HISTORICAL BACKGROUND

The concept of adverse possession is historically an old concept of law, which is useful but often criticised concept on the ground that it protects and confers right upon wrongdoers. The concept of adverse possession appeared in the Code of Hammurabi Approximately 2000 years before Chirst Era. Law 30 contained a provision ‘If a Chieftain or a man leaves his house, garden and field… and someone else takes possession of his house, garden and field and uses it for three years; if the first owner returns 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.’

INTRODUCTION

The concept of adverse possession has a root in the aspect that it awards ownership of land to the person who makes the best or highest use of land. The possessor who maintains and improves the land has a more valid claim to the land that the owner who never visits or cares for the land and uses it, is of no utility.

Webster Law dictionary defines adverse possession as actual possession of another’s real property that is open, hostile, exclusive, continuous, adverse to the claim of the owner, often under a claim of right or color of title, and that may give rise to title in the possessor if carried out for a specific statutory period.

If a person holds a land for more than 12 years with the knowledge of true owner but without his permission and is in continuous possession of the said land acquires the title in respect of said land inspite of not being and owner. This concept is accepted and admitted by Court of law as ‘Law respect possession’. It was observed in Radhamoni Debi v. The Collector of Khulna & Ors.1 that to constitute a possessory title by adverse possession, the possession required to be proved must be adequate in continuity in publicity, and in the extent to show for a period of 12 years.
1(1900) ILR 27 Cal. 943

It is observed by Hon’ble Apex Court in Karnataka Board of Wakq v. Government of India2  that, in the eye of law, an owner would be deemed to be in possession of the 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 the true owner.

As observed by the Apex Court in State of Haryana v. Mahesh Kumar & Ors.3 the adverse possession confers negative and consequential right effected only as somebody else’s positive right to access the court is barred by operation of law. Right of the paper owner is extinguished and that competing rights evolve in favour of adverse possessor as he cared for the land, developed it as against the owner of the property who had ignored the property. The Apex Court in P. T. Munichikkanna Reddy v. Revamma4 observed that to understand the true nature of adverse possession, Fair weather v. St. Marylebone Property Co. Ltd. (1962) 2 All ER 288 (HL) can be considered where the House of Lords referring to Taylor v. Twinberrow (1930) 2 K.B. 16 termed adverse possession as a negative and consequential right effected only because somebody else’s positive right to access the court is barred by operation of law.

ACT REGULATING CONCEPT OF ADVERSE POSSESSION

The Statute does not define adverse possession, it is a common-law concept, the period of which has been prescribed statutorily under the law of limitation. The concept of adverse possession is not defined under Law of Limitation nor Law contains a provision that the plaintiff cannot sue on basis of adverse possession.

The Limitation Act5 defines and specifies the period of limitation of suits and other proceeding and for purposes connected therewith. It deals only with limitation to sue and extinguishment of rights. Section 27 of the Act speaks about ‘Extinguishment of right to property’ i.e. if a person fails to institute a suit for recovery of possession within time specified in the Act then his right to recover possession of that property shall extinguish. When the original owner extinguishes his right on the said property the possessory owner steps in the shoe of original owner. This is where the concept and origin of adverse possession is found.
2(2004) 10 SCC 779
3(2011) 10 SCC 404
4(2007) 6 SCC 59
5Act No. XXXVI OF 1963 hereinafter referred to as ‘the Act’

This concept is further clarified in Article 64 and 65 of the Act. Under Article 64 of Limitation Act suit can be filed based on the possessory title. Law never intends a person who has perfected title to be deprived of filing suit, under Article 65 to recover possession and to render him remediless. The suit can be filed by a person who has perfected his title by adverse possession to question alienation and attempt of dispossession. Both the Article 64 and 65 be read with Section 27 of Act.

It is settled position of law laid down by the Privy Council in Perry v. Clissold6 that ‘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 Limitations applicable to the case, his right is forever extinguished and the possessory owner acquires a absolute title.’ The above statement was quoted with the approval of Apex Court in Nair Service Society Ltd. v. K. C. Alexander7 and it was held that if rightful owner does not commence an action to take possession within the period of limitation, his rights are lost and person in possession acquires an absolute title.

REQUIREMENTS TO PLEA ADVERSE POSSESSION

The person claiming adverse possession on property of other must show that such possession is open, hostile, exclusive, continuous, adverse to the claim of the owner.

