Dispossession and Knowledge: Essential Requirements of Adverse Possession

Though these requirements are are not expressly spelt out in Article 65 of the Limitation Act, as well as in the maxim nec vi, nec clam, nec precario, they are implicit in this Article and in this maxim.

Saji Koduvath, Advocate, Kottayam.

Abstract

Two distinctive and interrelated key elements are emphasised in the law of adverse possession in India:

  • First, 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 knowledge thereof to the true owner.

These elements of ‘dispossession‘ and the true owner’s knowledge are not expressly stated either in Article 65 of the Limitation Act, 1963, or in the classic trinity—nec vi, nec clam, nec precario—but have been developed through judicial exposition by the Supreme Court of India.

The following are the leading decisions in Indian law on this issue:

  • T. Anjanappa v. Somalingappa, 2006-7 SCC 570 (Arijit Pasayat and Lokeshwar Singh, Panta, JJ.)’
  • PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753 (S.B. Sinha and Markandey Katju, JJ.),

Key Takeaways

1. Article 65 of the Limitation Act, 1963, lays down the period of limitation for adverse possession as 12 years. It 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.

2. The words in Article 65 — ‘when the possession of the defendant becomes adverse to the plaintiff‘ — necessarily contemplate a “knowledge” on the part of the plaintiff. Such ‘knowledge‘ must have been perceived or obtained by the true owner from the claimant’s open, hostile and notorious acts asserting title.

3. Though the doctrine of adverse possession is statutorily recognised, it is not expressly defined in any statute. Indian common law requires the co-existence of the classic trinity—nec vi, nec clam, nec precario. It can be explained as under:

  • Nec vi: i.e. not by force –implying peaceability,
  • Nec clam: i.e. not in secrecy – implying publicity, and
  • Nec precario: i.e. not by permission –implying possession without the true owner’s consent, and thus adverse to him.

4. In adverse possession, the claimant’s intention to possess (animus possidendi) is decisive. The state of mind of the true owner is not determinative. What matters is the claimant’s outward assertion of hostile possession, sufficient to impute (and thereby infer) knowledge to the owner.

  • (‘Animus‘, in Latin, denotes “intention” or “state of mind;”
  • ‘possidendi‘ means “to possess.”)

5. The ‘animus’ required for adverse possession is the animus to possess the land, coupled with the conscious aim and objective of ‘dispossessing‘ the true owner.

6. To establish the requirement ‘adverse’, the trespasser must know who the true owner is.

7. The doctrine of animus possidendi and the classical common-law formulation—nec vi, nec clam, nec precario—are widely recognised across common-law jurisdictions, including the United Kingdom, Australia, Canada, New Zealand, the United States, Ireland, Singapore, Malaysia, and several Caribbean and African countries.

  • Distinctive features of Indian law: The specific requirements of dispossession and the true owner’s knowledge are peculiarities of Indian law. It flows from the language of Article 65—“when the possession of the defendant becomes adverse to the plaintiff.”

8. The distinctive statutory phrasing in the Indian law (“when the possession of the defendant becomes adverse to the plaintiff”) casts the burden of proof on the claimant.

9. In other Commonwealth jurisdictions, the statutes focus on the accrual of the right of action the moment the owner is dispossessed; they do not qualify it as the possession “becomes adverse.”

  • 1. United Kingdom (England & Wales): Section 15 of the Limitation Act 1980, – 12 years from the date on which the “right of action accrued.”
  • 2. Malaysia: Section 9 of the Limitation Act, 1953 – 12 years from the date the “right of action first accrued.”
  • 3. Singapore: Section 9 of the Singapore Limitation Act (Chapter 163) – 12 years when the right of action accrues.
  • 4. Australia: Vary by state, but they generally follow the “accrual of right”.
  • 5. Canada: “When the right to make an entry or distress or to bring an action first accrued.”

“Becomes Adverse to the Plaintiff”

Article 65 of the Limitation Act reads—“becomes adverse to the plaintiff”. It directly embraces doctrines of dispossession and the owner’s knowledge. In other common-law jurisdictions, these requirements do not remain in statutes; they exist only as implicit or judge-made inferences.

“Knowledge” as to Adverse Possession

Drastic changes have been made to the law on Adverse Possession by the 1963 Limitation Act. It introduced the words – “when the possession of the defendant becomes adverse to the plaintiff“.

Acts and Claims must be Hostile Enough to bring the Knowledge of the Owner

The ‘knowledge’ required to establish adverse possession is that which is brought home to the true owner through the claimant’s positive, open, and hostile acts, sufficient to convey a clear assertion of title adverse to the owner.

