Adverse Possession: A Concise Overview

Saji Koduvath, Advocate, Kottayam.

Adverse Possession

Adverse possession arises where a person is in possession of another’s property in a manner that is open, notorious, and continuous for the statutory period—nec vi, nec clam, nec precario. Upon fulfilment of these conditions, title vests in the possessor by operation of law, and the true owner’s title is extinguished.

Adverse Possession in Commonwealth Countries: Across Commonwealth jurisdictions, the doctrine of adverse possession is applied broadly in similar terms.

Drastic changes

Substantially, the aforementioned general principles of law had been followed in India (under the Indian Limitation Act 1908) till 1963. Drastic changes have been made to the law on Adverse Possession by the Indian Limitation Act, 1963. It introduced the following words (in Article 65) for denoting the starting point of limitation –

  • when the possession of the defendant becomes adverse to the plaintiff“.

These words emphasise two distinctive and interrelated key elements:

  • First, the intention of the claimant—to possess the land of another with a positive intent to dispossess him; and
  • Second, knowledge of the true owner—possession of the claimant must be open and hostile enough to impute or convey knowledge thereof to the true owner.
Gaya Prasad Dikshit v. Dr. Nirmal Chander, 1984-2 SCC 286,
Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591,
Ramiah v. M. Narayana Reddy,  AIR 2004 SC 4261,
T. Anjanappa v. Somalingappa, 2006-7 SCC 570,
P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59,
Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316,
Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324,
Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756, 
Uttam Chand v. Nathu Ram, 2020-11 SCC 263,
Govt of Kerala v. Joseph, AIR 2023 SC 3988.

Changes Made to 1908 Limitation Act

Under the (earlier) Limitation Act, 1908 (Articles 142 and 144), the true owner was required to institute a suit within twelve years of dispossession; failing which, the occupier’s possession could mature into adverse possession.

  • Under the 1963 Limitation Act, it is no longer necessary for the true owner to prove that he was in possession within 12 years of filing the suit (as required, earlier, by Articles 142 and 144 of the Limitation Act, 1908).
  • The burden lies solely on the claimant of adverse possession to establish hostile animus, denial of the title of the true owner, wrongful dispossession, and other overt acts constituting adverse possession.

Effects of the Drastic Change

  • The limitation starts ‘when the possession of the defendant becomes adverse to the plaintiff‘ (Art. 65, Limitation Act).
  • The entire burden of proving title by adverse possession will be on the claimant.
  • Mere possession, however long, will not be adverse.
  • The bar of limitation arises in a title suit (filed by the true owner) only if the defendants have a sustainable claim of adverse possession.
  • Even if the plaintiff has knowledge of the defendants’ possession (however long) – no relevance.
  • The claimant must (first) admit the ownership of the true owner.
  • An issue as to ‘adverse possession’ is necessary.
  • Proper animus (pleading and proof) needed.
  • The ‘mindset/attitude’ of the true-owner is immaterial.
  • Adverse possession and title claim will not go together. Defendants must have relinquished the title claim, if raised, to prop up adverse possession.
  • If the plaintiff (title holder) proves his title in a recovery suit, the defendant will fail unless he has a better title or pleading and proof on adverse possession.
  • Once the plaintiff (title holder) in a recovery suit creates a high degree of probability, onus shifts to the defendant to prove a better title or adverse possession (See: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752).

Ingredients of Adverse Possession

  • (a) hostile animus,
  • (b) denial of title of true owner – admitting the title of the true owner,
  • (c) wrongful dispossession of true owner,
  • (d) placing the date of starting of wrongful dispossession,
  • (e) some overt act,
  • (f) hostile (or notorious) acts must be peaceful, open and hostile to the true owner.
    • It is expressed in the classical formulation of adverse possession in the Latin maxim: “nec vi, nec clam, nec precario
    • That is –
      • not by force: nec vi,
      • not in secrecy: nec clam
      • not by permission: nec precario.

