Saji Koduvath, Advocate, Kottayam

Propositions on Possession in a Nutshell

• Possession is a substantive right.
• It is heritable and transferable.
• Courts protect settled possession.
• Injunction is a possessory remedy.
• Possessory title is a good title as against everybody other than the lawful owner.
• Injunction will not be passed to favour a trespasser or a person in unlawful possession.
• It will suffice if he can prove his lawful possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769).
• Even if the plaintiff is a trespasser, injunction will be granted if he can prove that his possession is settled/established.
• If the possession of the plaintiff is ‘settled/established’, injunction will be ordered against a true owner. In such a case, the ‘injunction’ will be subject to the (result of) claim of recovery (if any) in a proper suit, by the true owner.
• It is not necessary for the person (in possession) claiming injunction, to prove his title – as long as the defendant does not claim title.
• Person in ‘settled/established possession’ may get injunction against true owner (not to disposes otherwise than on due process of law); but, it cannot be claimed after cancellation (by court) of the sale deed he relied (Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258.

Possession is a Substantive Right

Possession by itself is a substantive right recognised by law. It is heritable and transferable, as explained in the following decisions –

• Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,
• Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
• Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
• Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864). 

Settled Possession, Established Possession & Possessory Title

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

• “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

Possessory Title

The term ‘Possessory Title’ (in contrast to legally recognised ‘title appertain to ownership’) arises in the following situations-

• 1. Acquisition of ‘Original Title’: It is acquisition of title contradistinct to ‘derivative’ acquisition of title.
• 2. Possessory Title: ‘Possessory Title’ against everybody other than the lawful owner (For, possession by itself is a substantive right and good title; and ‘Right to Possession’ is a “Property”, under law).
• 3. Statutory title by Adverse Possession: Perfection of title by ‘Adverse Possession’ against the true owner; i.e., (legal) acquisition of title as recognised by Sec. 27 of the Limitation Act. (K V Swamynathan v. E V Padmanabhan, 1991-1 JT 83, 1990-2 Scale 1326)

‘Possessory Title’- On the Premise that ‘Possession’ is a Substantive Right

One who captures a property belonging to none, or reduces such a property to his possession, gets good title against the whole world – as in the case of birds in the air and fishes in the water. And, if it belongs to another, possession of the holder of such property is good title against all but the true owner (Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129); because, possession is the most important objective expression of ownership. According to Salmond, possession is the most basic relationship between men and things, and the possessor should have the ‘animus’ to possess the ‘corpus’.

‘Rival Titles’ in Adverse Possession – Title by ownership & Title by possession

Possessory title by adverse possession is basically a philosophical concept of property law; and it is merely acknowledged in common law and in the Limitation Act. It is explained in the thought provoking article, “Possessory Title: Its True Nexus with the Law of Limitation and the ‘Theory of Relativity’ ” by Anoop Bhaskar, Advocate, Thiruvananthapuram (2022 KLT). It is also pointed out that there are two ‘rival titles’ in a case of adverse possession; i.e., title by ownership (pertain to true owner) & title by possession (pertain to trespasser).

When a plea on adverse possession is propped up, the judicial determination is warranted on rival claims on ‘title on ownership’ and ‘title by adverse possession’; and also, ‘presumptions on title’ and ‘presumptions on possession’. If the trespasser can prove adverse possession against the true owner, as provided under Article 65 of the Limitation Act, the law favours the trespasser endorsing his Possessory Title. The learned author lays down the doctrine of ‘preference’ upon the two ‘rival titles’ as under:

• “It is true by the operation of limitation prescribed under Article 65, the prior owner loses his right or remedy to sue for possession based on title. At this point, the adverse possessor acquires title by the virtue of original acquisition. … In other words, the possessor will have an entitlement to the right to possess the land against others; i.e., he is having the title to possess. At the same time the prior owner will be denying the adverse possessor’s entitlement to possession and be claiming the entitlement to all the incidents of ownership, including possession. Basically, he will be claiming title to ownership on the land. This is how there will exist two rival titles in the case of a title dispute, i.e., title to ownership & title to possession. Now the Courts will be called upon to measure the strength of each title. If the adverse possessor proves that the prior owner has lost his right to recover possession by way of limitation, it will mean that the title of the prior owner will be weaker than adverse possessor.”

Possessory Title & Adverse Possession

• If ‘no title in either party, possession alone decides’.
• Possession is a good title of right against any one who cannot show a better.

Possession is Good Title Against All but the True Owner

In Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129 our Apex Court relied on Narayana Row v. Dharmachar, ILR 26 Mad. 514, where the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession was, under the Indian, as under the English law, good title against all but the true owner. 

‘Possession is Good Against All But the True Owner’ & Sec. 6 of the Sp. Relief Act

The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73.

The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’. It is held in this decision that if ‘no title in either party, possession alone decides‘.

In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:

• “17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), 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 for ever 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 possessory 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.”

Read Blogs (Click): POSSESSION is a Substantive Right in Indian Law

• When ‘Possession Follows Title’; ‘Title Follows Possession’?

In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:

• “9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond.
• Salmond on Jurisprudence states:­
  • “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.x x x x xIn English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to  restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
  • Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
• 10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
• 11. It was also observed by this Court in Nair Service Society Ltd. (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”

Present Indian Law on Adverse Possession

• In Parry v. Clissold, (1907) AC 73 it was pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner would acquire an absolute title.

After the Limitation Act, 1963, the legal position in India, on Adverse Possession, has been changed as under:

• If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the (adverse) possessory owner may acquire an absolute title.

Because,

• Articles 65 of the Limitation Act, 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession.

The 3 important modern propositions brought-in as to adverse possession (in India) are:

• Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
• Trespasser must know who the true owner is.
• Burden to plead and prove adverse possession is upon the defendant.

Adverse possession arises from the provisions in Article 65 of Limitation Act, 1963. ‘Positive and hostile acts’ of the trespasser is the pre-requirement of Adverse Possession; because, mere possession is not sufficient  under Article 65, but it requires ‘adverse’ possession.

See Blog: Adverse Possession: An Evolving Concept

Article 65 of Limitation Act reads as under:

In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed that 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.

Following are the other important decisions on adverse possession:

1. Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
2. PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
3. Ravinder Kaur Grewal v. Manjit KaurAIR 2019 SC 3827.

Prescriptive Rights – Inchoate until the title is upheld by a competent court

The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner). Because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).

No doubt, it is true, one can acquire right of easement or adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.

It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court.

• Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in:
• Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574;
• Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97.
• See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:

• “It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314.)

In Ramanunni Vaidyar v. Govindankutty Nair, 1998(2) Ker LT 47, it is found that a person who has not acquired or perfected a right cannot maintain an action against the owner of the land over which the right is claimed. It is held as under:

• In my view, on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. In other words, a right, properietory or otherwise, has to be shown for obtaining relief (Krishna Pillai v.Kunju Pillai 1990 (1) KLT 136, referred to).

S. 27,  Lim. Act Gives Substantive Right so as to Seek Declaration and Recovery

Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.

Sec. 27 of the Limitation Act speaks that 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.

The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)

Adverse possession confers title under Sec. 27 (by necessary implication, because extinguished title of real owner comes to vest in wrongdoer – because, rights thereon had already been lost to the true owner, and passed over to the ‘possessory/adverse’ owner).

Therefore it is clear that Sec. 27 is a provision in the Limitation Act that gives a substantial right to a party.

Person Acquiring Title by Adverse Possession can use it as a Sword

In view of Sec. 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827: (2019) 8 SCC 729, that the person acquiring title by adverse possession can use it as a sword.