Saji Koduvath, Advocate, Kottayam. 

How to Plead Adverse Possession

It is really a troublesome matter for the advocates. Karnataka Board of Wakf v. Govt of India – (2004) 10 SCC 779; T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753, guide us in this field. It may be necessary to plead the following modules.

• The claimant has been in ‘hostile and open, continuous uninterrupted as of right‘ possession of the land,
• in denial of the title of the rightful owner,
• adversely to the interest of the owner of the land,
• started with wrongful dispossession of the rightful owner
  • (Note: Article 65, Limitation Act says – period 12 years from dispossession),
• exercising absolute rights of ownership in respect of the land,
•  on and from .. . .. (Specify date).

And, it is appropriate to plead ‘hostile and open’ possession as under:

• Claimant’s acts were hostile enough to make the true owner aware of the adverse possession;
• or, the claimant made the true owner knew as to his hostile acts or adverse possession (from the inception).

Party claims Adverse Possession must know the Actual Owner

In M. Radheshyamlal Vs. V. Sandhya, (Abhay S. Oka & Ujjal Bhuyan, JJ.) held on March 18, 2024, as under:

“12. Therefore, to prove the plea of adverse possession:-

• .(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
• (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
• (c) The plaintiff must also plead and establish when he came into possession; and
• (d) The plaintiff must establish that his possession was open and undisturbed.
• It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.

• 13. … When a party claims adverse possession, he must know who the actual owner of the property is. Secondly, he must plead that he was in open and uninterrupted possession for more than 12 years to the original owner’s knowledge….”

Adverse Possession according to the Limitation Act of 1963

• 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).
• Continuance of ‘Adverse Possession’ for 12 years confers ‘Title’ under Sec. 27, Limit. Act.
• But, rights under ‘adverse’ possession will be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.

To attract ‘adverse-possession’, possession for mere 12 years insufficient

• Under the (present) Limitation Act, 1963 (Article 65),  adverse possession arises, only ‘by the positive and hostile acts’ of the trespasser; and, the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years. Therefore, mere 12 years’ possession by trespasser is insufficient to bring home adverse possession.
• The true owner, therefore, can bring the suit based on title even after 12 years (of losing possession), for recovery, and he will lose property only if the trespasser proves ‘adverse‘ possession.
  • Article 142 of the (repealed) Limitation Act, 1908, which dealt with Adverse Possession, did not put down the term ‘adverse’. Therefore, the true owners lost title, under this Act, if they failed to prove possession for 12 years; and they had the burden to show possession within 12 years.
  • Under the old Act of 1908, a true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).

1963 Limitation Act casts onus on the trespasser to prove ‘adverse’ possession

• The present Act of 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing the true owner and bringing his attention to the ‘trespass’).

Mere possn. for Howsoever Long – will not result in adverse possession.

• If no adverse possession, mere possession, of trespasser, howsoever long, will not lose the right of the true owner to recover property on the basis of his title. See:
  • Government of Kerala v. Joseph, AIR 2023  SC 3988 (Mere possession over a property for a long period of time does not grant the right of adverse possession on its own);
  • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461,
  • Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729 (three-Judge Bench) (Trespasser’s long possession is not synonymous with adverse possession.)
  • Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324 (The defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be.),
  • Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756 (it 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.),  
  • Chatti Konati Rao v. Palle Venkata Subba  Rao, 2010-14 SCC 316 (Mere possession however long does not necessarily mean that it is adverse to the true owner.);
  • T. Anjanappa v. Somalingappa, 2006-7 SCC 570 (It is well recognized proposition in law that mere possession however long does not necessarily means 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),
  • Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779 (Non-use of the property by the owner even for a long time won’t affect his title.)
  • Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591 (Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.)
  • Gaya Prasad Dikshit v. Dr. Nirmal Chander, 1984-2 SCC 286 (Mere continuance of unauthorised possession even for a period of more than 12 years is not enough.)

Three important modern propositions as to adverse possession (in India)

• 1.  Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
  • Article 65, Limitation Act says – period 12 years, from ‘dispossession‘.
  • Note: ‘Wilful neglect element’ (that is, the owner has abandoned the property) is not given a go bye. Thus, there is a two-pronged enquiry – (i) animus to dispossess by the trespasser (ii) wilful neglect element by the true owner.
• 2. Trespasser must know who the true owner is.
• 3. Burden to plead and prove adverse possession is upon the defendant (trespasser).

Hemaji Waghaji : (2009) 16 SCC 51: AIR 2009 SC 103 held that there is no equities – high time to abolish or at least change the law. But, the subsequent authoritative decisions including Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827 (three judge bench) affirmed the punch of adverse possession.

The 22^nd Law Commission (Report No. 280 of the year 2023) did not pursue the observations in Hemaji Waghaji; on the contrary, upholding the law on adverse possession, it emphasised that the present law ensures that ‘there is always an owner or claimant to the contentious land, and that it is precisely the reason why the law validates the claim of adverse possession made by the squatter’.

Mere Animus Possidendi, Not Sufficient

Adverse Possession is a common law doctrine. The true title holder loses his title by adverse possession; and it is acquired by the ‘trespasser’. Period of limitation, for acquiring adverse possession, under Article 65 of the Limitation Act, is 12 years. It starts, ‘when the possession of defendant becomes adverse to the plaintiff’.

Therefore, the trespasser should have ‘dispossessed’ the true owner by an overt act or by inviting the true owner’s specific attention to attract ‘adverse possession’ (as it was said to be needed in acquiring ‘adverse possession’ against a co-owner, in early times). In other words, intention to dispossess true owner is necessary; or intention to possess property of true owner (mere animus possidendi), not sufficient. The pivotal point that constitutes adverse possession is

• (i) the positive and hostile acts of the trespasser; and, 
• (ii) not the inaction or acquiescence of the true land owner.

