Law on Adverse Possession – The Blog of Daksh Pandit

The Law on adverse possession has its origin in one of the oldest codes of law viz. “the code of Hammurabi” prevalent in the ancient Babylon in Mesopotamia approximately 2000 years before Christ era. Law 30 in the said code contained the following 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”

Adverse possession means possession of the land or interest in land by a wrong man against the will of the right man. Adverse possession as its words imply, must be actual possession of another’s land with intention to hold it and claim it as his own, to the exclusion of the rightful owner. It must commence with the wrongful possession of the rightful owner at some particular time and must commence, in wrong against right.¹

Article 65 of the Limitation Act, 1963 [“the Act”] prescribes the limitation period of 12 years within which a suit for possession of an immovable property must be filed before the court. The said period of limitation commences from the date when the possession of the property by the trespasser becomes adverse to the true owner of the property. Failure of the true owner of the property to file a suit for recovery of possession within 12 years from the date when the possession of the trespasser became adverse to the true owner would result in vesting of title of the property in the trespasser who had adversely occupied the property for a continuous period of 12 years preceding the date of filing of the suit by its true owner. 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.²

The classical requirements of adverse possession are embodied in a Latin legal term viz. Nec vi, nec clam, and nec precario.³

Nec vi – This means neither by force. If the rightful owner of the property is constantly visiting the property, trying to get back possession, but the adverse possessor is throwing him out and is maintaining his wrongful possession by force, then his adverse possession does not begin.
Nec clan– This means neither secretly. If the possession of the wrongful occupier is a guarded secret and the legal owner cannot be reasonably expected to know of the fact of the loss of possession to the wrongful occupier, then also adverse possession does not begin.
Nec precario – This means neither license or permission. If a person keeps a caretaker in his house and his duty is to take care 24 hours, without the owner being able to visit the property, then the same would not crystallize in a claim for adverse possession as he does not occupy the property adversely, but with permission.

Ingredients of Adverse Possession

Continuous possession– Possession must be continuous, without gaps, breaks or interruption for a period of 12 years.
Peaceful– The trespasser must be able to assert its authority over the property.
Hostile- The possession must be hostile to the true owner of the property.
Open- The possession must be open for all the world to see to the extent that public at large believe that you are the real owner of the property. Possession must not be held in a secretive manner.
Express or implied- The possession must be held in such a manner that the real owner of the property has knowledge of it that his property has been held adversely against his will.

In order to set up a claim for adverse possession the aforesaid ingredients must be shown to coexist.⁴ However, there is no hard and fast rule to set up a plea for adverse possession as it is not a question of law but a blended question of fact and law. A trespasser, possessing a property for a continuous period of 12 years or more, alone, will not succeed in his plea of adverse possession. The same is subject to various caveats which are discussed hereinbelow in detail.

1. Animus

Animus in the context of adverse possession refers to the hostility exhibited by the adverse possessor against the true owner of the property to adversely possess his land. Mere long possession for a period of 12 years or more in absence of the necessary animus will not confer the title of the property upon the adverse possessor as there is always a presumption in favour of the title holder about the holder being in possession of the property.⁵ A person claiming adverse possession must have Animus Possidendi i.e. intention to possess or in other words intention to dispossess the true owner of the property.

Case Laws

i.Government of Kerala and Anr. v Joseph and Ors.⁶

The Respondent (claiming adverse possession) stated that he had been enjoying the property for a period of 40 years and therefore, the title of the property, which originally belonged to the government, is now conferred upon him due to his continuous possession of 40 years. However, the court noted that, apart from vague plea of adverse possession, the Respondent failed to prove, with clear and cogent evidence that he was in open, continuous and hostile possession of the land held by the government “merely a long period of possession, does not translate into the right of adverse possession. Surmises, conjectures and approximations cannot serve the basis for taking away the right over land resting with the State and place the said bundle of rights in the hands of one who did not have any such rights.”

