Ouster & Dispossession in Adverse Possession

Taken from: How to Plead Adverse Possession? Adverse Possession: An Evolving Concept

Saji Koduvath, Advocate Kottayam.

Abstract

When a claim of ‘Adverse Possession’ is raised in a suit, there lies difference between (old) Limitation Act of 1908 and (new) Limitation Act of 1963, as regards (i) burden of proof and (ii) dispossession of true owner.
Under the 1963 Limitation Act –
- 1. The burden to prove Adverse Possession is upon the person who claims it.
- 2. “Dispossession of true owner“ is an important factor to attract Adverse Possession.
- 3. ‘Dispossession’ implies ouster itself. However, (i) the quality of evidence expected as to ‘dispossession’ in cases of adverse possession against a co-owner, or in case of a permissive-possession, stands on a ‘higher footing’; and (ii) this is particularly discerned as ‘ouster‘.

Under the old Limitation Act of 1908 –
- 1. The true owner lost the right to recover property if he did not come-forward with a suit for recovery within 12 years (of losing possession).
- 2. Therefore, the burden to prove ‘possession within 12 years’ was upon the true owner.
- 3. “Dispossession” of true owner was not an essential element of Adverse Possession. However, the requirement of ouster, for attracting Adverse Possession, insisted in cases of permissive or joint possession.

The ‘Ingredients’ of Adverse Possession

The authoritative decisions of our Apex Court made it clear that the following are the basic elements (1963 Limitation Act) to attract Adverse Possession –

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, and
on and from .. . .. (date).

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

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

In Dagadabai v. Abbas alias Gulab Rustum Pinjari, (2017) 13 SCC 705, it is observed as under:

“It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.”

The celebrated decisions that analyzed the ‘ingredients’ of Adverse Possession are –

Government of Kerala v. Joseph, 2023 KHC OnLine 6764.
Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729
P.T. Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, (2007) 6 SCC 59;
T. Anjanappa v. Somalingappa, 2006-7 SCC 570, and
Karnataka Board of Wakf v. Govt of India – (2004) 10 SCC 779.

‘Dispossession‘ implies ouster

It is clear from the above decisions that ‘dispossession’ (of the true owner) implies ouster itself. However, (i) the quality of evidence expected as to ‘dispossession’ in cases of adverse possession, against a co-owner, or in case of a permissive-possession, stands on a ‘higher footing’; and (ii) this is particularly discerned as ‘ouster‘. (See: Vidya Devi @ Vidya Vati v. Prem Prakash, AIR 1995 SC 1789, 1995-4 SCC 496.)

What is ouster?

“Black’s Law Dictionary” explains ‘ouster‘ as under:

“A putting out; dispossession; amotion of possession. A species of injuries to things real, by which the wrong-doer gains actual occupation of the land, and compels the rightful owner to seek his legal remedy in order to gain possession.
An “ouster” is a wrongful dispossession or exclusion of a party from real property and involves a question of intent.
Notorious and unequivocal act by which one cotenant deprives another of right to common and equal possession and enjoyment of property.”

Webster’s New World Law Dictionary expounds ‘ouster’ as under:

“Ouster: n. 1 The wrongful exclusion of a person from property or dispossession of same. 2 The removing from office of a public or corporate official.”

In P Ramanatha Aiyar’s “The Law Lexicon” with Legal Maxims, Latin Terms and Words & Phrases, Second Edition 1997) it is laid down-

“Dispossession” implies ouster, and the essence of ouster lies in that the person ousting is in actual possession.
Dispossession implies some active element in the mind of a person in ousting or dislodging or depriving a person against his will or counsel and there must be some sort of action on his part.” (Quoted in: U. P. Gandhi Smarak Nidhi v. Aziz Mian, 2013-3 ADJ 321, 2013-4 All LJ 149)

In “Mitra’s Legal and Commercial Dictionary” 5th Edition (1990) by A.N. Saha, ‘Dispossession’ is explained as under:

“The term ‘dispossession’ applies when a person comes in and drives out others from possession. It imports ouster; a driving out of possession against the will of the person in actual possession.” (Quoted in: U. P. Gandhi Smarak Nidhi v. Aziz Mian, 2013-3 ADJ 321, 2013-4 All LJ 149)

Denial of Title of the True Owner

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.

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

Adverse possession is hostile possession which is expressly or impliedly in denial of title of the true owner. To attract adverse possession there must be animus possidendi to hold the land adverse to the title of the true owner (Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316; M. Venkatesh v. BDA, 2015-17 SCC 1; Brijesh Kumar v. Shardabai, 2019-9 SCC 369) with the knowledge of the true owner. If the defendants are not sure who the true owner is, there will be no question of possessing the property hostile to the true owner (T. Anjanappa v. Somalingappa, 2006-7 SCC 570; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR 2020 SC 46).