Historical Background

On the subject “The Law on Adverse Possession”, the 22^nd Law Commission, headed by former Chief Justice of Karnataka High Court, Ritu Raj Awasthi (Chairperson), and comprising Full-Time Members, Justice (retired) K.T. Sankaran (Kerala High Court), Prof. (Dr.) Anand Paliwal, Prof. D.P. Verma, in Report No. 280 of the year 2023, observed that  the rudimentary form of adverse possession could be found as early as 2000 B.C. in the code of Hammurabi, of which Law 30 specifically dealt with the concept of adverse possession.

The Law Commission [referring Chilperic Edwards (ed.), The Hammurabi Code and the Sinaitic Legislation 32-33 (1904);  Also see: J.G. Sprankling, “An Environmental Critique of Adverse Possession” 79 Corneil Law Review 816-884 (1994)] quoted Law 30 (of the Code) which reads as under:

• “If a chieftain or a man leaves his house, garden, and field and hires it out, 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.”

It is also pointed out by the Law Commission that the phrase “adverse possession” was apparently coined in a 1757 English decision in Taylor d. Atkyns v. Horde; and that the Statute of Westminster, 1275 was the first statute that limited actions for the recovery of land.

Adverse Possession – ‘Evolving’ Concept

Adverse possession being essentially a judge-made law, and not exhaustively defined in any statute, the concept of adverse possession has been ‘evolving’. It is interesting to note that there were divergent views even with respect to the very fundamentals of ‘adverse possession’.

Adv. Possession on termination of his licence – must be some ‘overt act‘

In Gaya Prasad Dikshit v. Dr. Nirmal Chander, (1984) 2 SCC 286 , it is observed as under:

• “1… It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough.”

Earlier view – Inaction of true-owner matters (not overt-acts of trespasser) 

At one time it was considered that inaction/acquiescence of the true owner for 12 years brings-in adverse possession. Because,

• Article 65, which speaks of as to limitation of suits (to be filed by the plaintiffs) does not specifically speak as to (i)  intention to dispossess title owner or (ii) knowledge on the part of trespasser as to who is the true owner.
• “Nec vi, nec clam, nec precario” does not refer to (or speak as to) ‘hostile’ possession
• “Animus possidendi” also does not say – hostile possession.
• Inaction, acquiescence etc. of true owner are the material considerations – to become a ‘possession’ adverse to plaintiff.
• Therefore, to attract adverse possession the trespasser need not know the true owner.

Philosophy of the earlier view can be seen from Amrendra Pratap Singh v. Tej Behadur (Para 22 – AIR 2004 SC 3782)

• “What is adverse possession? ………The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. ……… 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. ………..”

Present view – Give prominence to overt and adverse acts of trespasser. 

Following are the important decisions to see the present view on adverse possession:

1. Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779
2. T. Anjanappa v. Somalingappa, (2006) 7 SCC 570]
3. PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
4. Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729
5. Government of Kerala v. Joseph, AIR 2023  SC 3988.

PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is an authoritative decision of the Supreme Court that discussed various views on adverse possession. It is observed in this decision as under:

• “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.”
  • ^{#See Blog: Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?}
• “Thus, there must be intention to dispossess (Article 65, Limitation Act – period 12 years from dispossession). And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object.“

Thereafter it was emphasised as under:

• “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.”

U.N. Mitra, in the “Law of Limitation and Prescription” (Tagore Law Lectures – 12th Edition, Vol.2, Page 1430) it is stated as under:

• “A squatter is one who settles on land without title or with a view to acquiring title. He is a person who settles or locate on land enclosed or unenclosed with no bona fide claim or colour of title and without consent of the owner. He is merely an intruder and no matter how long he may continue there, no right in law vests in him. A squatter who does not set up a claim of right cannot plead adverse possession. No length of squatting possession would operate as a good or valid defence in a suit for possession by the true owner. A mere squatter or intruder who does not deny the title of the true owner or set up any right in himself cannot claim to be in adverse possession. ………” (Quoted in: K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98)

In a nutshell, adverse possession arises from:

1. acquiescence of the owner to the hostile acts; and
2. hostile acts of the trespasser.

“A right not exercised for a long time is non-existent“

The doctrine that law assists those who are vigilant with their rights and not those that sleep thereupon is contained in the maxim “Vigilantibus Non Dormientibus Jura Subveniunt”.

In Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301, relating to disciplinary proceedings against an employee of the Bank, it is observed as under:

• “A right not exercised for a long time is non-existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay.”
  • Note:
  • 1. It is doubtful whether mere delay, laches and acquiescence apply to ‘adverse possession’ matter – in view of the specific provisions in the Limitation Act with regard to adverse possession.
  • 2. See doctrines of abandonment (or deliberate relinquishment) and acquiescence amounting to estoppel may have more force on the matter of adverse possession, they being arise from the wilful conduct of the person concerned.