ii.Gaya Prashad Dixit vs Nirmal Chander and Anr.⁷

In this case the person entered into possession of the property under a license agreement. After termination of the license agreement, he continued to be in possession of the property and claimed adverse title. The court noted that there must be some overt act on the part of the licensee indicating assertion of hostile title. In the present case, there was nothing to show on behalf of the licensee that he asserted hostile title in himself. Mere continuance of unauthorized possession even for a period of 12 years is not enough.

iii.Kasturi Devi vs Chunilal⁸

In this case the mortgagee remained in possession of the mortgaged premises despite extinguishment of the mortgage without any express repudiation of the relation created by the mortgage and it was in this circumstance the court noted that the aggressive nature or character of adverse possession was absent which alone will prove animus. A person’s secret intention to hold the property without the knowledge of the true owner of the property will not confer the title of the property in him by way of adverse possession. Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession, however long continued, adverse to him.

2. Knowledge of true owner

A person setting up a plea of adverse possession must acknowledge the true owner of the property since a claim for adverse possession has the effect of dispossessing the true owner of the property. If A, adversely occupies property, believing B to the be owner of it, however, later finds out C to be the real owner of the property, his plea for adverse possession will not stand. If the defendants are not sure who is the true owner, the question of their being in hostile possession and the question of denying the title of the true owner do not arise.⁹ The real owner of the property must be accorded an opportunity to assert his legitimate right over his property. Adverse possession must be open, continuous, notorious, hostile and in complete denial of the title of the true owner of the property. As held in Kasturi devi (supra) it must not be secretive. It must be open and hostile enough to bring it to the knowledge of the true owner¹⁰

Although it is not necessary that the adverse possessor must communicate to the true owner his intention to disposes him. However, the actions of the adverse possessor must be open and hostile enough that any reasonable inquiry by the true owner would make him aware of the intentions of the adverse possessor. Plea of adverse possession is basically an admission of antecedent title in another person followed by its destruction by adverse possession. Where the defendant did not admit title in any person and asserted title in themselves, plea of adverse possession will not stand.¹¹

Case Laws

i. T. Anjanapaj and Ors. Vs Somlingappa and Ors.¹²

Plaintiff filed a suit for declaration of title in a property which he had occupied for period of more than 12 years without knowing who the true owner of the property was and directly asserted his title over the property by way of prescription. The High Court held that the Plaintiff had acquired title over of the property by being in possession of it for more than 12 years with no opposition and it was immaterial for the Plaintiff to be aware of the true owner of the property. The judgment of High Court was assailed before the Supreme Court, the court held that for deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. “Adverse possession is commenced at wrong and is aimed at right.” A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property. Since the Plaintiff was not sure who was the true owner of the property, the question of their being in hostile possession and the question of denying the title of the true owner do not arise.

ii. M. Siddique (D) Through Lrs vs Mahant Suresh Das and Ors.¹³ [“Ayodhya Dispute”]

Interestingly, a plea of adverse possession was also raised in the Ayodhya dispute, by Muslims, by seeking an alternative prayer viz. that even assuming, but not admitting, that there existed a Hindu Temple on the land prior to construction of Babri Masjid, now Muslims have come into adverse possession of the land by being in possession of the same right from the construction of the Mosque till its desecration, a period of 433 years. However, the constitution bench of Supreme Court did not find merit in the plea and observed that a plea of adverse possession by Muslims against the Hindus or the Temple would amount to an acceptance on their part that Hindus were true owner of the land which would be inconsistent with their main prayer.

3. Pleadings required to set up a plea for adverse possession

A person claiming adverse possession has not equities in his favour. Since he is trying to defeat the title of the true owner of the property, it is for him to clearly plead and prove with all facts necessary to establish his adverse possession. The Supreme Court in Karnatka Board of Wakf v. Government of India and Ors.¹⁴ observed that a person who claims adverse possession must plead the following in order to set up a case for adverse possession-

On what date he came into possession;
What was the nature of his possession;
Whether the factum of possession was known to the other party;
How long his possession has continued, and;
His possession was open and undisturbed.

