Adverse Possession: How to Plead? Why Strict Pleadings Insisted?

Saji Koduvath, Advocate, Kottayam. 

Abstract

Important modern propositions as to adverse possession (in India) can be summarised as under:

  • 1. Party claims Adverse Possession must KNOW the Actual Owner. 
  • 2. To Attract ‘Adverse-Possession’, Possession for Mere 12 Years Insufficient.
  • 3. Onus on the trespasser to prove ‘adverse’ possession.
  • 4. Mere possession Howsoever Long – will not result in adverse possession.
  • 5. Permissive Possession Cannot Be Basis For Adverse Possession.
  • 6. What is in the mind of the claimant is decisive.
  • 7. Mere Animus Possidendi, Not Sufficient; There must be Intention to Dispossess.
  • 8. Owner “did not take care to know notorious facts”  and hostile colour of title, required.
  • 9. If it is not sure who the true owner is, there will be no Adverse Possession.
  • 10. Claim of Adv. Possn. – There will be Implied admission of title of other Party.
  • 11. No Adverse Possession if Title of True Owner is Not Accepted.
  • 12. No Alternate plea on Adverse Possession be Sustained.
  • 13. No requisite animus, if one takes divergent claims.
  • 13. Title and adverse possession are mutually inconsistent; the latter does not begin to operate until the former is renounced

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: 2007-6 SCC 59, 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 impute knowledge to the true owner that the possession was adverse to his title from its inception.

Note:

  • For perfecting adverse possession, the statutory requirement of ’12 years’ starts only – “when the possession of the defendant becomes adverse to the plaintiff” (Limitation Act, 1963: Article 65).
Read Book No. 5
•  Adverse Possession: A Concise Overview
•  What is Adverse Possession in Indian Law?
•   Adverse Possession: Dispossession and Knowledge
•   Adverse Possession: Admission of Title of Other Party
•   Ouster and Dispossession in Adverse Possession
•   Does ‘Abandonment’ a Recognised Right in Indian Law?
•   Fraudulent Registration of Deed: No Adverse Possession
•   Does 12 Years’ Unobstructed Possession Precede the Suit?
•   Prescriptive Rights – Is it Inchoate until Upheld by Court
•   Sec. 27, Limitation Act: Right to Declaration and Recovery
•  Declaration & Recovery: Art. 65, not Art. 58 Governs
•  ‘Possessory Title’ in Indian Law
•   Possession: a Substantive Right Protected in Indian Law
•   Recovery Based on Title and on Earlier Possession
•   ‘Possession is Good Against All But the True Owner’
•   When ‘Possession Follows Title’; ‘Title Follows Possession’
•   Can a Tenant Claim Adverse Possession
•   Adverse Possession Against Government
•   Is Registration of a Deed, Notice to Govt. and Public?
•   Government of Kerala v. Joseph
•   Adverse Possession: UK and US Law and Classic Decisions
•   22nd Law Commission  Report
•  How to Plead Adverse Possession? 

Strict pleading Required; No Equities in favour of a Person Pleading Adverse Possession

Claim of adverse possession is one to defeat the rights of the true owner.  Therefore, there is no equity in his favour. It must be properly pleaded and proved. In M. Radheshyamlal v. V. Sandhya (Abhay S. Oka & Ujjal Bhuyan, JJ.), AIR 2024 SC 1595, as under:

  • “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.”

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.”

Read also:

Party claims Adverse Possession must know the Actual Owner

In M. Radheshyamlal v. V. Sandhya (Abhay S. Oka & Ujjal Bhuyan, JJ.), AIR 2024 SC 1595, 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….”

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

  • … 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…” (Followed in: Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46.)

KNOWLEDGE of True Owner sine qua non of ADVERSE POSSESSION

1. For a possession to be “ADVERSE”, it must be one obviously arose by Dispossessing true owner, admitting his Title (Knowing him).

