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An Overview on the Law of
Adverse Possession

04 Jun 2020
 
By : Aakash Sehrawat
 
Categories : Articles

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

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 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

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 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

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 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.

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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

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 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.

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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

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 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

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 become adverse to the true owner
and not otherwise.

Read also : हाईकोट ने रा य सरकार को िदया बड़ा

झटका, र क कुलप त डॉ. रजी जॉन क िनयुि

. 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

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 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
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 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-

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 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.

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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

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 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.

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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

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 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

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 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.

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. 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.

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 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

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 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

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 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’

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 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.

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 . 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.

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 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

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 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.

Bibliography

. (1907) A.C. 73
. AIR 1968 SC 1165
. (2004) 10 SCC 779
. AIR 1964 SC 1254
. (2007) 6 SCC 59
. 2020 SCC Online SC 37
. (1994) 6 SCC 591
. 2018 (10) SCJ 533
. (1996) 1 SCC 639
. (1995) 4 SCC 496 
. (2020) 2 SCC 569
. (2014) 1 SCC 669
. (2019) 8 SCC 729
. Civil Appeal No 8424/2009
. (2017) 13 SCC 705 
. (2009) 13 SCC 229
. (2009) 16 SCC 517
. (2011) 10 SCC 404

Picture Source :

 
Aakash Sehrawat
 
Tags : Adverse Possession

Supreme Court

Code of Hammurabi

Specific Relief Act 1963

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Vicky

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 Namaskar sir me haryana se hu
sir 1962 k jamin istemal k bad
hmare pas jitni jamin thi usa km
jamin hmare pas ayi thi or hmari
kuch kimat ( jamin) panchayat ki
tarf bkaya rhh gyi thi jiske bad
hm ne or kuch gav valo ne case
kiye the frr hmne case ko bich
me chhod diya tha lekin or log
case ldte rhe or unko jamin mil
gyi 1985-86 me or hmne case
1983 me utha liya tha kya hm
unhi case k behalf pr frr jamin le
skte hh plz sir reply jrur krna
hmare pas 1962 se phle ki sari
30-40 sal purani nakal pdi hh

Sasi
Insightful and very informative
article sir

Sunil Kumar
My land kurabandi is not done
since beginning (1970) ,and i
cultivating 2.5 bigha since
beginning but in actual
registered land is 5 bigha on my
name. in case if i file the case of
kurabandi in tehsil with 116 article
then is it also considered as
adverse possession..as other
peoples are cultivating additional
fields but its not sure if these
belongs to me. I can say we tried
to be in touch with tehsil
sometimes in past but not take
followup on regular basis..but
now i am actively following up
the case

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 IMTIYAZ AHMED KHAN
Sir, Hum log 22 sal se ek flat me
rah rahe hain aur us falt ka owner
aj tak kabhi nahi aya, jab hum
society maintenance, and
property tax pay kar rahe apne
pocket se, ab wo society
redevelopment me jane wali hy,
is scenario me hum log ke paas
ko bhi jagah nahi reh jayegi, kya
hum log is flat pe adverse
possession suit file krke title
claim kr sakte hain kya?

KPV Ramana
My residential plot was occupied
by a local political leader (ruling
party) in Carona time, How can I
get back in my control. As a
middle class small pvt.employee,
how can I get justice for myself.
Please let me know.

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