An Overview on the Law of Adverse Possession

The Author, Aakash Sehrawat is an Advocate practicing at the Delhi High Court.

Concept of adverse possession, its origin and the governing provisions of Law

Historically the concept of adverse possession related to land being taken by force or conquered by feudal lords, barons and conquerors from the poor who could not protect their right and title over those lands. This was mostly done in older times when one country or ruler used to conquer another country then they would simply grab those conquered lands from the original and true owner, however this concept has changed with time. The concept of adverse possession in India is more than a century old concept of law which is primarily based on three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of person taking care of the land and making highest and best use of the land will prevail over the actual title holder of the land who does not take care of the land. In other words the person who maintains and makes the best use of the land has a better title over the land than the person who is bothered about the land at all. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e. a situation should not arise in which the title holder of the land is not own. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quiet and not taking any action against the said person as provided under the law.

The concept of adverse possession of land traces back to the Code of Hammurabi which contained 282 rules including Rule 30 which somehow closely resembles the law of adverse possession which we even follow till date. The Rule 30 of the Code stated “if a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.”

Even in countries like UK, USA, Germany, France, Australia, etc the concept of adverse possession of land is recognised till date with different limitation period of every country. Under the English law which still recognises the law of adverse possession, the true owner could recover the possession of his land within a period of 20 years from the date of dispossession as prescribed under the Statute of Limitation, 1639. However with changing times the said law also saw some changes in the English law. Currently the law of adverse possession in UK is governed by the Land Registration Act, 2002 which lays down two scenarios through which adverse possession can be claimed by a squatter. Where the land is unregistered or where the land is registered but the trespasser notched up 12 years adverse possession before 13 October 2003, i.e. when the Land Registration Act, 2002 came into force, the rules given in Land Registry Guide 5 will apply and if the trespasser in the case of registered land did not acquire 12 years of adverse possession before of the Act of 2002 coming into force then rules stipulated in Land Registry Guide 4 will apply.

The concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry v Clissold^[1] wherein it was held :-

"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. "

The decisions of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three judges of the Hon’ble Supreme Court in the case of Nair Service Society v K.C. Alexander^[2].Thus it can be said that till date it is a good law, that if a person in hostile possession of the land though not being the true owner, becomes the absolute owner if the rightful owner of the said land does not come forward within the statutory period of twelve years as provided under the Limitation Act, 1963.

Apart from certain provisions of the Specific Relief Act, 1963 regarding the dispossession of a person without his consent from an immovable property the provisions of Limitation Act, 1963 are relevant in the cases of adverse possession of an immovable property. The term ‘adverse possession’ is not defined anywhere in the Limitation Act, 1963 as it is not a positive right and merely a negative and consequential right which is based on the negligence or inaction on the part of the rightful owner of the land to come forward and take legal recourse in case any person is in hostile possession of his land.

Under Section 3 of the Limitation Act, 1963 no cognizance can be taken by the Court if the suit is barred by limitation whether defence taken by the defendant or not, however, it is to be noted that the said provision bars only the remedy of the person filing the suit and not his right as available to him under law. However there is an exception regarding extinguishment of right under the Limitation Act, 1963 as provided under Section 27 which provides that in case the person has not taken any action for recovery of possession during the period of limitation then his rights get extinguished. So in a situation where a person does not take any action for recovery of possession of land within a period of twelve years as provided under Article 65 in Schedule I of the Limitation Act, 1963 his rights get extinguished and therefore the land is left in abeyance. But the law of adverse possession is based upon the principle that a land cannot be left in abeyance for a long time as already stated above. Hence someone has to be the owner of the land when the rightful owner has lost his rights once failed to take action as provided Section 27 of the Limitation Act. So in the said situation the person is adverse possession of the land becomes the rightful and absolute owner of the land as per Article 65. It also has to be kept in mind that limitation period of twelve years starts only when the possession has become adverse to the true owner and not otherwise.

Acts amounting to adverse possession

In a case of adverse possession of land there should be two aspects taken into consideration. Firstly, the nature of possession of land should be exclusive, continuous, uninterrupted and it should be actual physical possession and not merely constructive possession over the land. Secondly, the possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession.