It is trite law – after 1963 Limitation Act, under Article 65 – the defendants should have founded its case on “adverse” possession with the pleading –

  • Started with wrongful dispossession,
    • – obviously – knowing True Owner.
  • hostile or notorious enough
    • with a view to make True Owner aware
  • spec ifying date of starting
    • – obviously – knowing True Owner
  • admitting ‘real/true’ owner as ‘rightful’ owner,  
    • – obviously – knowing True Owner
  • with some overt act (Gaya Prasad Dikshit v. Dr. Nirmal Chandar, 1984(2) SCC 286; Government of Kerala v. Joseph –AIR 2023 SC 3988).
    • – obviously – knowing True Owner”

See:

  • RadhesiamLal v. Sandhya – AIR 2024 SC 1595
  • Government of Kerala v. Joseph – AIR 2023 SC 3988
  • Ram NaginaRai v. DeoKumarRai – 2019-13 SCC 324.
  • Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096;
  • T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and
  • PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753;
  • Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393
  • Gaya Prasad Dikshit v. Dr. NirmalChandar 1984(2) SCC 286, P.N. Bhagwati, D.P. Madon
  • T. Lakshmi Reddi v. L. Lakshmi Reddi 1957 SCR 195).

2. If permissive holder, no adverse possession. See:

  • State of Haryana v. AminLal – 19 Nov. 2024 SC, 2024-4 CurCC(SC) 222
  • NeelamGupta v. Rajendrakumar – (2024) 2 SCR 326; 2024 INSC 769
  • Ram Nagina Rai v. Deo Kumar Rai – 2019-13 SCC 324
  • Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591
  • L.N. Aswathama v. P. Prakash  (2009) 13 SCC 229
  • R. Hanumaiah v. Secretary to Government of Karnataka, (2010) 5 SCC 203.

3. Permissive holder is Estopped from raising claim of Adverse Possession

  • Nand Ram v.Jagdish Prasad, (2020) 9 SCC 393.

4. Mere possession, however long,  insufficient.  It must be adverse.  There is drastic change after 1963 Limitation Act.

  • Govt. of Kerala v. Joseph – AIR 2023 SC 3988
  • T. Anjanappa v. Somalingappa – 2006(7) SCC 570.
  • Gaya Prasad Dikshit v. Dr. Nirmal Chandar 1984(2) SCC 286.
  • Karnataka Board of Wakf v. Govt. of India – (2004) 10 SCC 779.
  • Mallavva v. Kalsammanavara, 2024 INSC 1021.

A tenant having taken possession of the property cannot plead adverse possession. Nand Ram v. Jagdish Prasad, 2020-9 SCC 393

The “Knowledge” required is ‘that which is Brought to the True Owner‘

The words in Article 65 — ‘when the possession of defendant becomes adverse to the plaintiff‘— necessarily imply or contemplate a “knowledge” on the part of the plaintiff. It is the ‘knowledge‘ that is –

  • acquired by the true owner, brought about by the claimant’s open and hostile acts asserting title.
T. Anjanappa v. Somalingappa, (2006) 7 SCC 570,
Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517
Annakili v. A. Vedanayagam, AIR 2008SC 346; 2007 14 SCC 308,
Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316,
Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729.

If 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.)

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

In a suit for recovery on title, previous possession of plaintiff (within 12 years or so) need not be proved by the plaintiff.

Under Article 65 of the 1963 Limitation Act, previous possession of plaintiff (within 12 years or so) need not be proved by the plaintiff.  Possession of plaintiff whatever period back is immaterial. (Jagannath Garnaik v. Sankar Samal, AIR 1990 Ori 124; State of Orissa v Jhtnjhuntallo, 1986 CLT 55).  Period of possession (or its lose) of 12 years has significance only if the defendant pleads “adverse” possession.

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

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);
  • Mallavva v. Kalsammanavara, 2024 INSC 1021,
  • 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.)

Important Modern Propositions as to Adverse Possession (in India)

No Requisite “Animus”, If the Claimant Raises Divergent Claims

Requisite animus is very important in the claim of adverse possession. If one takes divergent claims, such as title and adverse possession, it is beyond doubt that he has no ‘required animus’.

In Saroop Singh v. Banto, (2005) 8 SCC 330, it is held as under:

  • “30. ‘Animus possidendi’ is one of the ingredients of adverse possession. Unless the person possessing the land has the requisite animus the period for prescription does not commence. As in the instant case, the Appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. (See Mohd. Mohd. Ali v. Jagadish Kalita, (2004) 1 SCC 271, SCC para 21.)”

