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Adverse Possession Boon or Curse

Plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield.

History of Adverse possession:

Historically, adverse possession is a pretty old concept of law. 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 1639, the Statute of Limitation fixed the period for recovery of possession at 20 years. 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 doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus t the title of the possessor and prevent fanciful claims from erupting.

Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context.
Adverse possession has not been defined in any statute.

The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the Limitation Act,1963. Modern statutes of limitation operate, as a rule, not only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title.

Section 27 of the Limitation Act,1963 provides:

Extinguishment of Right to property: At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished

Article 65 of the Limitation Act,1963 reads as:

Description of suit Period of limitation Time from which period begins to run
65. For possession of immovable property or any interest therein based on title.
Explanation.- For the purposes of this article:
  1. where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession;
  2. where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies;
  3. where the suit is by a purchaser at a sale in execution of a decree when the judgmentdebtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgmentdebtor who was out of possession.
Twelve years. When the possession of the defendant becomes adverse to the plaintiff.

Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

What is adverse possession and on whom the burden of proof lies and what should be the approach of the Courts while dealing with such plea have been the subject-matter of a large number of cases.

An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, i.e., with the intention of excluding all persons from it, including the rightful owner, he is in adverse possession of it. Where possession could be referred to a lawful title it shall not be considered to be adverse.

Adverse possession is of two kinds:

  1. Adverse from the beginning or
  2. that become so subsequently.

If a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property although the true owner is ignorant of the adverse possessor being in occupation.

The plea of adverse possession is not a pure question of law but a blended one of fact and law.

Therefore, a person who claims adverse possession should show:

  1. on what date he came into possession,
  2. what was the nature of his possession,
  3. whether the factum of possession was known to the other party,
  4. how long his possession has continued, and
  5. his possession was open and undisturbed.
In order to prove the plea of adverse possession, the first requirement is (a) Actual Possession for the twelve-year period. To succeed, the acts of possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. If any one of these elements is missing at any time during the statutory period, the claim for possessory title will fail.

Possession must be open and notorious, not clandestine, for two reasons. First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period has begun to run. Because the doctrine of adverse possession is based on the true owner's failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner.

The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner then the possession is not adverse. The nature of the acts needed to establish possession depends on the type of property.

For some types of property, even intermittent use will satisfy the element of continuity. The sufficiency and character of the possession necessary to pass title must be considered and tested in the light of the circumstances which surround each particular case. Acts which amount to possession in one case may be wholly inadequate to establish it in another.

Matters such as the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests, are all matters to be considered in evaluating the adverse possession which has been proved to have been exercised by a trespasser or successive trespassers.

The law in respect of adverse possession, therefore, is now well settled. It should be nec vi nec clam nec precario i.e. peaceful, open and continuous. (Secretary of State for India v. Debendra Lal Khan, AIR 1934 PC 23, page 25). This decision has been referred and followed by in P. Lakshmi Reddy v. L.Lakshmi Reddy AIR 1957 SC 314 (para 4). Court further says that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.

In Chhote Khan & others v. Mal Khan & others AIR 1954 SC 575, Court observed that no question of adverse possession arises where the possession is held under an arrangement between the co-sharers. The possession of one co-heir is considered, in law, as possession of all the co-heirs. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.

In Darshan Singh v. Gujjar Singh (2002) 2 SCC 62, held: ...It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers. In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, it has been ruled that 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.

In Karbalai Begum v. Mohd. Sayeed (1980) 4 SCC 396 in the context of a co-sharer, it was held:
It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.

A three-Judges Bench in Parsinnin v. Sukhi (1993) 4 SCC 375, laid down the following three requisites for satisfying the claim based on adverse possession:
Party claiming adverse possession must prove that his possession mast be nee vi nee clam nee precario i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.

In Vidya Devi v. Prem Prakash (1995) 4 SCC 496, held: ...it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it.

In A.S. Vidyasagar v. S. Karunanandam 1995 Supp (4) SCC 570, Court has held that permissive possession is not adverse possession and can be terminated at any time by the rightful owner.

In Thakur Kishan Singh v. Arvind Kumar, AIR 1995 SC 73, Court said:
A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.

