Adverse Possession: An Evolving Concept

Saji Koduvath, Advocate, Kottayam.

Contents in a Nutshell

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

1. Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
- 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.

But, in Nazir Mohamed v. J. Kamala, AIR 2020 SC 4321, our Apex Court held that in the absence of pleading to show that the relief of decree for possession was within the period of limitation, the suit would be dismissed.

Introduction

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.

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’.

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:

Karnataka Board of Wakaf v. Govt of India, AIR 2004 SC 2096
T. Anjanappa v. Somalingappa, (2006) 7 SCC 570]
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729

PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is the latest 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. 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.”

Read Blog: Adverse Possession: An Evolving Concept

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:

acquiescence of the owner to the hostile acts; and
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.

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.“

Article 142 of the (Repealed) Limitation Act, 1908

Article 142 of the (repealed) Limitation Act, 1908, which dealt with the subject, did not put down the term ‘adverse’ in the relevant article concerned with “adverse possession”.

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.

Article 65 of Limitation Act, 1963: 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: The new provision casted onus on the trespasser to prove claims of title by ‘adverse’ possession. Adverse possession arises, under Article 65 of Limitation Act, 1963, only ‘by the positive and hostile acts’ of the trespasser; that is, mere possession is not sufficient, but, it must be ‘adverse’ to the true owner.

Article 65 of Limitation Act reads as under:

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.

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

Our Apex Court 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.
…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.”

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.”

How to Plead Adverse Possession

It is really a troublesome matter for the advocates. 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, 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 disposition of the rightful owner,
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, he made the true owner knew as to his hostile acts or adverse possession (from the inception).

Burden of Proof Sabotaged

Nazir Mohamed v. J. Kamala, AIR 2020 SC 4321

Is it the burden of the defendant, in a suit for recovery, to plead adverse possession? Or, is it the duty of the plaintiff to show that the suit for possession was within the period of limitation prescribed in the Limitation Act (especially where there is a possible claim of Adverse Possession)?

Supreme Court of India considered hitherto that the burden fully rested upon the defendant.

But, in Nazir Mohamed v. J. Kamala, AIR 2020 SC 4321, arose from a suit for recovery of possession, the Apex Court held that the plaintiff had to plead the date on which the defendant took possession and in the absence of pleading to show that the relief of decree for possession was within limitation, the suit would be dismissed; for, Section 3 of the Limitation Act barred the institution of any suit after expiry of the period of limitation prescribed in the said Act, even though the plea of limitation had not been taken in defence. It is pointed out in this decision that the Presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

The dispute in the case as to title is stated in Para 5 and 6 of the judgment, as under:

“5. In the plaint filed in the said suit, it has been alleged that the said premises, which had been purchased by the Respondent Plaintiff’s father, by a registered sale deed dated 17.9.1940, had originally been let out to the Appellant’s father M. Abdul Aziz. After the death of M. Abdul Aziz, the tenancy was attorned in the name of the Appellant, who agreed to pay rent of Rs.25/- per month, and also the requisite Panchayat Tax.
6. Alleging that the Appellant had been trying to set up title in respect of the said premises, by applying for ‘Patta’ to the Tahsildar Natham, and further alleging that the Appellant was in arrears of rent to the tune of Rs.1225/- up to February, 1994, the Respondent Plaintiff filed the aforesaid suit.”

It is held further, as under:

“46. A decree of possession does not automatically follow a decree of declaration of title and ownership over property. It is well settled that, where a Plaintiff wants to establish that the Defendant’s original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.
47. The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent- Plaintiff to the suit property. The Appellant-Defendant has asserted that the Appellant-Defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as owner from the very inception.
52. The maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.
53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.”

After quoting Article 65 of the Limitation Act the Court observed as under:

“55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.
56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, 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 right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.”

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.

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 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. See also:

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;
D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314..
See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

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 Vs Prafulla Kumar Khan, 1988 AIR Cal 275).

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

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).

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

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

One does not begin until the other is renounced. It is observed in Karnataka Board of Wakaf Vs. Govt of India (2004) 10 SCC 779: AIR 2004 SC 2096 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).

(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:

It is on a public policy.
This law exists all-around the world.
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:

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.
Now-a-days Government records are reliable enough; we need not nurse illogical and draconian law.
Several Nations, relying on Governmental records, do not go after law of adverse possession.
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.

(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:

As Introductory/preliminary to grant (1) Injunction or (2) Recovery (Unnikrishnan v. Ponnu Ammal: AIR 1999 Ker 405
When serious denial or cloud on title (or right): Anathula Sudahakar v. Buchi Reddi: AIR 2008 SC 2033
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.)
Complicated or complex questions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033)
Insurmountable obstacle – Md. Noorul Hoda v. Bibi Raifunnisa : (1996) 7 SCC 767
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?

Yes. Then only it becomes ‘adverse’ as stated in Art. 65 of the Limitation Act.

(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 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.

It is held in Kshitish Chandra Bose as under:

“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.”

But, on a careful reading of this decision it can be seen that this decision arose from a matter that arose prior to 1963 Limitation Act and that Article 144 of the 1908 Act reigned the field. Therefore, K.T. Kurungottukandi Rarichakutty v. Aranda Rarichan, 2018 KHC 599, is not a correct decision.

(x) Once right is perfected by 20 years’ user. Thereafter obstruction for a few years. Can a suit be filed on the basis of (earlier) perfected by 20 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.”

Read in this cluster (Click on the topic):

Book No. 1. Handbook of a Civil Lawyer

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Divorce

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Adverse Possession: An Evolving Concept

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