Uttam Chand v. Nathu Ram, AIR 2020 SC 461

Surveying the earlier decisions on adverse possession, it is held in Shri Uttam Chand v. Nathu Ram, AIR 2020 SC 461; 2020-11 SCC 263 –

  • If the defendants are not sure who the true owner is, the question of their being in hostile possession and the question of denying title of the true owner do not raise
  • Adverse possession must have commenced in wrong and is aimed against right.

In Shri Uttam Chand v. Nathu Ram, AIR 2020 SC 461; 2020-11 SCC 263, the Supreme Court referred to the following earlier decisions.

  • 1. T. Anjanappa v. Somalingappa, (2006) 7 SCC 570 (Commenced in wrong and is aimed against right; Possession is not adverse if referred to a lawful title.).
  • 2. Kurella Naga Druva Vudaya v. Galla Jani Kamma, (2008) 15 SCC 150 (Payment of tax on behalf of someone else and mere possession, insufficient. Required: hostile possession, denying the title of the true owner. Possession of the defendant, holding that the plaintiff was not the true owner, is insufficient.)
  • 3. Brijesh Kumar v. Shardabai, (2019) 9 SCC 369 (assertion of a hostile title in denial of the title of the true owner, demonstrating a wrongful ouster of the rightful owner with continuous open and undisturbed possession over 12 years .
  • 4. Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316, (Mere possession does not ripen into possessory title, required to establish 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. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner; it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take an unkind view towards statutes of limitation overriding property rights.)
  • 5. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729. (Possession must be visible, notorious and peaceful, to the knowledge of the owner (if due diligence he would have known it). Cannot be decreed if not pleaded. Trespasser’s long possession is not synonymous with adverse possession. The owner can take possession of a trespasser at any point in time. Trespasser’s possession is construed to be on behalf of the owner.
  • 6. M. Siddiq (D) v. Mahant Suresh Das, 2020-1 SCC 1 (Ram Janmabhumi Temple case). (Claim of adverse possession would amount to an acceptance of a title in another. The possession has to be to the knowledge of the true owner. A plea of adverse possession seeks to defeat the rights of the true owner, and a clear and cogent basis must be made out in the pleadings and established in the evidence.
  • In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779, it is held – A person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed..

Mere Animus Possidendi, Not Sufficient; It must be with a Positive Intent to Dispossess True Owner

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

The pivotal point that constitutes adverse possession is –

  • the positive and hostile acts of the trespasser, and not the inaction or acquiescence of the true landowner.

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. In PT Munichikkanna Reddi v. Revamma: AIR 2007 SC 1753, it is pointed out as under:

  • “Specific Positive intention to dispossess on the part of the adverse possessor.”
  • “Intention to possess can not be substituted for intention to dispossess, which is essential to prove adverse possession.”

Adv. Possession on termination of his Licence – Must have 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.”

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:

  • “12. 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.” (Quoted in: Uttam Chand v. Nathu Ram, 2020-11 SCC 263)

‘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.

No adverse possession without admitting title of real owner

It is a basic factor in adverse possession- the claimant thereof must have accepted the title of the true owner. In The State of Haryana v. Amin Lal (SC), Nov. 19, 2024, 2024-4 CurCC(SC) 222, it is held as under:

  • “By asserting adverse possession, the appellants have impliedly admitted the plaintiffs’ title.”

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 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.”

In Nand Ram v.  Jagdish Prasad, AIR 2020 SC 1884; (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.”

Our Apex Court, in Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, it is held as under:

  • “747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other.”

Permissive Possession Cannot Be the Basis For Adverse Possession

It is definitely held in State of Haryana v. Amin Lal, 19 Nov 2024, (SC), 2024-4 CurCC(SC) 222as under:

  • “Permissive possession cannot be the basis for a claim of adverse possession.”

In Chandramathy C.S. v. Devakey Amma, 2010 (4) KerHC 383it is pointed out – ‘Permissive possession is not at all adverse and limitation does not commence until possession become adverse. The defendants have not stated as to when permissive possession became adverse to the real owner.’ (Referred to in: Abdul Hameed Rawtherv. Basheer, ILR 2024-2 Ker 527; 2024 3 KHC 216; 2024 3 KLT 812.

Permissive Possession will not bring-forth Adverse Possession

When the old Limitation Act of 1908 reigned, our Apex Court, in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, following Debendra Lal Khan case, (1933-34) 61 IA 78 : AIR 1934 PC 23], observed as under :

  • “4. … But it is well-settled that in order to establish adverse possession of one coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. … the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.” (Quoted in: Hemaji Waghaji Jat v. Bhikabhai Khengarbhai Harijan, (2009) 16 SCC 517).