Owner “not take care to know notorious facts”  and hostile colour of title, required

In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, it was observed as under:

• “7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.” (Quoted in: M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1)

Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, has held as under:

• “60. 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. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession…”

Doctrine of Estoppel, delay, laches, acquiescence – applied to non-suit litigants

It is held, in Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301, further as under:

• 29. Before proceeding further, it is important to clarify distinction between ‘acquiescence’ and ‘delay and laches’. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain _{^{(See Prabhakar v. Joint Director, Sericulture Department, (2015) 15 SCC 1. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das and Suyamal Das, AIR 1925 Cal 1107)}}.  In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance _{^{(See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax, (1992) 194 ITR 584)}},  which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention _{^{(See Krishan Dev v. Smt. Ram Piari AIR 1964 HP 34)}}.  Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and inspite of the infringement takes no action mirroring acceptance _{^{(See “Introduction”, UN Mitra, Tagore Law Lectures – Law of Limitation and Prescription, Volume I, 14th Edition, 2016)}}. However, acquiescence will not apply if lapse of time is of no importance or consequence.
• 30. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person ^{_{(See M/S Vidyavathi Kapoor Trust v. Chief Commissioner Tax (1992) 194 ITR 584)}}. Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.“

22^nd Law Commission Report

On the subject “The Law on Adverse Possession”, the 22^nd Law Commission in its 280^th Report (placed on 24^th May, 2023), observed that  ‘there is no justification for introducing any change in the law relating to adverse possession’.

Crux of the Law Commission Report

The crux of the Report of the 22^nd Law Commission is the answer to the following question:

• Why the law validates the claim of adverse possession made by a squatter?

It is answered by the Law Commission as under:

• “If no one has effective authority over a property, there arises a vacancy in the position of owner of that property. Such a vacancy results in destabilizing the other peoples’ relations with respect to that property. In such a circumstance, the law of adverse possession ensures that there is always someone in charge of that property in the eyes of the law, and hence no unsettling vacancies. This is precisely the reason why the law validates the claim of adverse possession made by the squatter only when the owner can be shown to have lost effective authority. This is also the rationale behind the owner being able to defeat the adverse possessor’s claims by showing that he continues to be in charge of the property. Ultimately, the concept of adverse possession addresses the law’s most pressing concern which is not who is owner but rather that the office of owner is filled instead of lying vacant.”

Notable Observations of the Law Commission on Adverse Possession

The Law Commission made the following important and notable observations on adverse possession –

• “6.12. The Limitation Act applies to courts and not to quasi-judicial bodies or Tribunals. (See L.S. Synthetics Ltd. v. Fairgrowlh Financial Semices Ltd., AIR 2005 SC 1209) (2004) 11 SCC 456; M.P. Steel Corporation v. Commission of Central Excise (2015) 7 SCC 582. 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.
• 6.13. Though the period of limitation prescribed in the Limitation Act precludes a plaintiff from bringing a suit which is barred by Limitation, there is no such limitation so far as any defence is concerned. The rationale behind the law of limitation is that it is founded on public policy. The concept of adverse possession is based on the legal maxim ‘vigilantibus non-dormientibus subvenit lex’ which means that the law favours only the vigilant and not the sleepy – only the active citizen and not those who are dormant or in other words those who are not concerned about their rights.”
• 7 .ll. Mere continuance of unauthorised possession, for a period of more than twelve years is not enough.
• “…. that mere termination of a licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than I2 years is not enough.” (Gaya Prasad Dikshit v. Dr. Nirmal Chander AIR 1984 SC 930: (1984)2 SCC 286)
• “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 so 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. “(See T. Anjanappa  v. Somalingappa, (2006) 7 SCC 570.)

Read Blog: 22nd Law Commission  Report on ‘Law on Adverse Possession’

Article 142 of the (Repealed) Limitation Act, 1908

Article 142 of the (repealed) Limitation Act, 1908, which dealt with Adverse Possession, did not put down the term ‘adverse’. 

Article 142 of the Limitation Act, 1908 reads as under:

142. For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession

12 years

The date of the dispossession or discontinuance

Article 142 of the Limitation Act, 1908 provided that the true owner would lose his right to recover the property from a trespasser if he failed to file a suit within the period of 12 years.

Art. 65 of Limtn. Act, 1963 Made Major Changes in Law of Adverse Possession

Articles 65 of the Limitation Act, 1963 brought-in  complete change insofar as the onus of proof is concerned:

65. For possession of immovable property or any interest therein based on title.

12 years

When the possession of Defendant becomes adverse to the plaintiff.

When these provisions Attracted

• Plaintiff must have been dispossessed by the defendant.
• Both Acts deal with limitation for suits for recovery of possession.

Old Act of 1908 – Backdrop

• Under the old Act of 1908, the true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).
• In other words, under the old Act, the true owner would lose his right to recover the property if he failed to file a suit within the period of 12 years.
• Under the 1908 Act, it was immaterial – whether the trespasser ‘acquired’ right of adverse possession against the true owner, knowing him and bringing his attention to the ‘trespass’ (as required in 1963 Act).
• The requirement of ouster, for attracting Adverse Possession, needed only in case of permissive or joint possession, including that of a co-owner or of a licensee or of an agent

New 1963 Act – Backdrop

• Under the new Limitation Act, 1963 (Article 65), the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years. Therefore the true owner has no burden to show possession within 12 years (as required under the old Act).
• The new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing him and bringing his attention to the ‘trespass’).
• Under the 1963 Act, adverse possession arises, only if dispossession (Article 65)of true owner and only by the positive and hostile acts of the trespasser; and, mere possession is not sufficient (but, it must be ‘adverse’ to the true owner).
• If no adverse possession, mere possession, of trespasser, however long, will not lose the right of the true owner (on the ground of limitation) to recover property on the basis of his title. [See: Government of Kerala v. Joseph, AIR 2023  SC 3988; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (two-Judge Bench) (1984) 2 SCC 286, Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591;Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756].