One of the recent judgments passed by the Hon’ble Supreme Court in the case of Karnataka Board of Wakf v Government of India & Others^[3]deals with this aspect of nature and acts amounting to adverse possession. The Hon’ble Supreme Court in this judgment held :-

“Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”

The judgment of Karnataka Board of Wakf (supra) was passed on the basis of the judgments already passed by the Hon’ble Supreme Court in the case of S.M. Karim v Bibi Sakinal^[4] and few others.

The Hon’ble Supreme Court in P.T. Munichikkanna Reddy & Others v Revamma & Ors^[5] further laid down certain guidelines regarding the enquiry to be held by the Courts while deciding the plea of adverse possession. The Hon’ble Court held :-

“Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.”

Recently, in the case of Uttam Chand (dead) through LRs v Nathu Ram (dead) through LRs & Ors.^[6] while relying on its previous decisions again reiterated that only having long continuous possession is not enough to perfect title by adverse possession and all other ingredients like possession that is hostile, exclusive, uninterrupted, etc are also necessary.

Acts not amounting to adverse possession

Broadly there are three cases where the plea of adverse possession by a party cannot be taken. Firstly, in the cases of permissive possession the plea of adverse possession cannot be taken by a party. This situation is affirmed by the Hon’ble Supreme Court in the case of Thakur Kishan Singh v Arvind Kumar^[7], wherein it held that a permissive possession to become adverse must be established by cogent and convincing evidence to 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. This position was reaffirmed by the Hon’ble Supreme Court in Ram Nagina Rai v Deo Kumar Rai (D) By Lrs^.^[8]. However a plea of adverse possession can certainly be taken in cases of permissive possession when such permissive possession becomes hostile and adverse to the true and real owner.

Second situation in which a party cannot take the plea of adverse possession is when the possession of the land is given by one party to another as part performance in pursuant to an agreement to sell as provided under Section 53A of Transfer of Property Act, 1882. This situation was dealt by the Hon’ble Supreme Court in the case of Mohan Lal (deceased) through his LRs. Kachru & Ors. v Mirza Abdul Gaffar & Anr^[9] wherein the Court said that a person claiming to come into possession of a property by virtue of Section 53A of Transfer of Property Act, 1882 cannot claim possession by simultaneously taking the plea of adverse possession as both the pleas are inconsistent with each other.

The third situation in which a person cannot take the plea of adverse possession is when a person is the co-owner of the land in respect to which it is claiming ownership by way of adverse possession. A co-owner to a property is only acting as a representative on behalf of all the other co-owners. However, there is an exception to this situation as well. The Hon’ble Supreme Court in the case of Vidya Devi @ Vidya Vati (Dead)By LRs v Prem Prakash & Ors^[10] held that a plea of adverse possession by a co-owner can be taken if that person is able to prove that he has ousted all the co-owners from the property coupled with all the other ingredients to constitute adverse possession. As per this judgment there are 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.

Recently, the Hon’ble Supreme Court in the case of Vidya Devi v State of Himachal Pradesh & Ors^[11] held that the plea of adverse possession cannot be taken up by the state while justifying its forcible expropriation of private property without following due procedures of law.

Can suit be filed by a person on the basis of adverse possession

In Gurudwara Sahib v Gram Panchayat Village Sirthala^[12] the plaintiff in his suit sought a declaration that he had acquired ownership over the suit land by way of adverse possession. The trial court observing that the plaintiff though in adverse possession of the suit land cannot seek declaration as to ownership on the basis of adverse possession. The said position was affirmed by the Hon’ble Punjab and Haryana High Court and later by the Hon’ble Supreme Court by holding that the plea of adverse possession can only be used as a shield by a defendant in a suit initiated against it and cannot be used as a sword by a plaintiff.

However, this ruling by the Hon’ble Supreme Court was overruled in the judgment of Ravinder Kaur Grewal and ors v Manjit Kaur and ors^[13]. The proposition of law that whether Article 65 of the Limitation Act, 1963 allows the defendant to take up the plea of adverse possession as a shield in a suit initiated against it or can be taken up by a plaintiff as well to protect the possession of an immovable property or recover it in case of dispossession which was not raised earlier in Gurudwara Sahib(supra) was taken up in this case. The Court after examining its earlier judgments held that Column no III in Article 65 which states ‘that the limitation of 12 years runs from the date when the possession of the defendant becomes adverse to the plaintiff’ nowhere suggests that the suit cannot be filed by the plaintiff for possession of immovable property or any interest therein based in title acquired by way of adverse possession. The Hon’ble Supreme Court also observed that the expression ‘title’ used in the opening part of Column no I of Article 65 would include the title acquired by the plaintiff by way of adverse possession. Thus the Court held that a person who has perfected his title by way of adverse possession can file a suit for restoration of possession in case of dispossession and therefore concluding that the plea of adverse possession can be used both as a sword and as a shield.