Amimus and Adverse Possession

  • In L.N. Aswathama v. P. Prakash  (2009) 13 SCC 229 it is held – permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
  • In Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591, it is held – 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 the real owner. Mere possession, however long, does not result in converting the permissive possession into adverse possession.

See also:

  • Neelam Gupta v. Rajendra Kumar Gupta, (2024) 2 SCR 326; 2024 INSC 769
  • Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324
  • R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203

‘Ouster’ of Co-owners

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

Claim of Adv. Possn. and Ownership – Both are mutually Inconsistent

One does not begin until the other is renounced.

It is observed in Karnataka Board of Wakf v. 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.(Because, the foundations of both claims are different.)

  • Gautam Sarup v. Leela Jetly, 2008 (7) SCC 85
  • Steel Authority of India Ltd. v. Union of India – AIR 2006 SC 3229, 2006 (12) SCC 233,
  • Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 (Since claim is founded on Section 53-A, plea of adverse possession is not available)
  • Annasaheb Bapusaheb Patil v. Baldwin Babusaheb Patil, AIR 1995 SC 895
  • Firm Srinivas Ram v. Mahabir Prasad, AIR 1951 SC 177.

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.”

Plea of Title and Adverse Possession Mutually Destructive

In Rattan Lal v. Ragunath, 18 Aug 2023, 2023 Supreme (Del) 3938, quoting Government of Kerala v. Joseph, 2023 SCC OnLine SC 961, it is held as under:

  • “11.2. Therefore, the plea of adverse possession raised by the Appellants as a new plea in first appeal is inconsistent with the case setup in the written statement and the trial. In law, the Appellants are precluded from taking the said plea in view of the decision of the Coordinate Bench of this Court in Bharat Bhushan Jain & Anr. v. UOI & Ors., 2014 SCC OnLine Del 3577, wherein this Court has held that the plea of ownership by title and adverse ownership cannot be raised together being inconsistent and mutually destructive. The plea of adverse possession is a question of fact and cannot be raised in appeal only on the basis of prolonged possession of suit property in the absence of the proof of the other ingredients necessary for proving the said defence including the fact that the possession was hostile to the true owner of the property.”

In Rama Kanta Jain v. M.S. Jain, AIR 1999 (Del) 281, it was held as under:

  • “18. There is another aspect of the matter. The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession, In the instant case the defendants have put forward defences which are irreconcilable’ and mutually destructive and inconsistent with one another.’” (Quoted in: Anu Gupta VS Vijay Gupta, 08 Aug 2022, 2022 Supreme(Del) 1198).

‘Mutually Destructive’ Pleas Cannot Co-exist

Easement of Necessity and Prescriptive Right are ‘mutually destructive’. Both cannot be maintained in one suit. The reason is that the origins of both are distinctive and divergent in law.  Easement of necessity continues as long as necessity exists. Its origin is the presumption of law. It will not give rise to a prescriptive right. In other words, Easement of necessity is based on an implied grant – based on some sort of ‘consent, approval or permission’; and Easement by Prescription is acquired by prescriptive or hostile acts.

The Supreme Court in Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006-12 SCC 233, (S.B. Sinha, Dalveer Bhandari) held as under:

  • “To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication.”

In Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske, AIR 2023 SC 3319;  it is pointed ourt as under:

  • “Contextually, it is apposite to state that though in a suit a defendant is entitled to raise alternative inconsistent plea he could not be permitted to raise pleas which are mutually destructive of each other and raising such pleas would only work out to his detriment.”

In Biswanath Agarwalla v. Sabitri Bera, 2009-15 SCC 693 (Deepak Verma, S.B. Sinha JJ.), held as under:

  •  “A defendant as is well known may raise inconsistent pleas so long they are not mutually destructive.”