Article 64 and 65 Analysed

Article 64 and 65 of Limitation Act read as under:

64. For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.	12 years	The date of dispossession.
65. For possession of immovable property or any interest therein based on title.	12 years	When the possession of Defendant becomes adverse to the plaintiff.

General

• Plaintiff must have been dispossessed by the defendant (to attract both Articles).
• Both articles deal with limitation for suits for recovery of possession.
• Both are independent and apply two different situations.
• In both cases the defendant can rely on his title or “perfection” of title by ‘adverse possession’ (without a counter claim – Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827).

Article 64

• Article 64 is based on previous possession of plaintiff (unlike Article 65 which speaks about Title).
• Article 64 is not based on title of plaintiff (But, it can be possessory title).
• Article 64 applies only if the plaintiff lost possession within 12 years (in other words, he must have been in possession of the property within twelve years prior to suit. (Tribeni v. Soaroop, AIR 1911 Raj 232)  
• Under Article 64, it is unnecessary to inquire – whether the defendant’s possession was ‘adverse’. (Muhammad Amanullah v. Badan Singh (1889) ILR l7 Cal 137 (PC).
• Under Article 64 the nature of the plaintiffs possession is not material. Article 65 specifically refers to “immovable property or any interest therein” whereas Article 64 mentions only “immovable property”. So the interest in immovable properly stands outside the scope of that article.

Article 65

• Article 65 deals with recovery based on title.
• Under Article 65 previous possession of plaintiff (within twelve years) need not be proved. It is immaterial. (Ramiah v. N. Narayan a Reddy, (2004) 7 SCC 541 : AIR 2004 SC 4261; Jagannath Garnaik v. Sankar Samal, AIR 1990 Ori 124; State of Orissa v Jhtnjhuntallo, 1986 CLT 55.)  
• Under Article 65, if plaintiff could prove his title, it would fail only if the defendant proves adverse possession over twelve years. (Bhushan Lal v. Suresh Kumar, AIR 1987 All 25,  Manikyala Rao v. Narasimhaswrami, AIR 1996 SC 470.)
• Under Article 65, if plaintiff could not prove his title, he will fail (and in such a case, whether the defendant proves title or adverse possession is immaterial). (Ranjit Kumar Bhowmik v.  Subodh Kumar Roy, (2004) I WBLR 228: (2004) 2 CHN 180)
• Under Article 65, if only title of plaintiff is proved, then only adverse possession of defendant becomes a material point.

Burden of Proof – Complete change by Articles 64 and 65

In the recent decision, Government of Kerala v. Joseph, AIR 2023  SC 3988, our Apex Court observed that burden of proof rests on the person claiming adverse possession. The Court followed P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, which observed as under:

• “34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”

Changes after Recommendations of 3rd Law Commission Report

The Changes were made after the recommendations of the 3rd Law Commission. The Report reads as under:

• “lf the defendant want to defeat the right of the plaintiff he must establish the adverse possession for over twelve years which has the effect of extinguishing the title of the owner by operation of Section 28 of the Limitation Act (Section 27 of the 1963 Act), read with Art. 144. (Article 65 of the 1963 Act). If he fails to do so, there is no reason for non-suiting the plaintiff merely because he was not able to prove possession within twelve years….. In our opinion, Art. 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seek protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff’s prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owner’s entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by  adverse possession, the law must undoubtedly step in and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under article 142 is that the true owner must prove that he has a subsisting title on the date of the suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession. Article 142, may, therefore, be amended as follows:
• “For possession of immovable property based on possessory title when the plaintiff while in possession of the property has been dispossessed – l2 years from the date of dispossession. “ (Quoted in the 22nd Law Commission Report)

Adverse possession – Declaration: Art. 65 & Not Art. 58 of Limit. Act Governs

See Blog: Declaration and Injunction

Adverse possession is commenced in wrong and is aimed against right

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

The Supreme Court, in T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, held as under:

• “The concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that 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 claimed. 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 in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property.

‘Starting Point’ of “Adverse” Possession

In S.M. Karim v. Mst. Bibi Sakina Bibi Sakina, (1964) 6 SCR 780, a case (Civil Appeal No. 647 of 1962) before the implementation of Amended Limitation Act of 1963, it was found as under:

• “Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for “several 12 years” or that the plaintiff had acquired “an absolute title” was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in that case.” 

In P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 etc., when dealt with the 1963 Act, it was pointed out –

• (i) Animus possidendi is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner.
• (ii) The date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed – must be established.

It not sure who the true owner is, there will be no Adverse Possession

Adverse possession is hostile possession which is expressly or impliedly in denial of title of the true owner. To attract adverse possession there must be animus possidendi to hold the land adverse to the title of the true owner (Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316; M. Venkatesh v. BDA, 2015-17 SCC 1; Brijesh Kumar v. Shardabai, 2019-9 SCC 369) with the knowledge of the true owner. If the defendants are not sure who the true owner is, there will be no question of possessing the property hostile to the true owner.

In T. Anjanappa v. Somalingappa, 2006-7 SCC 570, it is held as under:.

• …The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not raise…… Therefore, the defendants are in possession and enjoyment of the property knowing fully well that the property belonged to the plaintiff’s father and the plaintiff’s vendor also did not take any action to evict them and the plaintiff and his vendor were aware that the properties belonged to them and despite the same, the plaintiff’s vendor did not take any action to evict them. Hence, the appellants/defendants have also perfected title by adverse possession. Therefore, the 2nd substantial question of law of is answered in favour of the appellants/defendants.” (Followed in: Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46.)

Claimant must have accepted title of the true owner

It is a basic factor in adverse possession- the claimant thereof must have accepted the title of the true owner.