Claimant must have accepted title of the true owner

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

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

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

In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR 2020 SC 461, our Apex Court allowed the appeal, negating the claim of adverse possession raised by the defendant, inter alia, for not accepting the title of the plaintiff (true owner), by the defendant. It was observed as under: “16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer

Legal ramifications of ‘Ouster’ in Adverse Possession

The simple word meaning of the term ‘ouster‘ is dispossession, removal, eviction, deprivation etc. It is definite that “dispossession” is an important element in the 1963 Limitation Act to attract Adverse Possession.

Legal ramifications of ‘ouster‘ is examined 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.”

From Vidya Devi @ Vidya Vati v. Prem Prakash it is clear that, in our law, ‘ouster‘ is a compendium of all ingredients to attract Adverse Possession.

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 real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.

1908 Limitation Act – ‘Ouster’ Needed against co-owner (for adverse possession)

Under 1908 Limitation Act, the the true owner lost the right to recover property if he did not come-forward with a suit for recovery within 12 years.

^Note: ^{(i) Under 1908 Limitation Act, ‘dispossession’ of true owner was not a necessary requirement to attract Adverse Possession. (ii) But, under 1963 Limitation Act, ‘dispossession’ of true owner is a decisive requisite to attract Adverse Possession.}

Permissive possession will not bring-in Adverse Possession. Therefore, under 1908 Limitation Act, plea and proof of ouster were insisted when one pleaded adverse possession against a co-owner; that is, positive and specific overt acts, ousting co-owner from possession, were imperative; and mere hostile acts of adverse possession were 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. See also: Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707.)

Article 142 of the (Repealed) Limitation Act, 1908

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

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

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

12 years

The date of the dispossession or discontinuance

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

Art. 65 of Limitation. Act, 1963

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

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

12 years

When the possession of Defendant becomes
adverse to the plaintiff.

When these provisions Attracted

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

Old Act of 1908 – Backdrop

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

New 1963 Act – Backdrop

Under the new Limitation Act, 1963 (Article 65), the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years. Therefore the true owner has no burden to show possession within 12 years (as required under the old Act).
The new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing him and bringing his attention to the ‘trespass’).
Under the 1963 Act, adverse possession arises, only if dispossession of true owner and only by the positive and hostile acts of the trespasser; and, mere possession is not sufficient (but, it must be ‘adverse’ to the true owner).
If no adverse possession, mere possession, of trespasser, however long, will not lose the right of the true owner (on the ground of limitation) to recover property on the basis of his title. [See: Government of Kerala v. Joseph, 2023 KHC OnLine 6764; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr. (two-Judge Bench) (1984) 2 SCC 286, Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591;Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756].

Article 64 and 65 Analysed

Article 64 and 65 of the Limitation Act, 1963 read as under:

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

General Propositions (Apply to both Sec. 64 and 65)

Both these Articles are attracted when the plaintiff has been dispossessed by the defendant.
Both articles deal with limitation for suits for recovery of possession.
Both are independent and apply two different situations.
In both these cases the defendant can rely on his title; or “perfection” of title by ‘adverse possession’, because, by virtue of extinguishment of title of the owner, the person in possession acquires absolute title (Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827).

Article 64

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

Article 65

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

Should there be a Counter Claim for Declaration?

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.

It appears that 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 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.

Burden/Onus of Proof – Complete change by Limitation Act, 1963

In the recent decision, Government of Kerala v. Joseph, 2023 KHC OnLine 6764, our Apex Court observed that burden of proof rests on the person claiming adverse possession. The Court followed P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, which observed as under:

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

Claim of Adverse Possession on Govt. Land – be Considered “More Seriously”

In the recent decision (August 9, 2023), Govt. of Kerala v. Joseph, 2023 KHC OnLine 6764, our Apex Court has emphasised, that the Courts have to consider the question of adverse possession “more seriously” when it is claimed on a land that belongs to the Government. In this case, the judgment of the first appellate court which observed that ‘the title of the Government on land cannot be lost by placing reliance on “casual advertence” or on the basis of “scanty material” ’ was restored by the Apex Court. The Apex Court held –

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

Date of Adverse Possession & Knowledge to the True Owner etc.

Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 explored Animus possidendi as a requisite ingredient of adverse possession. It was found that a mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner. The date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed – must be established. (Referred to in: Brijesh Kumar v. Shardabai, (2019) 9 SCC 369; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR 2020 SC 46).

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

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

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

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

“60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession…”

No Equities in favour of a Person Pleading Adverse Possession

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

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

Ouster & Dispossession in Adverse Possession

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