In Gautam Sarup v. Leela Jetly, 2008-7 SCC 85 (V.S. Sirpurkar, S.B. Sinha, JJ.) it is held as under:

  • “22. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.” (Quoted in: Biswanath Agarwalla v. Sabitri Bera, 2009-15 SCC 693)

Mutually Inconsistent Pleas (Title and Adv. Possn.): One has to be RENOUNCED

Our Apex Court took the view that the plea of title and Adverse Possession are Mutually Inconsistent Pleas (and not taken as “mutually destructive” pleas). See:

  • Gopi @ Goverdhannath v. Ballabh Vyas, AIR 2022  SC 5248,
  • Narasamma v. A. Krishnappa, (2020) 15 SCC 218,
  • Prabhakar Gones Prabhu Navelkar v. Saradchandra Suria Prabhu Navelkar, 2020-20 SCC 465.
  • T. Ravi v. B. Chinna Narasimha, 2017-7 SCC 342,
  • Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693,
  • L. N. Aswathama v. P. Prakash, (2009) 13 SCC 229,
  • P. T. Munichikkanna Reddy v. Revamma, 2007 0 AIR(SC) 1753; 2007 6 SCC 59,
  • Karnataka Board of Wakf v. Government of India, AIR 2004 SC  2096; 2004-10 SCC 779,
  • P. Periasami v. P. Periathambi (1995) 6 SCC 523 (Title and Adv. Possn.) plea of adverse possession – inherent – someone else was the owner of the property),
  • Arundhati Mishra v. Sriram Charitra Pandey, 1994-2 SCC 29,
  • Mohan Lal v. Mirza Abdul Gaffar, 1996- 1 SCC 639.

In L. N. Aswathama v. P. Prakash, (2009) 13 SCC 229, Our Apex Court held that the plea of adverse possession is inconsistent with the plea of title. It is held as under:

  • “16. … According to them, the two pleas being mutually inconsistent, the latter plea could not even begin to operate until the former was renounced. (Quoted in Prabhakar Gones Prabhu Navelkar v. Saradchandra Suria Prabhu Navelkar, 2020-20 SCC 465).

In Karnataka Board of Wakf v. Government of India, AIR 2004 SC  2096; 2004-10 SCC 779it is held 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: Narasamma v. A.Krishnappa ((2020) 15 SCC 218)

In Arundhati Mishra v. Sriram Charitra Pandey, 1994-2 SCC 29, it is held as under:

  • “The question in this case is whether the plea of adverse possession sought to be set up by the respondent could be permitted to be raised. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. It is his own case that he came into possession of the suit house in his own right and remained in possession as an owner. The appellant is only benamidar. Therefore, his plea is based on his own title. He never denounced his title nor admitted the title of the appellant. He never renounced his character as an owner asserting adverse possession openly to the knowledge of the appellant and the appellants acquiescence to it.”

One who (like aTenant) Refers to Lawful Title of Another, Cannot Discard it

In Annasaheb Bapusaheb Patil v. Balwant, 1995-2 SCC 543, it is held that independent title and adverse possession will stand as contradictory pleas. It is 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 v. Joseph, AIR 2023 SC 3988; Bangalore Development Authority v. N.  Jayamma, 2017-13 SCC 159)

Plea of Title or Permissive Possession  And Adverse Possession Are Mutually Contradictory.

Adverse possession can be raised only against the property owned by another person. In Abdul Hameed Rawther v. Basheer, ILR 2024-2 Ker 527; 2024-3 KLT 812, it is held as under:

  • “25. The law is well settled that the plea of adverse possession can be raised only against the property owned by another person against whom he asserts possession adverse to the title of the other (Raghavan v. Devayani [2024 (2) KHC 417] and Shri Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461).”

In Government of Kerala v. 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. The case of Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 elaborated this principle as:
    • “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.”
  • This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (AIR 1996 SC 910, 1996 1 SCC 639 –two Judge Bench) –
    • “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.”
  • The Supreme Court, in Sri Uttam Chand v. Nathu Ram, AIR 2020 SC 461, has reiterated this principle of adverse possession.”

No Alternate plea on Adverse Possession can be Sustained

As shown above, referring Saroop Singh v. Banto, (2005) 8 SCC 330, requisite animus is very important in the claim of adverse possession. If one takes divergent claims, such as title and adverse possession, it is beyond doubt that he has no ‘required animus’.