In In Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma Alias Nacharamma, (2008) 15 SCC 150, it was pointed out – if according to the defendant, the plaintiff was not the true owner, his possession would not have been sufficient to term it ‘hostile’ to the plaintiff’s title; and that the defendant had to show, to attract adverse possession, that his possession was also hostile to the title and possession of the true owner.

In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, it was pointed out by the Apex Court :

• The question of adverse possession without admitting the title of the real owner is not tenable.

In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461, our Apex Court allowed the appeal, negating the claim of adverse possession raised by the defendant, inter alia, for not accepting the title of the plaintiff (true owner), by the defendant. It was observed  as under:

• “16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff.”

Possession is heritable and transferable

Possession is a heritable and transferable right. [See: Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186]. A settled possession can be protected by court-injunction.

Injunction is a Possessory Remedy.

Courts protect settled possession (Rame Gowda v. M. Varadappa Naidu, 2004 1 SCC 769). Injunction is a possessory remedy. (See: Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402. Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.): AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533. Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145. )

But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.

The legal principles, ‘Possession Follows Title’ and ‘Title Follows Possession’, are Rules of Evidence. They are applied in cases where there are no sufficient and independent evidence to prove possession or title, as the case may be.

Under S. 110 Evidence Act, ownership is presumed on the proof of possession. It ‘follows from well settled principle of law that normally, unless contrary is established, title always follows possession’ (Chuharmal v.  Commissioner of Income Tax, M P, AIR  1988 SC 1384; 1988 3 SCC 588).

S. 114 Evidence Act, expressly permits the court to ‘presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case’. Therefore, by virtue of Sec. 114,

• (i) possession can be presumed on the basis of title (possession follows title), and
• (ii) title/ownership can be presumed on the basis of possession (title follows possession).

Settled Possession

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.”

‘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. In this decision it was also 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 acquires an absolute title.

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’.

Sec. 6 of the Specific Relief Act reads as under:

• 6. Suit by person dispossessed of immovable property.
• (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
• (2) No suit under this section shall be brought
  • (a) after the expiry of six months from the date of dispossession; or
  • (b) against the Government.
• (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
• (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

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.”

Person in possession can use Reasonable Force to keep out a Trespasser

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:­ 

• “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.”

Possession is a Good Title of right Against any one who cannot Show a Better

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 x In 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.”

Two views on Declaration & Recovery

Can be used as a Shield alone (earlier view):

• Declaration cannot be sought for with respect to Adverse Possession was the view taken by certain Jurists and Courts. See:  Gurudwara Sahib v. Grama Panchayath [(2014) 1 SCC 669]. This view is followed in Mohini v. Thimmappa [2015(4) KLT 759].  It is held: Extinguishment of the right of real owner is depended on the ‘establishment’ of adv. possession; and the ‘establishment’ of adv. possession comes only when a title suit comes. Therefore, plea of adverse possession is only a shield; and not sword.

Can be used as a Sword (present  view) 

So held in Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729. [See also: Sarangadeva Periyamadon v. Ramaswamy (AIR 1966 SC 1603) 3-Judge-Bench; and Amrendra Pratap Singh v. Tej Behadur: AIR 2004 SC 3782]

The earlier view in  Gurudwara Sahib v. Grama Panchayath [(2014) 1 SCC 669] that declaration cannot be sought for with respect to Adverse possession is overruled by Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729 (Arun Misra, J). The Three Judge Bench held in Ravinder Kaur Grewal that once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner.

In paragraph 62 of Ravinder Kaur Grewal v. Manjit Kaur  AIR 2019 SC 3827: (2019) 8 SCC 729 (Arun Misra, J) , following has been observed: 

• “62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that 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.”

It is pointed out that S. 27 Limitation Act is an exception to the general rule – limitation bars remedy, not title.

Appreciation of Evidence in Adverse Possession Case

Somnath Barman v. Dr. S. P. Raju AIR 1970 SC 846, 1969-3 SCC 129 (KS Hegde & JC Shah, JJ.), can be safely considered to see how evidence on adverse possession is appreciated by the Supreme Court of India. In this case the plaintiff claimed title on a document. The defendants pleaded adverse possession. According to them the second defendant had sold the property to the 1st defendant 3 years before the suit. Therefore, to establish the claim of title by adverse possession (for the period of 12 years), the fact that the second defendant was in possession of the suit property for a period of over nine years before he sold the same to the first defendant should have been proved. The Supreme Court found that the defendants failed to establish adverse possession observing the following:

• “Though the second defendant filed a -written statement supporting the case of the 1st defendant and though he was present at the time of hearing several occasions, he was not examined as a witness in this case to support the plea of adverse possession put forward by the defendants. No explanation is forthcoming for his non-examination. This circumstance goes a long way to discredit the defendant’s plea of adverse possession. The 1st defendant’s evidence as regards adverse possession is of very little significance as his knowledge of the suit property prior to the date he purchased the same is very little. The only other evidence relied on in support of the plea of adverse possession is that of D.W.2, Shambhu Prashad who claims to have taken the suit property on lease from the second defendant. The lease deed said to have been executed by him is marked as Exh.D/ 1. It is not explained how the 1st defendant came into possession of Exh.D/l. Though the suit was filed as far back as 1949, Exh.D/1 was produced into court for the first time in the year 1960. No explanation has been given for this inordinate delay in producing Exh.D/1, (an unregistered document) in court. According to D.W.2, the 1st defendant knew about this document as far back as 1950. Under these circumstances, the High Court was fully justified in rejecting the testimony of D.W.2 and not relying on Exh.D/l.”