The law with regard to perfecting title by Adverse possession is well settled. The possessor must adverted to the ordinary classical requirement – that it should be nec vi, nec clam and nec precario – that is the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor as observed in decision of Apex Court in P. Lakshmi Reddy v. L. Lakshmi Reddy8, it was also observed therein 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 required animus.
61907 AC 73 (PC)
7AIR 1968 SC 1165
8AIR 1957 SC 314

It was observed by Hidayatullah J. (as he then was) in S. M. Karim v. Bibi Sakina9  by that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. The same was accepted and followed by Coordinate bench of this Apex Court in Balkrishan v. Satyaprakash & Ors.10 The court laid down that the law concerning adverse possession has to prove three ‘neck’ – nec vi, nec clam and nec precario.

Similarly, the Hon’ble Apex Court in the matter of Parsinni (Dead) By LRs. & Ors v. Sukhi & Ors.11 laid the test for proving adverse possession. Possession is prima facie evidence of title. Burden of proof lies on the party claiming adverse possession. He must plead and prove that his possession must be nec vi, nec clam and nec precario i.e. 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.

EXCEPTION TO PLEA OF ADVERSE POSSESSION

There are few exceptions too for plea of adverse possession. Long possession was not necessarily an adverse possession and the prayer clause is not a substitute for a plea of adverse possession. Adverse possession cannot be decreed in a title which is not pleaded. Animus possidendi under hostile colour of title is required Trespasser’s long possession is not synonym with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time.

In Pannalal Bhagirath Marwadi v. Bhaiyalal Brindaban Pardeshi Teli12, it has been observed that in-between two trespassers, one who is wrongly dispossessed by the other trespasser, can sue and recover possession. A person in possession cannot be dispossessed otherwise than in due course of law and can sue for injunction for protecting the possession as observed in Krishna Ram Mahale (dead) by LRs v. Shobha Venkat Rao13 and State of U. P. v. Maharaja Dharmander Prasad Singh14.
9[1964] 6 SCR 780
10[2001] (2) SCC 498
11(1993) 4 SCC 375
12AIR 1937 Nagpur 281

The plea of adverse possession cannot be taken on land reserved for public utility such as road/ hospital etc. The right based on adverse possession would not accrue. Likewise, it is held by the Hon’ble Apex Court in Vidya Devi v. The State of Himachal Pradesh & Ors.15 that State cannot be permitted to perfect the title by Adverse Possession to grab the property of its own citizens.

The plea of adverse possession is different from permissive possession and cause of action arises to plaintiff only when defendant sets up adverse title as held by Hon’ble Bombay High Court in Balasaheb Govind Basugade v. Rajendra Shivaji Kumthekar16.

The Hon’ble Apex Court in its Constitutional Bench in M Siddiq (D) through LRs. v. Mahant Suresh Das & Ors17 have held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. Earlier also in Annakili v. Vedanayagam18 the Apex Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act. The same is considered and confirmed by the Hon’ble Apex Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) Through LRs & Ors.19 thereby holding that long continuous possession by itself cannot be termed as adverse possession and the question of adverse possession without admitting the title of the real owner is not tenable.

The Hon’ble Apex in its decision in Nand Ram (D) through LRs & Ors. v. Jagdish Prasad (D) Through Lrs.20 held that the Tenant can plead adverse possession against landlord only if he is able to prove continuous, open and hostile possession to the knowledge of true owner for a continuous period 12 years after surrendering possession as Tenant and asserting hostile possession.
13(1989) 4 SCC 131
14(1989) 2 SCC 505
15Order dated 08/01/2020 in Civil Appeal Nos. 60-61 of 2020
16(2019) SCC OnLine Bom 5608
17(2019) SCC OnLine SC 1440
18(2007) 14 SCC 308
19(2020) SCC OnLine SC 37
20Order dated 19/03/2020 in Civil Appeal N0. 9918 of 2011

CONFLICTING VIEW OF HON’BLE APEX COURT ON PLEA OF ADVERSE POSSESSION

The Hon’ble Supreme court of India in Gurudwara Sahab v. Gram Panchayat Village Sirthala21 referring to the decision of Punjab and Haryana High Court in Gurudwara Sahib Sannauli v. State of Punjab22,  opined that no declaration of title can be sought by a plaintiff on the basis of adverse possession in as much as adverse possession can be used as a shield by a defendant and not as a sword by a plaintiff. The Hon’ble Apex Court while deciding the question gave only reason by simply observing that there is “no quarrel” with the proposition to the extent that suit cannot be based by the plaintiff on adverse possession. Thus, this point was not contested in Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) when this Court expressed said opinion.