In Mallavva v. Kalsammanavara Kalamma, 20 Dec 2024, 2024 0 INSC 1021; 2024 KLT (Online) 3051, it is observed as under:

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

In Nand Ram v.  Jagdish Prasad, (2020-9 SCC 393) the defendants case on “alternate plea” of adverse possession was not accepted. The defendants case is placed by the Apex Court as under:

  • “The defendant contended that if the plaintiffs had any right in the land in possession of the defendant, then the defendant had become the owner of the land in question by adverse possession. It was pleaded as under:
    • 10. That the land in possession of defendant does not lie in the alleged khasra no. and is not covered by any alleged lease deed. Without prejudice to this plea in alternative it is submitted that the lease, if any, has already come to an end, about more than 22 years back, and defendant is owner in possession in his own rights.”

In T. Ravi v. B. Chinna Narasimha (Arun Misra, J.), 2017-7 SCC 342, held 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.”

In L. N. Aswathama and another v. P. Prakash, (2009) 13 SCC 229, it is held as under:

  • “17. … The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.
  • (Vide P. Periasami v. P. Periathambi (1995) 6 SCC 523,
  • Md. Mohammad Ali v. Jagadish Kalita (2004) 1 SCC 271 and
  • P.T. Munichikkanna Reddy v. Revamma (2007) 6 SCC 59.”

In Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639, it is observed as under:

  • “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.” (Quoted in: Mallavva v. Kalsammanavara Kalamma, 20 Dec 2024, 2024 0 INSC 1021; 2024 KLT (Online) 3051; Govt. of Kerala v. Joseph, AIR 2023  SC 3988,  M.  Venkatesh v. Commissioner, Bangalore Development Authority, 2015 AIR (SCW) 6933)

Notes

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

Yes. But, The Supreme Court has not taken it as “mutually destructive”

Both can be claimed in one suit; but, must confine to one at trial.

(See Notes Earlier: Adv. Possn. and Ownership – Both cannot be Claimed Together)

(ii) When declaration necessary in suits claiming Adverse Possession?

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.

(iii) Can a defendant plead Adverse Possession as a Shield? Should there be a Counter Claim for Declaration?

Defendant can pleaded adverse possession as a Shield. A Counter Claim for Declaration is not required. It is clear from Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827.

There are three potential divergent views.

  • First, it being governed by the provisions of the Limitation Statute (including Sec. 27, Limitation Act) no declaration is needed.
  • Second, the court has to raise an issue on title on adverse possession (if no declaration of title is sought for, by way of counter claim), and direct the defendant to pay court fees as provided in the Court Fees Act (i.e., as provided for in the Section pertaining to ‘Court fee for Injunction’).
  • Third, Declaration is necessary.

The first view is the most reasonable and cogent one. Because Article 65 itself provides that the plaintiff would fail if the defendant proves adverse possession for over twelve years. Sec. 27 also confers a vested right. It reads as under:

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

It is held in Ravinder Kaur Grewal v. Manjit Kaur,  AIR 2019 SC 3827, as under:

  • “62. ….. 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.”

(iv) 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 22nd 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 19th Law Commission is attached to the Report of the 22nd 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.

(v) 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.

(vi) 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.

  • Article 64 of the Limitation Act applies.
  • 12 Years will be the period of limitation.

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”.

Permissive possession will not be Adverse

1. In Chandramathy C.S. v. Devakey Amma [2010 (4) KHC 383]. The defendants canvassed permissive possession on the basis of an oral agreement of sale. In the above context, the Court held that permissive possession is not at all adverse and limitation does not commence until possession become adverse. The defendants have not stated as to when permissive possession became adverse to the real owner. It was in the above context, the court held that the plea based on title and adverse possession are inconsistent with each other. (Referred to in: Abdul Hameed Rawther, ILR 2024 2 Ker 527; 2024-3 KLT 812)

2. If permissive holder, no adverse possession. (Here, the 1947 deeds show the property in Sy. No. 357 and 368 – lion-share in this case – are Pandaravakapattom; means, permissive possession.) 

  • NeelamGupta v. Rajendrakumar – (2024) 2 SCR 326; 2024 INSC 769
  • Ram Nagina Rai v. Deo Kumar Rai – 2019-13 SCC 324
  • Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591
  • L.N. Aswathama v. P. Prakash  (2009) 13 SCC 229
  • R. Hanumaiah v. Secretary to Government of Karnataka, (2010) 5 SCC 203.

3. Permissive holder is Estopped from raising claim of Adverse Possession

  • Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

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Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

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Book No. 2: A Handbook on Constitutional Issues

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Book No. 3: Common Law of CLUBS and SOCIETIES in India

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