Sec. 27,  Limitation Act  –  Extinguishment of right to property

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.

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. 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.

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

No doubt, it is true, one can acquire easement and adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until the 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, proprietary or otherwise, has to be shown for obtaining relief (Krishna Pillai v. Kunju Pillai 1990 (1) KLT 136, referred to).

Possession cannot be Adverse to one who has No Immediate Right to Possession

In U. N. Mitra’s Tagore Law Lectures on Limitation and Prescription (3rd Edition, page 161), it is observed that the principle that possession cannot be adverse to one who has no immediate right to possession and since a landlord does not have any such right in respect of the tenanted property during the subsistence of the tenancy, he does not acquire any right of action against the trespasser encroaching upon the tenanted property. (It is referred to in Biswanath v. Prafulla Kumar Khan, 1988 AIR Cal 275).

Claim of Adverse Possession by Tenant

In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, the claim of adverse possession by the tenant was negatived by the Apex Court on the following grounds:

• The respondent-tenant had admitted the ownership of the landlord in earlier proceedings.
• Such plea operates as estoppel. The subsequent claim of adverse possession of the tenant as owner is not sustainable.
• The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner.
• He has also not surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. (In terms of Sec. 108(q) of the TP Act possession of tenant remains permissive till it has been actually restored to the landlord.)

Title Declaration – Plaintiff to succeed on the strength of his own Title

It is trite law that in a declaratory suit the plaintiff has to win the case on his own pleading and proof, and he cannot hide shelter on the weakness of the opposite side. This proposition equally applies to a case where one seeks declaration on adverse possession.

In Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82, our Apex Court explained the well accepted principle that in a suit for declaration of title and possession, ‘the plaintiffs will succeed on the strength of their own title irrespective of whether defendants proved their case or not’ in the following words:

• “44. In the suit for declaration for title and possession, the Plaintiffs-Respondents could succeed only on the strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.
• 45. Observing that in a suit for declaration of title, the Plaintiffs- Respondents are to succeed only on the strength of their own title irrespective of whether the Defendants-Appellants have proved their case or not, in Union of India v. Vasavi Coop. Housing Society Limited, (2014) 2 SCC 269, it was held as under SCC p.275, para 15) “15. It is trite law that, in a suit for declaration of title, the burden always lies on the Plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the Defendants would not be a ground to grant relief to the Plaintiff.”” (referred to in A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821.)

‘Ouster’ of Co-owners

What is ouster?

It is considered in Vidya Devi @ Vidya Vati v. Prem Prakash, AIR 1995 SC 1789, 1995-4 SCC 496. It is held as under:

• ” ‘Ouster’ does not mean actual driving out of the co- sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are –
  • (i) declaration of hostile animus
  • (ii) long and uninterrupted possession of the person pleading ouster and
  • (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner.
• Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

Plea and proof of ouster is necessary when one plead adverse possession against a co-owner. Express, positive and specific overt acts ousting co-owner from possession are necessary; mere hostile acts of the adverse possession are not enough (See: Velliyottummel Sooppi v. Nadukandy Moossa, AIR 1969 Ker 222).

Privy Council in Coera v. Appuhamy,AIR 1914 PC 243 held as under:

• “Entering into possession and having a lawful title to enter, he could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. in Thomas Vs. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title’….. His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result.” (Quoted in: Vidya Devi @ Vidya Vati v. Prem Prakash, AIR 1995 SC 1789, 1995-4 SCC   496).

‘Dispossession’ implies ouster itself.

From the above decisions it is clear that ‘dispossession’ implies ouster itself. However, the quality of evidence expected as to ‘dispossession’ in cases of adverse possession against a co-owner or in case of a permissive-possession is ‘higher’; and this ‘dispossession’ is termed as ouster.

Read Blog: Ouster and Dispossession in Adverse Possession

Adverse Possession Against Government – Govt. of Kerala v. Joseph

In Govt. of Kerala v. Joseph, AIR 2023  SC 3988, our Apex Court has emphasised (August 9, 2023), that the Courts have to consider the question of adverse possession “more seriously” when it is claimed on a land that belongs to the Government.

In this case, the judgment of the first appellate court which ‘observed that the title of the Government on land cannot be lost by placing reliance on “casual advertence” or on the basis of “scanty material” ’ was restored by the Apex Court. The Apex Court held –

• “When the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”

The Apex Court also alluded to the following often repeated the basic ingredients to attract the adverse possession, with reference to various previous earlier decisions including the Privy Council –

• i. the possession must be open, clear, continuous and hostile to the claim or possession of the other party;
• ii. all three classic requirements must coexist – 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 knowledge.

The decisions referred in this case (Govt. of Kerala v. Joseph) include the following –

