Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala

Saji Koduvath.

1. 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’.

2. ‘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’.

3. 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. ………..”

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

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

  1. Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
  2. T. Anjanappa v. Somalingappa [(2006) 7 SCC 570]
  3. PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
  4. Ravinder Kaur Grewal v. Manjit KaurAIR 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.”
  • 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

In a nutshell, adverse possession arises from:

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

5. 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 possession12 yearsThe 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.

6. Article 65 of Limitation Act, 1963: Complete Change 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 yearsWhen the possession of Defendant becomes
adverse to the plaintiff.

In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed by our Apex Court as under:

  • 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 person who bases his title on adverse possession, therefore, 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…. …. 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 arise.

7. Burden of Proof Sabotaged

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.”

Above decision stands against the consistent earlier view

It is pertinent to see that above decision stands against the consistent earlier view of the Supreme Court as expressed in L N Aswathama v. P Prakash, 2009-13 SCC 229, as under:

  • “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144, that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title).

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act


Contract Act



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