are not sufficient. The
possession necessary to find a title by adverse possession under
this section is not different in character (though it may be in
duration) from the possession required to prevent limitation
under art. 64 or art. 65. So, it is not necessary for the plaintiff to
prove affirmative physical possession every bit of land. That only
thing ot be considered in such a case is whether the acts of
possession which have been proved will legitimately show that
the plaintiff had enjoyed such domination over the property in
the manner in which such domination is normally exercised so
as to acquire title under this section
10
.
2. The possession must be adequate in continuity, in publicity and
in extent to show that it is adverse on the owner. It is not
sufficient that some act of ownership have been done. The
possession must be open, notorious, actual and adverse.
3. There must be an intention to hold the property. If the defendant
believes that he is entitled only to a life estate, and remains in
possession with that belief, his possession is not adverse to that
of the plaintiff who shared his belief.
4. Possession cannot be adverse if its commencement can be
referred to lawful title. Thus, the possession of a manager of a
family or a guardian does not become adverse until he has
distinctly repudiated his title.
5. The possession does not become adverse to the plaintiff when
there was no notice or knowledge or circumstances that could
have given notice or knowledge to the plaintiff that the
defendants possession was in displacement of his right. But eh

10
Harfiz Swamp, 50 Bom.L.R. 632



knowledge may be presumed form an open and notorious act of
possession.
6. Possession does not become adverse to the plaintiff until the
plaintiff is entitled to immediate possession.
7. Possession of the land cannot be held to constitute constructive
possession of the whole, so as to enable the possessor to obtain
thereby title to the whole by limitation. A wrongdoer gains title
only to that portion of land which is actually held by him.
Acquisitive and Extinctive Prescription
Hitherto, only the extinctive aspect of prescription, that is ,
prescription as extinguishing a right, has been considered.
However, prescription has also an acquisitive aspect, which must
next be considered. It may also create rights, that is to say, by long
enjoyment of a thing, one may get an absolute right and title to it.
The same period of time which extinguishes one persons rights may
create rights in favour of another person rather; the operation of
prescription is to transfer the rights may create rights of the former
in favour of the latter. S. 27 of the limitation act mentions merely
that the right of a person, who-has been so long out of possession of
a property that he is now un able to sue for the possession of it,
shall be extinguished; it does not state that a new rights is created
in favour of another person who has been in possession de facto; bit
it has been held that this omission is immaterial, and that a good
title is also conferred upon the person in possession de facto.
A part from S.27, there are other provisions of the law in India
directly relating to acquisitive prescription. The most important of
these are S.25 of the limitation act and S. 15 of the Indian
Easements Act, both relating to the acquisition of easements by
long, uninterrupted and open enjoyment. Briefly these sections



provide that where the access and use of light or air to and for nay
building, or right of way, or any other easement (e.g., right of
support or a right to water course), has been peaceably and openly
enjoyed by a person as an easement, without interruption, for
twenty years, the right to such access and use of light and air, way,
or other easement shall become absolute.
The law of prescription has a twofold function:
1. It extinguishes rights and remedies.
2. It creates new titles. In its former character, it is termed Extin-
ctive prescription, in the latter, it is called Acquisitive
prescription.
Acquisitive prescription, i.e., cases in which a new right is
created by efflux of time, is dealt with in S. 25. Extinctive
prescription, i.e., cases in which a right to property is
extinguished by efflux of time, is dealt with in S.27.

Government
The possessor can establish that he and his predecessors-in-title
are for 30 years in possession adverse to the Governmetn (Art.
112), any right of the government to the property is extinguished,
and the plaintiff succeeds in his claim
11
.

Joint property
The expression right to property includes the right to joint
possession and enjoyment. If a person entitled to joint possession
fails to sue within the period of limitation his right to joint
possession is extinguished
12
.

11
Secretary of State v. Debendra, A.I.R. 1943 P.C. 23
12
Jagatram v. Pitai, A.I.R. 1930 Nag. 142



Adverse possession against co-owner
A Muslim widow had inherited the right and management of a
Dargah. Her right as a co-sharer was not expressly denied, nor
was there nay evidence of and open ascertain of a hostile title
against her. It was held that her rights were not barred by non
possession for over twelve years as mere possession by other co-
sharers was not enough to constitute her ouster and therefore
her heirs could claim that right after her death
13
.

13
Md. Zaimulabudeen v. Syed Ahmed Mohideen, A.I.R. 1990 S.C. 507



BIBLIOGRAPHY

1. Mulla; The Code of Civil Procedure (17th Ed.), 2007 Lexis
Nexis Butterworths Publications
2. C.K. Takwani; Civil procedure (6th Ed),2009, Eastern Book
Company Lucknow
3. A.K. Nandi & S.P. Sen Gupta, The Code of Civil Procedure, 3rd
Ed., 2009
4. M.P. Jain; The Code of Civil Procedure (2007), Wadhawa
Publications
5. Limitation Act, 1963
6. http://www.scribd.com/doc/137843711/Summary-of-
Takwani

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