Adverse Possession

People are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorized by law.”

(State Of Haryana vs Mukesh Kumar & Ors, Civil Appeal No. 28034 of 2011 of Supreme Court)

The claim to rights and interests qua immovable property on the basis of possession is acknowledged in all legal systems. Uninterrupted and uncontested possession for a specified period, adverse to the rights and interests of true owner, is considered to be one of the legally recognized modes of acquisition of ownership. The prescription of periods of limitations for recovering possession or for negation of the rights and interests of true owner is the core and essence of the law of adverse possession.

In Karnataka Board of Wakf vs Government of India & ors, Civil (Appeal) No. 16899 of 1996, the Supreme Court stated following:

“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.” 

The statutory period is derived through Article 65, Schedule I of the Limitation Act, 1963 prescribing a limitation of 12 years for a suit for possession of immovable property or any interest therein based on title. It is important to note that the starting point of limitation of 12 years is counted from the point of time “when the possession of the defendants becomes adverse to the plaintiff”. Article 65 is an independent Article applicable to all suits for possession of immovable property based on title i.e., proprietary title as distinct from possessory title. Article 64 governs suits for possession based on possessory right. Article 65 as well as Article 64 read with Section 27 of the Limitation Act, 1963, which bears the heading – “Extinguishment of right to property”. It lays down:

“At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.”

As far as the Government (Central or State) property is concerned, the period of limitation for any suit (except a suit before the Supreme Court) is 30 years and the starting point of limitation is the same as in the case of a suit by a private person (vide Article 112, Schedule I of Limitation Act, 1963).

In Culley v Doe, (1840) 11 A & E 1008, following was held:

At common law, Daniel Taylerson had a prima-facie right to devise his interest, inasmuch as tenants in common have the same right, under the statute 34 & [1022] 35 H. 8, c. 5, as persons legally seised. And, as his possession, and those under whom he claims, was also the possession of the Culley family, there was nothing to prevent his devising the estate, but that, after being out of the participation of the receipt of the rents and profits of the estate for above thirty years, an ouster might be presumed. But length of time alone is not an ouster, till so found by the jury; and, as there has been none found, we could not intend it.

But suppose an ouster had been found: unless by that it was meant that a disseisin or other tortious ouster of the freehold had taken place, it would not reduce it to an undeviseable right of entry.”

In Radhamoni Debi vs The Collector of Khulna and ors., (1900) ILR 27 Cal 943, the Calcutta High Court stated following with regard to ‘Adverse Possession’:

It is necessary to remember that the onus is on the appellant and that what she has to make out is possession adverse to the competitor. That persons deriving from her any right they had have done acts of possession during the twelve years in controversy may be conceded and is indeed evidenced by the dispute which ended in the Magistrate’s order of 1885. But the possession required must be adequate in continuity, in publicity, and in extent, to show that it is possession adverse to the competitor. The appellant does not present a case of possession for the twelve years in dispute, which has all or any of these qualities. The best attested cases of possession do not cover the whole period and apply to small portions of the ground. While exhibiting those positive deficiencies, the appellant’s case is moreover confronted by tangible evidence of possession by the respondent which is far superior in quality.”

         (Emphasis Supplied)

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.” 

In Correa v. Appuhamy et al, (1911) 15 NLR 65, the Privy Council held following with regard to coheir in possession:

A co-owner’s possession is in law the possession of his co-owners. It is not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something, equivalent to ouster could bring about that result. 

In the Secretary of State for India in Council vs Debendra Lal Khan, (1934) 36 BOMLR 249, following was held by Bombay High Court:

5. As to what constitutes adverse possession, a subject which formed the topic of some discussion in the case, their Lordships adopt the language of Lord Robertson in delivering the judgment of the Board in Radhamoni Debi v. Collector of Khulna (1900) L.R. 27 I.A. 136 S.C. : 2 Bom L.R. 592, where his Lordship said that (p. 140), “the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.” The classical requirement is that the possession should be nec vi nec clam nec precario…………. It may be added that it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every moment of the requisite period. Though the possession “be not proven to have continued every quarter, month or year, yet ordinary possession will be sufficient ad victoriam caus, albeit it be proponed in the terms of a continual possession, quia probatis extremis prsumuntur media, if the distance be not great.” (Stair’s Institutions of the Law of Scotland, IV, 40, 20). “The fact of possession may be continuous though the several acts of possession are at considerable intervals. How many acts will infer the fact is a question of proof and presumption independent of prescription” (Millar on Prescription, p. 36). The nature of the requisite possession must necessarily vary with the nature of the subject possessed. The possession must be the kind of possession of which the particular subject is susceptible.” 

In N. Varada Pillai vs Jeevarathnammal, (1920) 22 BOMLR 444, the Privy Council held following taking support from Culley v Doe, (1840) 11 A & E 1008:

Generally speaking, one tenant in common cannot maintain an ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant tenant in common, has not been in the participation of the rents and profits for a considerable length of time, find other circumstances concur, the Judge will direct the jury to take into consideration whether they will presume that there has been an ouster : . . . and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety.

In Nair Service Society Ltd vs Rev. Father K. C. Alexander & ors, 1968 SCR (3) 163, the Supreme Court held following:

“The cases of the Judicial Committee are not binding on us. But we approve of the dictum in Perry v. Clissold. No subsequent case has been brought to our notice departing from that view. No doubt, a great controversy exists over the two cases of Doe v. Barnard and Asher v. Whitlock. But it must be taken to be finally resolved by Perry v. Clissold. A similar view has been consistently taken in India and the amendment of the Indian Limitation Act has given approval to the proposition accepted in Perry v. Clissold and may be taken to be declaratory of the law in India.”

In Hemaji Waghaji Jat vs Bhikhabhai Khengarbhai Harijan & ors, Civil Appeal No. 1196 of 2007, criticising the ‘law of Adverse Possession’, the Supreme Court held following:

“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.”

In case of Dagadabai (Dead) By Lrs vs Abbas @ Gulab Rustum Pinjari, Civil Appeal No. 83 0f 2008, the Supreme Court held following:

” 21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.”

In Nanjegowda @ Gowda (D) By Lrs.Anr vs Ramegowda, Civil Appeal No.7089 of 2010, the Supreme Court held following:

“19) In our opinion, the stand taken by the defendants was wholly inconsistent. They first set up a plea of adverse possession but it was rightly held not proved. The defendants, however, did not challenge this finding in the second appeal, which became final. Even otherwise, the plea of adverse possession was wholly misconceived and untenable. It is a settled law that there can be no adverse possession among the members of one family for want of any animus among them over the land belonging to their family.

(Emphasis Supplied)

The moral justification of the law of adverse possession was graphically stated by Justice O.W. Holmes:

“Man, like a tree in the cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can’t be displaced without cutting at his life.”

(Excerpt from a letter written by Oliver Wendell Holmes to William James (April 1, 1907) in “The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters and Judicial Opinions” 417-18 (Max Lerner ed., 1943)

Rajni Sinha

Advocate Bombay High Court



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