The decision of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) has been relied upon in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj23 and Dharampal (Dead) through LRs v. Punjab Wakf Board24  in both the decision of State of Uttarakhand (supra) and Dharampal (supra) there is no discussion on the aspect whether the plaintiff can later take the plea of adverse possession. The proposition was not contested and earlier binding decisions were also not placed for consideration of the Court.

There was no such decision before the aforesaid decision of the Hon’ble Apex Court holding that the suit cannot be filed by a plaintiff based on adverse possession. And hence the matter was referred to full bench to examine and interpret the law on this issue.

The question of law involved in the matter of Ravinder Grewal & Ors. v. Manjit Kaur & Ors.25 was, whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of Limitation Act for Declaration of title and for a permanent injunction seeking the protection of his possession thereby restraining the defendant from interfering in the possession or for restoration of possession in case of illegal dispossession by a defendant whose title has been extinguished by virtue of the plaintiff remaining in the adverse possession or in case of dispossession by some other person. The Hon’ble Apex Court has answered the said question in positive holding that plea of adverse possession can be used as sword as well as shield considering the Article 64 and Article 65 of the Limitation Act.
21(2014) 1 SCC 669
22(2009) 154 PLR 756
23(2017) 9 SCC 579
24(2018) 11 SCC 449
25(2019) 8 SCC 729

The law never held that plea of adverse possession cannot be taken by plaintiff. The large number of decisions of the Hon’ble Apex Court and various other decisions of Privy Council, High Courts and of English Courts which have been discussed by Hon’ble Apex Court and observations made in Halsbury laws based on various decisions indicate that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65. There is no bar under Article 65 or any if the provisions of the Act as against a plaintiff who has perfected his title by virtue of adverse possession to sue to evict a person in possession acquires absolute tithe and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing a suit under Article 65 of the Act.

Hence the decision of Gurudwara Sahib v. Gram Panchayat, Sirthala (Supra) and of Punjab & Haryana High Court cannot be said to be laying down the correct law. More so because of various decision of the Hon’ble Apex Court to the contrary.

The Apex Court have earlier observed that the plea of plaintiff filing a suit of the basis of adverse possession. A Three-Judge Bench decision in Sarangadeva Periya Matam & Anr. v. Ramaswami Gondar (Dead) by LRs.26 of the Apex Court in which the decision of Privy Council in Musumut Chundrabullee Debia v. Luchea Debia Chowdrain27 held that Plaintiff was in possession of the suit land until January 1950 when the ‘mutt’ obtained possession of the land. On February 18, 1954, plaintiff instituted the suit against the ‘mutt’ for “recovery of possession” of the suit land on the basis on an acquisition of title to land by way of “adverse possession” and held that the plaintiff acquired the title by his adverse possession and was entitled to recover the possession.
26AIR 1966 SC 1603
271865 SCC Online PC 7

The Hon’ble Apex court while settling the issue raised with regard to plea of adverse possession in Ravinder Grewal & Ors. v. Manjit Kaur & Ors. (supra) has held that person holding possessory title i.e. title by Adverse Possession can use the same as ‘sword’ as the Plaintiff and also as ‘shield’ as Defendant within ken of Article 65 of the Limitation Act, 1963 thereby overruled the decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (Dead) through LRs v. Punjab Wakf Board (supra) as they cannot be said to be laying down the law correctly. The Apex court opined that Plea of Adverse Possession can be taken by Plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff.

CONCLUSION

In view of the above and considering various Judgements and decision of Hon’ble Apex Court, the question whether possession is adverse or not is often one of simple fact but it may also be a conclusion of law or a mixed question of law and fact. The concept of adverse possession and its applicability can be seen in Article 64 and 65 of the Limitation Act. Possession is the root of title and is right like the property. Once a person acquires right, title or interest in property even by adverse possession same can be used as sword by the Plaintiff in view of Article 64 of the Limitation Act and it can be used as shield by the Defendant within ken of Article 65 the Limitation Act.

There are certain limitations such as adverse possession cannot be decreed on a title which is not pleaded. Trespasser’s long possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. Mere long possession also does not mean adverse possession. Also, it will not apply to property dedicated to public use and no rights can accrue by adverse possession on public property.

Therefore, 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 owner.  Thus, plea of acquisition of title by adverse possession can be taken by Plaintiff under Article 65 of the Limitation Act and there is no bar under Limitation Act, 1963 to sue in case of infringement of any rights of the Plaintiff.

Priyanka Gharge, Jr. Associate
Advocates & Solicitors
Tel: (022) 2267 4729
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