In State Bank of Travancore v. A. K. Panicker, AIR 1971 SC 996, (1972) 4 SCC 274 (G.K. Mitter, K.S. Hegde, P. Jaganmohan Reddy), it was held as under:

  • “9. Now coming to the question of adverse possession, there is conclusive evidence to show that the suit property was at all times in the possession of the tenants of the Tharwad referred to earlier. Krishnan Krishnan, Vellu and Kuruvilla at best could have only collected the rent. The evidence in this regard has been discussed in detail by the learned judge of the High Court. It is not necessary to deal with that evidence over again. We accept the conclusion of the learned judge that the suit property was all along in the possession of the tenants. Further as Krishnan Krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of Vellu and Kuruvilla for the same reason must be held to be permissive possession.  A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before the present suit.”

Upholding the decree of the trial court, it was observed in State Bank of Travancore v. A.K. Panicker (SBT v. Aravindan Kunju Panicker), AIR 1971 SC 996, (1972) 4 SCC 274, as under in Para 4 of this decision

  • “4. The trial Court came to the conclusion that Krishnan Krishnan, in law, can only be an agent of the plaintiffs in the first suit. He can only have a lien over the suit property, and the subsequent purchasers of his right can have no better title than what Krishnan Krishnan had. That Court also repelled the contention of the contesting defendants that Krishnan Krishnan or those who acquired his rights had perfected their title to the suit property by adverse possession. It held that the possession of Krishnan Krishnan was permissive and the same could not be considered as being adverse to the real owners. It further held that the property in question was always in the possession of the tenants, and it was never in the possession of Krishnan Krishnan or those who purchased his rights. It also held that there is no evidence to show that either Krishnan Krishnan or the subsequent purchasers of the suit property ever to the knowledge of the true owners asserted hostile title to the property.”
  • (Referred to in Pt. Shamboo Nath Tikoo v, S. Gian Singh, 1995 Supp 3 SCC 266.)

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

  • “It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owners title must be peaceful, open and continuous.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.”
  • (Quoted in: Annakili v. A. Vedanayagam, AIR 2008 SC 346; 2007-14 SCC 308,
  • 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.
  • See also: PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753,
  • Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756.)

Therefore, one line of enquiry in a case of adverse possession, will be –

  • whether the true owner had the required knowledge of the hostile acts of the claimant
  • and was there a means or chance of knowing such hostile acts.

Does registration of a deed work against true owner in suits on ‘Adverse Possession’

In Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J., Madras High Court), the suit property was sold only within the family members. Therefore, the co-owner against whom adverse possession was claimed was not in a position to know about the sale. She knew only at a later point of time. Hence it was held – that the registration is only a constructive notice to the person who has subsequently acquired such property (Explanation I of Sec. 3 of the Transfer of Property Act); and that if the proposition  that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers.

Read also: Is Registration of a Deed, Notice to Govt. and Public so as to Attract Adverse Possession?

Intention to Dispossess; Long Mistaken Possession Not Enough

The ‘animus’ or intention required for adverse possession is not the mere intention to possess, but an intention to possess in a manner that effectively excludes or dispossesses the true owner.

  • Article 65, Limitation Act, lays down the period of 12 years from ‘dispossession‘.
  • Therefore, the ‘animus’ required in adverse possession is animus to possess, coupled with the conscious intent to ‘dispossess‘ the true owner.

In PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, it is observed as under:

  • “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. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.”

It is finally held as under:

  • “The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess.”

‘Peaceful Possession’ Denotes Owner’s Inaction Despite Knowledge of Hostile Claim

‘Peaceful possession’ is an essential ingredient in perfecting adverse possession. It is embedded in the requirement of nec vi (not by force). It denotes possession of the claimant that continues without disturbance, notwithstanding his open and hostile acts. In other words, despite such acts—sufficient to make out knowledge of the adverse claim to the true owner—the owner fails to take steps to resist or interrupt such (hostile or unauthorised) possession.

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.”
  • (Quoted in: Neelam Gupta v. Rajendra Kumar Gupta, AIR 2024 SC 5374; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46; Krishnamurthy S. Setlur v. OV Narasimha Setty, 2020-12 SCC 244.)

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.”

See also:

  • 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

Owner must have Failed to Respond the ‘Notorious facts’ 

To invite adverse possession, the owner must have failed to ‘take notice of‘ the ‘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 ownerof 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)

Conclusion

  • Adverse possession, under Indian law, is generally expressed in terms of an intention to possess (animus possidendi).
  • It is further qualified by the requirement that such possession must be nec precario, i.e., not by permission (of the true owner).
  • In its settled common law formulation (over and above the statutory period fixed in Article 65, Limitation Act), adverse possession must be:
    • hostile in character;
    • open and notorious;
    • manifested through overt acts which exclude and dispossess the true owner; and
    • of such a nature as to bring home knowledge of the adverse claim to the true owner.
  • The phrase “becomes adverse to the plaintiff” in Article 65 of the Limitation Act supports the doctrines of dispossession and the owner’s knowledge.
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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