• 1.  Privy Council in Radhamoni Debi v. Collector of Khulna, ILR 27 Cal. 944; (1900) 27 Ind App 136 (PC); 1900 SCC OnLine PC 4 – The possession required must be adequate in continuity, in publicity, and in extent.
• 2.  Privy Council in Perry v. Clissold, [1907] A.C. 73 – peaceably possessed land; rightful owner did not come forward and assert his title within the period of Limitation.
• 3. Privy Council in Secy. of State for India in Council v. Debendra Lal Khan, (1933) 61 IA 78 : 1934 All LJ 153 (PC) – the possession must be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice.
• 4. Privy Council in Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore, AIR 1935 PC 36 – possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.
• 5. P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, adverse possession should be nec vi, nec clam, nec precario — that is the possession must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It must be with the required animus also.
• 6. Gaya Prasad Dikshit v. Dr. Nirmal Chander (1984) 2 SCC 286 – on termination of licence there must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. (also Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591; Mallikarjunaiah v. Nanjaiah (2019) 15 SCC 756).
• 7 .Parsinni v. Sukhi (1993) 4 SCC 375 – possession must be ‘nec vi, nec clam, nec 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.
• 8. Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 – possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must 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.
• 9. Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 : AIR 1995 SC 895 – “15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”
• 10. Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639  – “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 or 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., up to 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.”
• 11. State of Rajasthan v. Harphool Singh  (2000) 5 SCC 652 –  “12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none.”  “When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession.”
• 12.  Balkrishna v. Satyaprakash (2001) 2 SCC 498  – Mere passing of an order of ejectment neither causes his dispossession nor discontinuation of his possession.
• 13. V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551 – “…A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal…” 
• 14.  Karnataka Board of Wakf v. Govt. of India,  (2004) 10 SCC 779  – there must be exclusive possession and the animus possidendi;  possession must be  “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. It 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 dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (This case was relied on in M. Venkatesh v. Bangalore Development Authority (2015) 17 SCC 1 ;  Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729 .
• 15.  Annakili v. A. Vedanayagam  (2007) 14 SCC 308 – Possessor must have animus possidendi at the commencement of the possession and hold the land adverse to the title of the true owner and  continued for 12 years. Mere possession would not ripen into possessory title.
• 16. P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59   – initially the burden lied on the landowner to prove his title; thereafter it shifts on the other party to prove title by adverse possession.
• 17. Des Raj and Others v. Bhagat Ram (2007) 9 SCC 641 (two- Judge Bench) this Court observed – possession must be in hostile declaration of his title vis-à-vis his co-owners and they were in know thereof.
• 18.  L.N. Aswathama v. P. Prakash  (2009) 13 SCC 229 – permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
• 19.  Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 – Animus possidendi is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner. The date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed – must be established. (Referred to in: Brijesh Kumar v. Shardabai, (2019) 9 SCC 369).
• 20. Mandal Revenue Officer v. Goundla Venkaiah  (2010) 2 SCC 461 – “…It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.”
• 21. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 – The State cannot claim the land of its citizens by way of adverse possession.
• 22.  Janata Dal Party v. Indian National Congress, (2014) 16 SCC 731 – “…the entire burden of proving that the possession is adverse to that of the plaintiffs, is on the defendant…”
• 23.  State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj  (2017) 9 SCC 579 – “…The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief…” (Relied on in Dharampal (Dead) v. Punjab Wakf Board, (2018) 11 SCC 449)
• 24.  M Siddiq (D) through LRs v. Mahant Suresh Das   (2020) 1 SCC 1 – possession must be peaceful, open and continuous; it must meet the requirement of being ‘nec vi nec claim and nec precario’. possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. There must be adequate pleadings and sufficient evidence.
• 25. Narasamma v. A. Krishnappa, (2020) 15 SCC 21 (three-Judge Bench) – plea of adverse possession can be used not only as a shield by the defendant, but it can be used as a sword by the plaintiff. (Followed Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729).

Adverse Possession Against Government

• There is presumption available in favour of the government – that is, all lands which are not the property of any person or which are not vested in a local authority, belong to the government.
• All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land.

In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was observed that that the Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government.

The Apex Court held as under:

• “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
• The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual.
• The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government.
• Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
• 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years.
• In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.
• A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government :
  • whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or
  • whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.
  • Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and
  • what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
• 17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.
• To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored.
• As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.” (Quoted in: Bhagi Ram v. State of H P (2023 April 10), Nathu Ram v. D D A (2022 February 1.)

No Equities in favour of a Person Pleading Adverse Possession

In Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316, it is observed as under:

• “A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.”

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Notes (Questions arose in various classes and answers given by the author):

(i) Plea of title and adverse possession – whether mutually inconsistent?

Yes.

Therefore, one does not begin until the other is renounced. It is observed in Karnataka Board of Wakf Vs. Govt of India (2004) 10 SCC 779 as under:

• “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” Quoted in Munichikkanna Reddi v. Revamma: AIR 2007 SC 1753.

(Note: Mutually destructive plea is impermissible: (2006) 12  SCC 233, AIR 2009 SC 2355).

In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543: AIR 1995 SC 895  (two-Judge Bench) our Apex Court held as under:

• “15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.” (Quoted in: Government Of Kerala VS Joseph, AIR 2023 SC 3988)

In Government Of Kerala VS Joseph, AIR 2023 SC 3988, it is held as under:  

• “21.9 Claim of independent title and adverse possession at the same time amount to contradictory pleas.”

(ii) Is Adverse Possession: Illogical, disproportionate and draconian law as viewed in some decisions referred to in Munichikkanna Reddi v. Revamma : AIR 2007 SC 1753.

It appears that the argument in favour of adverse possession are, mainly, the following:

1. It is on a public policy.
2. This law exists all-around the world.
3. In Indian situations (landless poor are large in number; and Government records cannot be relied on – on account of various matters), this law is essential.

The argument against adverse possession are, mainly, the following:

1. European Court of Human Rights has taken an unkind view to the concept of adverse possession. Para 19,  Munichikkanna Reddi v. Revamma : AIR 2007 SC 1753.
2. Now-a-days Government records are reliable enough; we need not nurse illogical and draconian law.
3. Several Nations, relying on Governmental records, do not go after law of adverse possession.
4. A large number of people go abroad for employment or for other purpose. Thy should not be punished.

