Neelam Gupta v. Rajendra Kumar Gupta (October 14, 2024) – Supreme Court Denied the Tenant’s Claim of Adverse Possession

Saji Koduvath, Advocate, Kottayam.

The Supreme Court, in Neelam Gupta v. Rajendra Kumar Gupta (October 14, 2024: C.T. Ravikumar and Sanjay Kumar, JJ.), upheld the decision of the High Court of Chhattisgarh at Bilaspur which held to the following effect –

  • Permissive possession of a defendant-tenant could not be converted as adverse possession except by proving his possession ‘adverse’ to the title of the plaintiff for a continuous period of 12 years or more; and
  • the starting point of limitation in terms of Article 65 of the Limitation Act would commence from the date of defendant’s possession becoming ‘adverse‘ and not from the date when the right of ownership was acquired by the plaintiff.

The findings of the Apex Court (as regards the Adverse Possession) can be summarised as under:

  • “Animus possidendi” (under hostile colour of title) is one of the ingredients of adverse possession.
  • To attract adverse possession (in a case of permissive possession of a defendant-tenant) it must be established –
    • the time from which it was converted ‘adverse to the title of the plaintiff’, and
    • it should be open and continuous for the prescriptive period.

The Findings as regards the adverse Possession

The Supreme Court referred to the following previous decisions to highlight the legal point it addressed –

  • Saroop Singh v. Banto, (2005) 8 SCC 330,
  • M. Durai v. Muthu, (2007) 3 SCC 114,
  • Mohd. Mohd. Ali v. Jagadish Kalita, (2004) 1 SCC 271,
  • Brij Narayan Shukla v. Sudesh Kumar, (2024) 2 SCC 590,
  • Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729,
  • M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1 (Ram Janmabhumi Temple case).

The Apex Court mainly based its decision on Saroop Singh v. Banto, (2005) 8 SCC 330, to highlight the change in the legal position brought under Articles 64 and 65 of the Limitation Act, 1963. The Court quoted the following from Saroop Singh v. Banto:

  • “28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.

Change in law – once plaintiff proves title, Defendant to establish adverse possession

The Apex Court pointed out that the law laid down in Saroop Singh’s case is reiterated in M. Durai v. Muthu, (2007) 3 SCC 114, and cited the following from M. Durai v. Muthu –

  • “7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-à-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.”

It is further pointed out by the Supreme Court that Saroop Singh’s case was reiterated in Prasanna v. Mudegowda, 2023 SCC OnLine SC 511, and Vasantha v. Rajalakshmi, 2024 SCC OnLine SC 132, also. Referring Mohd. Mohd. Ali v. Jagadish Kalita, (2004) 1 SCC 271, it is pointed out in this decision – the claimant in permissive possession (tenant) categorically stated that his possession was not adverse to the true owner, and therefore the logical corollary is that he did not have the requisite animus. It is further held – Once the plaintiff proves his title over suit property it is for the defendant resisting the same claiming adverse possession (to prove) that he perfected title through adverse possession.

The Apex Court further emphasised, referring Saroop Singh v. Banto, (2005) 8 SCC 330, that the starting point of limitation, in terms of Article 65 of the Limitation Act, 1963, commences from the date the defendant’s possession becomes adverse. Relying Brij Narayan Shukla v. Sudesh Kumar, (2024) 2 SCC 590, the Court considered the question whether tenants of original owner could claim adverse possession against transferee of land lord. It was held that tenants or lessees could not claim adverse possession against their landlord/lessor, as the nature of their possession is permissive in nature.

The Apex Court then quoted the following from Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 which illustrated the three classic requirements of adverse possession, namely, nec vi, nec clam and nec precario. It reads 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.”

The Court finally referred M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1 (“Ram Janmabhumi Temple case”) quoting the following –

  • “1142. 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. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
  • 1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case.”

Read articles on Adverse Possession, in this collection–

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

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Published by sajikoduvath

1 Comment

  1. karletanaji5's avatar karletanaji5 says:
    October 21, 2024 at 1:50 am

    Excellent article, Sir Thanks a lot

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