A mere suggestion in the relief clause that there was an uninterrupted possession for 12 years or that the plaintiff had acquired “absolute title” does not amount to a plea of adverse possession.¹⁵ Plea of adverse possession has to be pleaded with certainty and proved to the hilt.¹⁶

Case Law

Hemaji Waghaji Jat v. Bhihabai Khngrabhai Harijan and Ors.¹⁷

The Plaintiff in this case had been in occupation of a property for over a period of 12 years and filed a suit for declaration of title in him. The Trial court held that he became owner of the property by adverse possession which could be proved by placing reliance upon register of cultivation. It is pertinent to note that the Plaintiff had neither pleaded adverse possession, nor an issue was framed by the trial court in that regard. The case travelled to Supreme Court wherein the court placed reliance upon B.N. Venkatarayapa v. State of Karnataka¹⁸ wherein it was held that in absence of crucial pleadings regarding adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the land in question claiming right, title and interest of the true owner, the petitioner cannot claim that they have perfected their title by adverse possession. The Court ultimately reversed the finding of the trial court in view of the fact that the Plaintiff had nowhere pleaded adverse possession.

4. When possession is referable to lawful title it does not become adverse

Merely by entering into possession of a property by way of lease, mortgage or under an agreement, one cannot, by mere denial of the true owner’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Cases like these fall in the category of permissive possession whereby the owner of the property allows the person to occupy the property under a rent/lease/mortgage or as a caretaker of the property. A person cannot on one hand say that they came into possession of the property by way of lease and on the other hand seek adverse possession of the property at the same time as both the pleas are inconsistent. To set up a plea for adverse possession one has to let go of the lawful title, in this case “lessee” and completely vest the title in themselves by denying the title of the true owner.

Case Law

Mohan Lal (deceased) through his legal Lrs Kachru and Ors v. Mirza Abdul Gaffar and Ors.¹⁹

The Appellant, in this case came into possession of suit land under an agreement to sell dated 09.03.1956. He made part consideration of Rs 500 and obtained possession of the lands. However, the Appellant failed to make the balance payments, which resulted in the suit lands being sold to the Respondent. The Respondent filed a suit for recovery of possession of land from the Appellant which was decreed by the trial court and the appellant challenged the said judgment before Supreme Court resting his plea on two grounds viz.

Since he had been in possession of land since 08.03.1956, therefore, he had perfected his title by adverse possession.
Secondly, he pleaded that he is entitled to retain possession by operation of Section 53-A of Transfer of Property Act, 1882

The Court held as follows-

“4. As regards the First plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor of his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

5. Against whom adverse possession can run

A plea of adverse possession must be against a living person since the ingredients of adverse possession mandate the adverse possession to be expressly or impliedly in the knowledge of the true owner. As held hereinabove, if a person does not know who the true owner of the property is, the question of their being in hostile possession to or denying title of the true owner do not arise. In a case where a Hindu wife came in possession of her husband’s estate believing him to be dead, however, later found that he was alive, her possession of his property cannot be adverse to him.²⁰

6. Limitation Period

A plea of adverse possession needs to examined with scrutiny in light of the fact that it is not purely a question of law but a blended question of fact and law. All the ingredients of adverse possession as discussed hereinabove must be shown to be co-existing for claiming adverse possession. Article 65 of the Limitation Act prescribes a period of 12 years within a which a suit for recovery of possession must be filed in case of immovable property. The starting point from when the limitation period of 12 years is to commence is laid down in following terms in Article 65-

“When the possession of the defendant becomes adverse to the plaintiff”

