“Knowledge” Required in Adverse Possession

Saji Koduvath, Advocate, Kottayam.

Abstract

The “knowledge” required to establish adverse possession is –

  • the knowledge which is brought to the true owner
  • through the claimant’s open and hostile assertion of 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.

Therefore, to bring home adverse possession, the owner must have failed to take care to ‘take notice of‘ the ‘notorious facts‘,  despite the knowledge of the acts (of the claimant) under the colour of a hostile title. The burden of proving such knowledge lies squarely on the person asserting adverse possession.

Part I

“Knowledge” as to Adverse Possession

The “knowledge” required to establish adverse possession is that which is brought to the true owner through the claimant’s open and hostile assertion of title. It is clear from T. Anjanappa v. Somalingappa, 2006-7 SCC 570. It is held in this decision 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 formers hostile action.”(Quoted in: Annakili . A. Vedanayagam, AIR 2008 SC 346; 2007-14 SCC 308.)

In Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, it has been 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. ….. Trespasser’s long possession is not synonymous with adverse possession…”

In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, it is pointed out:

  • The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner.

Acts and claims must be hostile enough to bring the knowledge of the Owner

PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is an authoritative 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 (Article 65, Limitation Act – period 12 years from dispossession). And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object.“

Owner must have Failed to take care to know the ‘Notorious facts‘ 

To invite adverse possession, the owner must have failed to take care to know notorious facts,  despite the knowledge of the acts (of the claimant) under the colour of a hostile title.

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)

In Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639, it was observed as under:

  • “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

Should the Party claim Adverse Possession must KNOW the Actual Owner? 

Yes.

In M. Radheshyamlal v. V. Sandhya, (Abhay S. Oka & Ujjal Bhuyan, JJ.), AIR 2024 SC 1595, as under:

“12. Therefore, to prove the plea of adverse possession:-

  • (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
  • (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
  • (c) The plaintiff must also plead and establish when he came into possession; and
  • (d) The plaintiff must establish that his possession was open and undisturbed.
  • It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.
  • 13. … When a party claims adverse possession, he must know who the actual owner of the property is. Secondly, he must plead that he was in open and uninterrupted possession for more than 12 years to the original owner’s knowledge….”

If it is not SURE for the claimant who is the true owner, 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.

In T. Anjanappa v. Somalingappa, 2006-7 SCC 570, it is held as under:

  • …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.”
  • (Followed in: .
    • T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59;
    • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46)

Part II

‘Adverse’ Possession: Burden – Complete Change by Articles 64 and 65:

Under the 1908 Limitation 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 the 1963 Act). The new 1963 Act casts the onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing him and bringing his attention to the ‘trespass’). For a possession to be “ADVERSE”, under the 1963 Act, it must be one that obviously arose by dispossessing the true owner, admitting his Title (Knowing him).

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 of 1908, under which it was provided that a true owner would lose title if he did not file suit within 12 years of losing title).In other words, the new Act casts onus on the trespasser to prove claims of title by ‘adverse’possession against the true owner (knowing him and bringing his attention to the ‘trespass’).

 There is a drastic change by the 1963 Limitation Act, which casts a burden on the defendant to plead and prove adverse possession in a recovery suit based on title.  What is in the mind of the claimant of Adverse Possession is decisive; in other words, knowledge of the actual situation by the true owner is not a point at all. The burden of proof is upon the claimant. Once the title is established by the plaintiff, unless the defendant proves adverse possession, there will be no question of limitation. See:

  • Indira v. Arumugam, AIR 1999 SC 1549
  • C. Natrajan v. AshimBai, AIR 2008 SC 363; (S.B. Sinha & Harjit Singh Bedi, JJ.)
  • Government of Kerala v. Joseph, AIR 2023 SC 3988
  • P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59
  • K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98.

Animus (What is in the mind of the claimant) is decisive

What is in the mind (animus) of the claimant of the Adverse Possession is decisive; in other words, knowledge of actual situation by the true owner is not a point at all (in a claim before a court, for the burden of proof is upon the claimant).

  • 1.  Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
    • Article 65, Limitation Act says – period 12 years, from ‘dispossession‘.
    • 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 (trespasser).
Read Also:
•   Adverse Possession: A Concise Overview
•   What is Adverse Possession in Indian Law?
•   Adverse Possession Against Government
•   ‘Possessory Title’ in Indian Law
•   Ouster and Dispossession in Adverse Possession
•   Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
•   Government of Kerala v. Joseph – Law on Adverse Possession Against Government
•   Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
•   Illegal, Mistaken or Fraudulent Registration of Deed, and Subsequent Mutation: No Adverse Possession
•  How to Plead Adverse Possession? Adverse Possession: An Evolving Concept.

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