(iii) What is the present position in India on Adverse Possession – Is it Not a bad law: Hemaji Waghaji : (2009) 16 SCC 51: AIR 2009 SC 103 held that there is no equities – high time to abolish or at least change the law. But, the subsequent authoritative decisions including Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827 (three judge bench) affirmed the punch of adverse possession.

22^nd Law Commission Report: But, the 22^nd Law Commission did not pursue the observations in Hemaji Waghaji; on the contrary, upholding the law on adverse possession, it emphasised that the present law ensures that ‘there is always an owner or claimant to the contentious land, and that it is precisely the reason why the law validates the claim of adverse possession made by the squatter’.  

Read Blog: 22nd Law Commission  Report on ‘Law on Adverse Possession’

(iv) Can Government assert adverse possession?

No. See: State v. Mukesh Kumar: (2011) 10 SCC 404.

(v) What is the limitation period for acquiring adverse possession against Government?

30 years. See Article 112 of the Limitation Act.

(vi) Is declaration necessary for claiming Adverse Possession?

Yes. Declaration is needed in the following circumstances:

1. As Introductory/preliminary to grant (1) Injunction or (2) Recovery (Unnikrishnan v. Ponnu Ammal: AIR 1999 Ker 405
2. When serious denial or cloud on title (or right): Anathula Sudahakar v. Buchi Reddi: AIR 2008 SC 2033
3. Asserted title or civil right is not clear, simple and straight-forward; or, not well-established (lawful possession). (Eg. inchoate rights – started; but, not full-blown, until the such title is upheld by a competent court; like title on adverse possession.)
4. Complicated or complex questions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033)
5. Insurmountable obstacle – Md. Noorul Hoda v. Bibi Raifunnisa : (1996) 7 SCC 767
6. Make clear what is doubtful – as to legal character and title. ILR 1970-2 (Del) 433: Eg. Suit by trespasser claiming adverse possession: Darshan Kumari v. Kaushalya Devi: 1990 JKLR 208; 1991 Kash LJ 1 (R.P. Sethi, J) for dispelling cloud: AIR 1953 (Gau) 162.

(vii) Can a defendant plead Adverse Possession as a shield (without a counter claim)?

Yes. See the quoted portion, above, from Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827.

(viii) Should the person who claims adverse possession necessarily know the true owner?

There is difference of opinion.

It can be said – “The person who claims adverse possession must necessarily know the true owner, (for) then only it becomes ‘adverse’ as stated in Art. 65 of the Limitation Act.

In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543: AIR 1995 SC 895  (two-Judge Bench) our Apex Court held as under:

• “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.”

But, in the Report of the 22^nd Law Commission it is stated as under:

• “7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).”

The Consultation Paper-cum-Questionnaire prepared by the 19^th Law Commission is attached to the Report of the 22^nd Law Commission, as “Annexure – 1”. Para 2.6 of the same reads as under:

• “2.6 It was clarified by a three-Judge Bench of the Supreme Court in Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707,  
  • “All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded, but that is not the case here. “
• “It was also clarified in a series of decisions that while possession shall be open and exclusive and in assertion of one’s own right, the fact that the possessor did not know who the real owner was, will not make his possession any the less adverse. There are certain passing observations in some judgments of the Supreme Court rendered by two learned Judges that the plea of adverse possession is not available if the adverse possessor does not know who the true owner is; but, the law declared by the larger Bench decisions of the Supreme Court obviously prevails.“

It appears that the Law Commission inappropriately relied on the Three Judge Bench decision. On a careful reading of this decision, Kshithish Chandra Bose, it can be seen that this decision arose from a matter that emerged prior to 1963 Limitation Act, and when the 1908 Limitation Act reigned the field.

Under the 1908 Act, the true owner was bound to file suit for recovery within 12 years of losing possession. Therefore, it was immaterial – whether the trespasser ‘acquired’ right of ‘adverse‘ possession against the true owner; knowing him and bringing his attention to the ‘trespass’, or not (as required in 1963 Act). (See also Notes above, under Heading – Art. 65 of Limtn. Act, 1963 Made Major Changes in Law of Adverse Possession)

While narrating the facts, it is observed in Kshithish Chandra Bose, as under:

• “In the suit the plaintiff based his claim in respect of plot No. 1735, Ward No. I of Ranchi Municipality on the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912 which is Exhibit 18. Apart from the question of title, the plaintiff further pleaded that even if the land belonged to the defendant municipality, he had acquired title by prescription by being in possession of the land to the knowledge of the municipality for more than 30 years, that is to say, from 1912 to 1957.“

From the above, it comes out that the person who claims adverse possession must necessarily know the true owner; and that Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, cannot be used to support  the plea that adverse possession is available even if the adverse possessor does not know who the true owner is.

(ix) Did the the Kerala High Court went wrong in K.T. Kurungottukandi Rarichakutty v. Aranda Rarichan, 2018-5 KHC 599

Yes. Kerala High Court went wrong.

Kerala High Court also (see Notes just above) inappropriately relied on the Three Judge Bench decision of the Supreme Court which held in Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, that the person who claims adverse possession adverse possession need not know the true owner.

(x) Once, right was perfected by 12 years’ user. Thereafter obstruction for a few years. Can a suit be filed on the basis of (earlier) perfected by 12 years’ user?

Yes.

See: RAVINDER KAUR GREWAL Vs. MANJIT KAUR: AIR 2019 SC 3827: “Once right is extinguished another person acquires prescriptive right which cannot be defeated by re­entry by the owner”.

Also note: Stipulation in Para 5 of Section 15 of the Indian Easements Act is not applicable to Adverse possession. Para 5 of Section 15 reads:

“Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.”

Will Abandonment Create a Right

See Blog: Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?

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