Law on Adverse Possession
The Law on Adverse Possession has been thoroughly explained the following video by Senior Advocate Ms. Kiran Suri. Please go through the complete video to understand the Law on Adverse Possession.
I have tried to note down the important points from the lecture delivered so that it can help you to revise all the points that have mentioned.
Article on Law of Adverse Possession
The lecture is divided into 7 parts
- Concept of Adverse Possession & its origin
- Relevant provision which would govern Adverse possession
- Which of the acts would amount to adverse possession
- Which acts do not amount to adverse possession
- Whether a suit can be filed by a person for declaration on the plea of adverse possession
- What should be the pleading & what is the burden of proof in cases of adverse possession
- Whether such law required a relook
1. Concept of Adverse Possession & its origin
The concept of adverse possession originated keeping in view 3 principles
- The title of the land should not be kept in doubt for a long time.
- There are competing rights between the paper owner (true owner) & the person who is looking after the property. The rights of person looking for the property should prevail over the rights of the paper owner who had neglected the property.
- The person claiming the hostile owner against the true owner & the true owner keeps quiet for a long time i.e. the statutory period which is 12 Years. Then it is presumed that true owner has abandoned his rights in favor of the possessory rights.
2. Relevant provisions which would govern Adverse possession
Adverse possession is not defined anywhere in the statute. It is not a positive right but a negative or consequential right which is based on the negligence or inaction of the part of someone else. Then only this negative right comes into action.
The right of adverse possession needs to be culled from the The Limitation Act.
Section 3 – Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defense.
This provision bars the remedy and not the right.
There is one exception to Section 3 which is Section 27 which talks about the extinguishment of the right.
Section 27 Extinguishment of right to property.—At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
After the extinguishment of the right, then someone else can come in. That are provided under Article 64, 65 & 112 of The Limitation Act. Section 112 is against the government which has a limitation period of 30 Years.
The first case related for adverse possession is
In Perry v. Clissold, 4 CLR 374; [1907] AC 73, the privy council stated following:
“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 for ever extinguished and the possessory owner acquires an absolute title.”
- The above LAW is still a GOOD LAW and has been approved by 3 judges bench of Supreme Court of India in Nair Service Society Ltd vs Rev. Father K. C. Alexander & Ors on 12 February, 1968
- The above case law Nair Service Society is a must read for anyone who wants to acquaint with possessory title.
3. Acts which amount to adverse possession
We have to consider 2 separate aspects:
Aspect 1 – The nature of possession must be
- Exclusive
- Continuous
- Uninterrupted
- ACTUAL – constructive possession does not give right to adverse possession
Aspect 2 – Your possession has to be HOSTILE to the TRUE OWNER.
ANIMUS POSSIDENDI – is sin qua non. there must be animus to disposes.
If your right against the true owner is not open to the knowledge of the true owner and are not exclusive then your right for adverse possession is not valid.
CASE – Karnataka Board of Wakaf v. Govt of India, AIR 2004 SC 2096
“In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. 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.
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. 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.
What kind of Enquiry the court should be holding in the case of Adverse possession?
This has been excellently explained inP.T. Munichikkanna Reddy & Ors vs Revamma And Ors on 24 April, 2007 as follows –
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.
– following enquires to be done
- When he has come into possession
- When landlord owner came to about the possession
- Whether his possession is HOSTILE
- Whether claimed as possessory title
4. Acts which do not amount to adverse possession
1. Permissive possession does not amount to adverse possession. Like keeping poor relative or gardener into your property.. This permissive possession does not become hostile. EXCEPTION – As and when possession becomes hostile to the ownwer then statutory period for adverse possession will start running.
- Example, landowner living elsewhere – property was rented out. Tennent was continuously paying rent. One fine day tenant stops paying rent and saying he has purchased the property and the actual owner did not do anything for 12 Years. The time when I stopped paying rent my time for Hostile possession has started. Hence, here permissive possession turns into HOSTILE possession.
2. Cases where 53A of TPA does not amount of adverse possession
- Co-owner is in possession of the property as a representative of all the owener. He cannot claim that I am in exclusive possession therefore I have perfected my right of adverse possession. BUT, in case the co-owner is in a position to prove that he has outsted the other co-owners. The principle of ouster would apply and then he can claim right to adverse possession.
- Case 1995 (4) SCC (p 496) – Vidya Devi @ Vidya Vati (Dead)By … vs Prem Prakash & Ors on 10 May, 1995
- co-owner has to outster the other owers to claim adverse possession.
5. WHETHER A PERSON TAKING A PLEA FOR ADVERSE POSSESION CAN FILE A SUIT FOR DECLRATION
Till the Year 2019, a person with adverse possession could not file a suit for declaration on the basis of Adverse possession.
However, in – Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729 Here, 3 judge bench of Hon’ble Justice Arun Mishra have held that a person with adverse possession CAN FILE A SUIT FOR DECLARATION
Para 62 – We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.”
6. PLEADING & BURDEN OF PROOF
The pleadings for adverse possession need to be very carefully framed as a wrong or exaggerated pleading can be FATAL to the case.
It is very important in adverse possession to plead what is required to be pleaded and not plead what is not required to be pleaded.
What is required to be pleaded has been elaborately explained in
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. 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.
WHAT NOT TO BE PLEADED?
YOUR right to adverse possession commence only and only if it is hostile to the true owner. So, if you are pleading adverse possession in alternative i.e. you got the property by GIFT and even if that’s not true then you have perfected your title by adverse possession is FATAL to the case.
- The above case in which the person who filed the suit actually disputed the ownership of the true owner. The court said if you are not sure of the true owner, then question of hostile possession dos not apply and you are out of it.
Inconsistent Pleading or pleading in alternative is not permissible in ADVERSE POSSESSION. However, there is an exception as mentioned in case – L.N. Aswathama And Anr vs P. Prakash on 21 April, 2009
- facts of the case – A is a tenant under B. A purchased from B. C files a suit against B you have no title, that suit is pending. A files suit that I have purchased property from B. But if B is not true owner, then I have perfected my title as way of adverse possession. In such case pleading in alternate is allowed.
BURDERN OF PRROF
The burden starts with the true owner to proof that he is the real owner of the property by showing various documentary evidence. After he is proved this, the burden shifts to the HOSTILE OWNER to prove that he is in possession of land beyond the statutory period which was known to the true owner that it is HOSTILE to him and he did not do anything within the statutory period.
7. Does the law needs a relook
The scholars have mentioned that the law of adverse possession is a legalized way of land theft. Where a true owner has been bereft of his property because of his some inaction.
Case 1 – Hemaji Waghaji Jat vs Bhikhabhai Khengarbhai Harijan & … on 23 September, 2008
Para 34 Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. 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.
Case 2 – State Of Haryana vs Mukesh Kumar & Ors on 30 September, 2011
para 47 – Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law – to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.
Hence, we can see the Law of Adverse Possession having divergent views and a need expressed by Supreme Court to rethink the existing law.
