Concept of Adverse Possession and Landmark Judgments

LI Research

In the eyes of society everything can’t be covered under the umbrella of governance, disciplines and order. It is same as Directive principles of state policy as stipulated in Part IV of the Indian Constitution. The Articles prescribed in this part are determining, significant and important. Yet, these articles are not justified. The principle of adverse possession can be seen from the point of government assistance and good cause. Law is like an abacus which contains all rules, regulations, rights and liabilities.

The Act of Limitation is one of the most significant laws which endorses the limitation period in which the things ought to have been finished. The object of Limitation Act is to make people responsible about their right to profess interest in the property within specified and endorsed period^[1]. The main idea behind this act was that “one should not sleep over his right for years together”. If law doesn’t prescribe any fix time period for claiming rights or interest in property then there might be a confusion or chaos.

Adverse Possession means that when a trespasser or a stranger comes into possession of the land then the possession should be exclusive and it should be a continuous possession without interference for a specific period of time typically 12 to 30 successive years. Such time period is provided by the Limitation Act, so that the true owner can get an ample amount of time to keep an eye on and shield their property from another’s adverse claim.

In the case where true owner neglects to protect their property for an extended period, then he is bound to lose the land. The maxim as discussed above that “law and equality does not help those who sleep over their rights” is invoked in support of prescription of title by adverse possession. Therefore, it can be said that, the original title holder of the land who fails to enforce his right over the land can’t be allowed to re-enter the land after a long passage of time.

Article 65 Schedule-I of the Limitation Act, 1963, describes the adverse possession, which recommends a constraint of 12 years for a suit for ownership of an immovable property or any interest in that dependent on title.

Section 27 of Limitation Act, acts as an exception to the principle of adverse possession. Section 27 says that- if an individual, within the specific time period, fails to file a suit for recovery of possession, his right to recover the possession or ownership of that property also extinguishes^[2]. Yet property can’t leave proprietor less, it must be in the name of some other person who may have interest over it. When this type of situation arises, it gives rise to concept of adverse possession.

Therefore, any person who have interest with respect to adverse possession of the property to the interest of true owner and if true owner fails to file a suit for recovery of possession within a specified period, then the person in possession becomes owner of property by way of adverse possession^[3].

The person who claims title through adverse possession, has the onus to prove that he has the title of that property. According to Article 142 and 144 of the Limitation Act, 1908, the petitioner, had to prove that he had been in the actual ownership of the property for a continuous time period of 12 years.

The important components of adverse possession are–

1. The first element of adverse possession is that the trespasser must occupy the land for his/her permanent usage. The act should be physical in nature to show that the possessor is exercising the dominion over the land.
2. The second important element is that, the possession must be continuous i.e. 12 years.
3. Third element is, exclusive possession, which means- sole occupier. For example- building of fences, is the proof of exclusive possession^[4].

Some important judgements with respect to Adverse possession are-

1. The Hon’ble Court in the case of Karnataka Board of Wakf v GOI^[5], held that, a proprietor would be considered to be in control of a property insofar as there is no interruption. The title of the property won’t be affected if it is non-used by the owner for a long time. But if someone else claims the property and affirms rights over it and the individual having title omits to make a lawful move against such individual for quite a long time together, then the situation will be modified.
2. In case of Amarendra Pratap singh v Tej Bahadur Prajapati^[6], the Hon’ble Supreme Court of India, defined the meaning of adverse possession. It stated- “A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.”
3. In Mallikarjunaiah v Nanjaiah the Hon’ble Court observed, “Mere continuous possession, howsoever long it may have been in the capacity of its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.”
4. The Hon’ble Kerala High Court in Abraham Mathew and ors. v Mariamma Yohannan^[7], held that, the defence of defendant is not tenable, when he claims both true ownership and right of adverse possession at same time. Mere possession without proof that same became hostile against true owner does not convert permissive possession into adverse possession.
5. In Nirmal Chand vs Gaya Prasad Dikshit & Anr^[8], the owner denied the licensee by issue of notice, yet didn’t remove him. Simply giving him a notice to evict him from the property. Allahabad High Court held that: no inference can be drawn that the owner intentionally renounces his title in the absence of any evidence to show that the licensee claimed to be in possession in his own aright or against the wishes of the owner.
6. Balkrishna s/o. Bhagwanji Lohi and another v Prakash s/o Sheshrao Lohi and other.^[9]Adverse possession Evidence and proof – No proof was produced to show that ownership of defendants with intent to possess started from specific date – No date or year has been expressed by respondents from which they started occupying property with requisite animus possidendi to knowledge of plaintiffs. Therefore, it cannot be said that defendants have proven their title on basis of plea of adverse possession.
7. In SM Karim v Mst. Bibi Sakina^[10] it was held that adverse possession must be adequate in continuity, in publicity and extent and a plea is required, to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.
8. Saraswatibai w/o Ramkrishna Kshirsagar v Lila w/o Sampatrao Tarhekar^[11]– Adverse possession – Not accessible to the defendant in a suit by petitioner for recovery of ownership, if he or his predecessor entered in possession legitimately under an agreement and continued to remain in possession till the date of suit.
9. In Jagnnath Mevari­Vs­Smt.Chandini Bil^[12]n, the question of adverse possession arose between co-tenants and it was held that in order to establish adverse possession between the co-sharers there must be an evidence of an open assertion of a hostile title by one of them to the knowledge of others. Mere non-participation in the profits by one party & exclusive occupation by other is not conclusive.
10. Two judge bench of High Court in State Bank of Travancore v Aravindan Kunju Panicker & ors^[13], held that the plea for adverse possession will not be applicable if the adverse posser doesn’t know the real owner of the property. Later the matter was taken to Supreme Court, where the Hon’ble bench held that, “it is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner”. Therefore, it is clear that the possession should be exclusive and open and the possessor need not to know the real owner of the property.

1. Aakash Sehrawat, Concept of adverse possession, its origin and the governing provisions of Law,↑

2. Valliamma Champaka v. Sivathanu Pillai (1964) 1 MLJ, 161 (FB) ↑

3. Henry W. Ballantine, The Harvard Law Review Association, Dec., 1918, Vol. 32, No. 2 (Dec., 1918), pp. 135-159, https://www.jstor.org/stable/1327641 ↑

4. Sridevi Shanker, Adverse Possession versus Right to Property, ↑

5. Karnataka Board of Wakf- v.- GOI (2004) 10 SCC 779 ↑

6. Amarendra Pratap singh v. Tej Bahadur Prajapati, 2003 SC ↑

7. Abraham Mathew and ors. v. Mariamma Yohannan AIR 2014 (557) (KER.) ↑

8. Nirmal Chand v. Gaya Prasad Dikshit And Anr. 1978, AIR 1979 All 54 ↑

9. Balkrishna s/o. Bhagwanji Lohi and another v. Prakash s/o Sheshrao Lohi and other. 2014(3) Mh.L.J. 453 ↑

10. S. M. Karim v. Mst. Bibi Sakina AIR 1254, 1964 SCR (6) 780 ↑

11. Saraswatibai w/o Ramkrishna Kshirsagar v. Lila w/o Sampatrao Tarhekar 2014 (3) Mh. L.J. 597 ↑

12. Jagnnath Mevari­ v. ­Smt.Chandini Bil, 67 IC 31 ↑

13. The State Bank of Travancore v. Aravindan Kunju Panicker And Ors. AIR 1971 SC 996, (1972) 4 SCC 274 ↑