The position laid down in Ravinder Kaur Grewal(supra) has been affirmed by the Supreme Court in the case of Gurtej Singh v Zora Singh(dead) through Lrs & Ors^[14] that the plea of adverse possession can be taken by plaintiff as well.

Pleadings and burden of proof

To claim title though adverse possession it is necessary to take into consideration what is actually required to be pleaded and what not. The Hon’ble Supreme Court in Karnataka Waqf Board (supra) regarding the pleadings to be made by a person while claiming title over an immovable property on the basis of adverse possession held :-

“Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession”

The Court further held that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property therefore, the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.

In Dagadabai (Dead) By Lrs v Abbas @ Gulab Rustum Pinjari^[15] held that a person first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession.

Inconsistent plea cannot be taken by a party when claiming title by way of adverse possession i.e. a party cannot claim his ownership over a property on the basis of title and by way of adverse possession simultaneously as both such pleas are mutually inconsistent. Interestingly one such plea, however, alternative and not inconsistent was allowed by the Hon’ble Supreme Court in L.N. Aswathama And Anr v P. Prakash^[16]. In this case a person ‘A’ was tenant under ‘B’ and ‘A’ subsequently purchased the property from ‘B’ and became its owner. Another person ‘C’ who claims to be the true owner filed a suit or title and possession against ‘B’ stating therein that he was the true owner and not ‘B’. The person ‘A’ denied the title of ‘C’ over the suit property by stating that he became the owner of the property by purchasing it from ‘B’ but in case ‘B’ did not have title and consequently his claim based on title was rejected, then having regard to the fact that he had been in possession by setting up title in ‘B’ and later in himself, his possession was hostile to the true owner i.e. ‘C’; and if he was able to make out such hostile possession continued for more than 12 years, he could claim to have perfected his title by adverse possession.

The burden of proof in respect to adverse possession is on the person who claims title by way of adverse possession. As per Article 142 and 144 respectively of the Limitation Act, 1908 in a suit, the plaintiff (that time only plea of adverse possession could be taken only by defendant) had to prove that he had the title and had been in the physical possession of the property since last 12 years. But under the present Limitation Act, 1963 the burden has now shifted. Now true owner just have to prove ownership and the onus shifts on the person claiming title by way of adverse possession.

Whether any relook required in the present law?

Some consider it as legalised land theft and wonder if such a law is really required or not. Due to the law of adverse possession sometimes there arise situations when true owners of immovable property are dispossessed just because of their non-deliberate inactions, poverty or some other reasons due to which those true owners are unable to approach the court to avail the remedies to them under the law.

The Hon’ble Supreme Court in Hemaji Waghaji Jat v Bhikhabhai Khengarbhai Harijan & Ors.^[17]observed that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The Court while asking the Government of India to reconsider the law of adverse possession further held, the law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

In State Of Haryana v Mukesh Kumar & Ors^[18], the Hon’ble Supreme Court gave certain suggestions that in case the law of adverse is not abolished then the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12 years. Such an extension would help to ensure that only those claimants most intimately connected with the land acquire it, while only the most passive and unprotected owners lose title. The Hon’ble Supreme Court vide this judgment recommended the Union of India to consider either to make necessary amendments concerning the law of adverse possession or abolish it for good.

Keeping in view of the abovementioned judgments passed by the Hon’ble Supreme Court, the Law Commission of India prepared a consultation paper cum questionnaire having 11 questions related to adverse possession of immovable property. The questions put in the questionnaire were- whether the law of adverse possession should remain in the statutes or is it time to repeal them, should the trespasser be compensated by the true owner for the improvements done by him to the land, etc. However, there are no further developments whether to continue with this law after having certain changes or abolish it completely. Till the time any changes are brought by the legislatures the current provisions of law and precedents would have to be followed in the country.

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