Note:

  • (i) It starts only – “when the possession of the defendant becomes adverse to the plaintiff” (Art. 65).
  • (ii) For perfecting adverse possession, the statutory requirement of ’12 years’ in the Limitation Act, 1963 (particularly Article 65) must also be satisfied.
Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779;
T. Anjanappa v. Somalingappa, (2006) 7 SCC 570;
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753

Suit on Title – No Limitation Unless Defendant has Claim of Adverse Possession

  • No question of limitation arises unless the defendant substantiates his plea of adverse possession. This is because, after the significant change brought about by the Limitation Act, 1963, mere possession—however long—does not, by itself, become ‘adverse’.
Neelam Gupta v. Rajendra Kumar Gupta, AIR 2024 SC 5374
Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021; 2024 KLT(Online) 3051,
K.J. Abraham v. Mariamma Itty, ILR 2016-3 Ker 98;
C. Natrajan v. Ashim Bai, AIR 2008 SC 363; 2007-14 SCC 183
Indira v. Arumugam, AIR 1999 SC 1549,
C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808.

Acquiescence, Inaction, etc.

  • The same is the position even if – acquiescence, inaction, etc. on the part of true owner.
  • Even if the plaintiff admits that the defendant has been a trespasser for a hundred years, there will be no bar of limitation to a recovery suit based on title, if the defendant does not claim adverse possession.

No Adverse Possession, Unless Claimant ‘Admits Title of the True Owner

  • There can be no ‘adverse’ possession where the claimant does not admit the title of the true owner.
Shri Uttam Chand v. Nathu Ram, AIR 2020 SC 461; 2020-11 SCC 263,
M. Siddiq v. Suresh Das, 2020-1 SCC 1
(Ram Janmabhumi Temple case)
Raghavan, v. Devayani, 2024-2 KHC 417,
M. Radheyshyamlal v. V Sandhya, 2024 INSC 214,
Nand Ram v. Jagdish Prasad, AIR 2020 SC 1884; 2020-9 SCC 393,
Brijesh Kumar v. Shardabai, (2019) 9 SCC 369,
Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729,
Dagadabai v. Abbas alias Gulab Rustum Pinjari, (2017) 13 SCC 705,
T. Anjanappa v. Somalingappa, (2006) 7 SCC 570,
Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779,
Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150.
  • If one party to the suit (defendant or plaintiff) effectively pleads adverse possession (admitting the title of the other party), normally, the other party need not prove his title, for it can be taken as an ‘admitted fact’.

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.

Party claims Adverse Possession must be SURE who is the Actual/True Owner

If the defendants are not SURE who the true owner is, the question of their being in hostile possession and the question of denying the title of the true owner do not arise. 

T. Anjanappa v. Somalingappa, (2006) 7 SCC 570,
Shri Uttam Chand v. Nathu Ram, AIR 2020 SC 461; 2020-11 SCC 263,
P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59.

Burden is on the Claimant

  • Possession of the claimant, under the 1963 Limitation Act, must be so open and hostile as to impart knowledge thereof to the true owner. The burden to prove this kind of possession is on the claimant (of adverse possession).
Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021; 2024 KLT(Online) 3051,
Janata Dal Party v. Indian National Congress, 2014-16 SCC 731,
C. Natrajan v. AshimBai, AIR 2008 SC 363; 2007-14 SCC 183,
Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517,
Mohammad Ali v. Jagdish Kalita, 2004-1 SCC 271,
Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639.

Adverse Possession – Irrational, Illogical Claim

In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517, it was pointed out that the claim of adverse possession must be read in the context of human rights. The law which ousts an owner on the basis of inaction within limitation is found in this case to be irrational, illogical and wholly disproportionate.

See also: Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324,
State of Haryana v. Mukesh Kumar, AIR 2012 SC 559; 2011-10 SCC 404.

22nd Law Commission Report – No Justification for Any Change

The 22nd Law Commission (considering Hemaji Waghaji case) placed its Report on 24th May, 2023 , to the following effect – 

  • The law relating to adverse possession should be continued in its present form, and there was no justification for making any change thereto.

The Law Commission Recommended as under:

  • The Law Commission is of the considered view that there is no reason or justification to enlarge the period of limitation provided under Articles 64, 65, 111 or I12.
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?
   Illegal or Fraudulent Regn. 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? 

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