In Parwatabai v. Sona Bai 1996 (10) SCC 266, it was stressed upon the Court that to establish the claim of adverse possession, one has to establish the exact date from which adverse possession started. A person pleading adverse possession has no equities in his favour since he is trying to defeat the right of the true owner and, therefore, he has to specifically plead with sufficient clarity when his possession became adverse and the nature of such possession.

In Karnataka Board of Wakf v. Government of India & others (2004) 10 SCC 779, Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.

The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
  1. on what date he came into possession,
  2. what was the nature of his possession,
  3. whether the factum of possession was known to the other party,
  4. how long his possession has continued, and
  5. his possession was open and undisturbed.

A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

In Saroop Singh v. Banto and others, 2005 (8) SCC 330, Court held:
Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence.

In T. Anjanappa and others v. Somalingappa and another 2006 (7) SCC 570, the pre-conditions for taking plea of adverse possession has been summarized as under:
It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent to as to show that it is adverse to the true owner.

The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.

In P.T. Municipal Reddy & Ors. v. Revamma & Ors. AIR 2007 SC 1753, it was held:
It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession.

It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.

Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title.

Therefore, to assess a claim of adverse possession, two pronged enquiry is required:
  1. Application of limitation provision thereby jurisprudentially willful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
  2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor.
Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property in P.T. Munichikkanna Reddy v. Revamma, 2007(2) R.C.R.(Civil) 847 held:
Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.

In Annakili v. A. Vedanayagam and others, AIR 2008 SC 346, Court pointed out that a claim of adverse possession has two elements:
  1. the possession of the defendant becomes adverse to the plaintiff; and
  2. the defendant must continue to remain in possession for a period of 12 years thereafter.

Animus possidendi is held to be a requisite ingredient of adverse possession, well known in law. Court held: It is now a well settled principle of law that mere possession of the land would not ripen into possessor title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.

In Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and others, JT 2009 (5) SC 395, Court said: for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession.

In the case of Roop Singh v. Ram Singh AIR 2000 SC 1485 has held thus; mere possession for a long time does not result in converting permissive possession into adverse possession.

In Amarendra Pratap Singh v. Tej Bahadur Prajapati and others, AIR 2004 SC 3782 (2004) 10 SCC 65, held What is adverse possession Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff.

By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title.

It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.

In L.N. Aswathama & another v. V.P. Prakash JT 2009 (9) 527, held: To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.

State of Haryana v. Mukesh Kumar and others
, (2011)10 SCC 404 held A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension.

Therefore, even claim of adverse possession has to be read in that context. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest.The Parliament must seriously consider at least to abolish bad faith adverse possession, i.e., adverse possession achieved through intentional trespassing.

In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12.

In Chatti Konati Rao & Ors. v. Palle Venkata Subba Rao, 2011(2) R.C.R.(Civil) 824 held mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession.

Tribhuvanshankar vs Amrutlal
2014(2) SCC 788,2014(1) RCR(Civil) 206 The conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession.

In the case of Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRS. And Anr. 2018(10) Scale 630, the Apex Court has held thus;
Article 65 presupposes that limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. Adverse possession means a hostile assertion, i.e. a possession which is expressly or impliedly in denial of the title of the true owner.

The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case.

The said settled law has been reiterated by Supreme court in Mallikarjunaiah vs Nanjaiah & Ors.:2019(3) RCR(Civil) 12: there was no element of either adversity or/and hostility between two co-owners/brothers because in a dispute of this nature where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwiseit is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner the burden to prove the adverse possession is upon the person, who had set up this plea;

In Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors., 2019(4) R.C.R. (Civil) 1 has held : The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time.

The matter has been examined by a Constitution Bench in M. Siddiq (D) through LRs v. Mahant Suresh Das & Ors., (2019) SCC OnLine SC 1440 wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other.

In a reference made to a larger Bench in the case of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors., Civil Appeal No.7764 of 2014, decision dated 07.08.2019, the larger Bench had held that the plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield. once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession.

By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession.

Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled.

We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. The law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate.

The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

Thus adverse possession is boon for person in possession and claiming to have become owner by way of adverse possession and curse for the real owner.

Written By: Rajinder Goyal Advocate, Former Addl. Advocate General, Punjab, Punjab & Haryana High Court
r/o H.NO. 571,Sector 10-D,Chandigarh, Mobile:+91 9814033663

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