The question, when the possession becomes adverse to the plaintiff needs to be discerned from the facts of each case and pleadings in that regard. In absence of pleadings showing when the possession became adverse, the suit must fail. As held in the Karnataka Waqf, the essential pleadings must be present in the suit in order for the court to discern from which date the possession became adverse to the true owner so as to determine the limitation period. Period of limitation will only commence once the ingredients of adverse possession are shown to be co-existing. In Saroop Singh vs Banto²¹ the Supreme Court held that the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant’s possession becomes adverse. In other words, if a trespasser is occupying a property for over a period of 12 years and after such period the true owner finds out that his property has been illegally occupied and asks the trespasser to vacate the same. The trespasser, on contrary, files a suit for declaration of title on the plea of adverse possession, then such suit will not stand as he only filed the suit when he realized that the property belongs to someone and his possession of it came under a threat. The ingredients of adverse possession are absent. The trespasser must be able to point out the date from where the possession became adverse to the true owner satisfying all the ingredients of adverse possession.

7. Adverse possession can be used as a shield and a sword.

The language of Article 65 prescribing the time from which the limitation period begins to run uses the terminology of “Plaintiff” and “Defendant” as reproduced herein above which could easily mislead one into misconstruing the same by giving it a meaning that a plea of adverse possession can only be used as a defense by a defendant when the real owner (“the plaintiff”) brings a suit against him in a court of law. Various decisions of High Courts gave the aforementioned interpretation and opined that a plea of adverse possession can only be used as a shield and not as a sword.

Repelling the aforementioned confusion, a three-judge bench of the Supreme Court in Ravinder Kaur Grewal and Ors vs Manjit Kaur and Ors²², after going through a conspectus of case laws, clarified that a plea of adverse possession can be used as both viz. a shield and a sword. An adverse possesor who has perfected his title by satisfying the ingredients of adverse possession can file a suit to protect his property.

8. Critique of the law

The law on adverse possession has come under criticism from the Supreme Court on a number of occasions since, in effect, the law of adverse possession stems from the root of illegality viz. dispossessing someone who is the true owner of the property and vesting in the adverse possessor the title of the property subject to satisfying the ingredients of adverse possession. A person may have purchased a property by his own hard work, toil and money, all for it to land in someone else’s hands free of cost. The gross misuse of the law was seen in the matter of State of Haryana vs Mukesh Kumar and Ors.²³ wherein the Government itself- in this case police department, had filed a suit seeking declaration of title by way of adverse possession over a property held by a common citizen of the country. The trial court dismissed the suit deeming it without merit and evidence or pleading showing adverse possession of the property. The police department challenged the said judgment of the trial court before the Ld. Additional District Judge who also dismissed the appeal of police department imposing a cost of Rs 25,000/- for unnecessarily dragging a common man to litigation. The police department did not rest there, it challenged the decision before High Court which also dismissed the Appeal. Unfortunately, after three sounding defeats, the police department reached the Supreme Court.

The Supreme Court came down heavily upon the state and expressed its displeasure by stating “If the police department of the state with all its might, is bent upon taking possession of any land or building in a clandestine manner, then perhaps no one would be able to effectively prevent them” The Court further observed that “If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be total anarchy in the entire country”

It is in the aforesaid backdrop, various decisions of the Supreme Court urged the Parliament to reconsider the law on adverse possession. In response, the Law Commission of India vide a Report released in May 2023, disagreed with the apprehensions of the Supreme Court to abrogate the law.

Conclusion

The law on adverse possession, as problematic or draconian it is, is rooted in the idea that a land must not be left vacant and must be put to judicious use. It is used to punish people who fail to maintain vigilance over their property. Although it vests title in a person who has come into possession of the property bearing illegal motives, a plea of adverse possession is rather difficult to prove and, in most cases, the Courts have declined to cede to the prayer of adverse possession. The law Commission of India, in its report dated 24.05.2023 noted that a plea of adverse possession, in a suit, is often perfunctorily raised and not pursued and no evidence is adduced in support thereof. From a conspectus of various cases it is observed that although the law on adverse possession legitimizes an act which is illegal when seen from the lenses of morality, at the same time it demands strict compliance with the ingredients of adverse possession to pass muster in the court of law. The true owner of the property cannot be dispossessed overnight on an absolute whim as there is a general presumption in his favour that he has always been in possession of his property.

By Daksh Pandit