SUIT FOR ADVERSE POSSESSION

Submitted by:

Shreya Shankar

Roll No. 1762

B.A., LL.B (Hons.)

Submitted to:

Prof. Dr. B. Ravi. Narayan Sarma

Associate Professor (Law)

A research submitted in fulfilment of the course Drafting, pleading and conveyancing for
attaining the degree of

B.A., LL.B (Hons.)

April , 2021

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya nagar, Mithapur, Patna (800001)
 ACKNOWLEDGEMENT

First and foremost I would like to thank my faculty Prof. Dr. B. Ravi. Narayan Sarma for
assigning me this topic for my project and also for providing me with his valuable guidance
as and when required.

A debt of gratitude to all those who have help me put together this project successfully , my
friends who have provided me with sources of research material throughout this projects and
have helped me in my moments of doubts.

My parents who have been a constant source of immense support without which this project
wouldn’t have seen the light of the day. Finally a note of thanks to all those who have been
associated with the project in some way or the other.
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A., L.L.B (Hons.) Project entitled “SUIT
FOR ADVERSE POSSESSION” submitted at Chanakya National Law University is an
authentic record of my work carried out under the supervision of Assistant Professor Dr.B.
R.N. Sarma. I have not submitted this work elsewhere for any other degree diploma. I am
fully responsible for the contents of my Project.

SIGNATURE OF CANDIDATE:

NAME OF CANDIDATE: SHREYA SHANKAR

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

TABLE OF CONTENTS
Acknowledgement ………………………………………………………………2

Declaration by the candidate……………………………………………………3

Chapter-1 Introduction………………………………………………………..

Objectives ………………………………………………………………………

Hypothesis ………………………………………………………………………

Research methodology ……………………………………………………………

Sources of data …………………………………………………………………….

Limitation of project………………………………………………………………..

Chapterisation ……………………………………………………………………..

Chapter-2 Concept of adverse possession and limitation Act…………………….

Chapter-3 Essentials of adverse possession…………………………………………..

Chapter-4 Plea of adverse possession………………………………………………….

Chapter-5 Acts not amounting to adverse possession…………………………………..

Chapter-6 Legal aspects on the claim of adverse possession……………………………

Chapter-7 Conclusions and suggestions…………………………………………………

Bibliography………………………………………………………………………………. 26
 CHAPTER-1

INTRODUCTION

The term adverse possession refers to a legal principle that grants title to someone who
resides on or is in possession of another person's land. The property's title is granted to the
possessor as long as certain conditions are met including whether they infringe on the rights
of the actual owner and whether they are in continuous possession of the property. Adverse
possession is sometimes called squatter’s rights, although squatter’s rights are a colloquial
reference to the idea rather than a recorded law.

As mentioned above, adverse possession is a legal situation that occurs when one party is
granted title to another person's property by taking possession over it. This can happen
intentionally or unintentionally with or without the property owner's knowledge.

In cases of intentional adverse possession, a trespasser or squatter—someone who occupies

another person's land illegally—knowingly comes on to another person's land to live on it
and/or take it over. In other cases, adverse possession may be unintentional. For example, a
homeowner may build a fence separating their yard without realizing they've crossed over
and encroached on their neighbor's property line. In either case, the adverse possessor—also
referred to as the disseissor—can lay claim to that property. And if the claimant is successful
in proving adverse possession, they are not required to pay the owner for the land.

The requirements to prove adverse possession tend to vary between jurisdictions. In many
states, proof of payment for the taxes on a property and a deed is essentially required for the
claimant to be successful. Each state has a time period during which the landowner of record
can invalidate the claim at any time. For example, if the state threshold is 20 years and the
landlord paints or pays for other maintenance on the house in question in the 19th year, then
the claimant will have a difficult time proving adverse possession. That said, landowners are
advised to remove the possibility of adverse possession as soon as possible by having signed
agreements for any use of an owned property.

To successfully claim land under adverse possession, the claimant must demonstrate that his
or her occupation of the land meets the following requirements:
Continuous use: Under this condition, the adverse possessor must show they've been in
continuous possession of the property in question.

A hostile takeover of the property: Although this doesn't mean that the disseissor uses force
to take the land, they must show there is no existing agreement or license from the landowner
such as a written easement, lease, or rent agreement.

Open and notorious possession: This means the disseissor’s possession of the property is
obvious to anyone who observes it.

Actual possession: The possessor actively possesses the property. This may include
maintaining the land and—depending on state law—paying taxes.

Exclusive use: The property is used solely by the disseissor, excluding any others from using
it as well.

Adverse possession has been proposed as a possible solution to discourage abuses of

intellectual property rights like cybersquatting, excessive copyright, and patent trolling.
Applying adverse possession to intellectual property as well as physical property would force
the abusers to put more resources into actively using their portfolio of trademarks, patents,
and so on, rather than just sitting on them and waiting for the actual innovators to step in their
territory.

OBJECTIVES

The objective of this research is to study the Adverse possession as a legal process whereby a
non-owner occupant of a piece of land gains title and ownership of that land after a certain
period of time.

HYPOTHESIS

The researcher tends to presumes that Adverse possession is one of the method for acquiring
title to the real property by possession for a statutory period under certain conditions.
RESEARCH METHODOLOGY

The researcher tends to undertake doctrinal research methodology.

SOURCES OF DATA

Primary sources and secondary sources both are used for completion of this project.

1. The primary sources are –

a. Legislative materials such as Indian Penal code, Constitution, universal
declaration of human rights
b. Decisional materials (Judgements of the courts)
c. The juristic writings (the opinions expressed by the imminent jurists and
different commissions)
2. Secondary sources are-
a. Books, magazine, journals etc.

LIMITATIONS OF THE RESEARCH

The most important limitation for this project is the accumulation of relevant data. Also the
undertaking of non-doctrinal research or the qualitative research is not possible due limitation
of time and place. The financial support needed for the undertaking of the ground work and
other works for the project is also difficult to arrange. These are the prime hindrances to the
completion of the project.

CHAPTERISATION

1. Introduction.
2. Concept of adverse possession and limitation Act.
3. Essentials of adverse possession.
4. Plea of adverse possession.
5. Acts not amounting to adverse possession.
6. Legal aspects on the claim of adverse possession.
7. Conclusions and suggestions.
 Chapter-2
CONCEPT OF ADVERSE POSSESSION AND LIMITATION ACT.

The concept of adverse possession of land traces back to the Code of Hammurabi which
contained 282 rules including Rule 30 which 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.”1

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 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.

The concept of adverse possession has been well settled by the judicial committee of the
Privy Council in 1907 in Perry v Clissold2 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

1
https://www.latestlaws.com/articles/an-overview-on-the-law-of-adverse possession/#:~:text=Adverse
%20possession%20is%20a%20hostile,%2C%20peaceful%2C%20open%20and%20continuous
2
(1907) A.C. 73
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 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 3.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.

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 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
3
AIR 1968 SC 1165
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 become adverse to the true owner and not otherwise.

In the case of Karnataka Board of Wakf- Vs.- GOI4, it has been observed by Hon'ble Apex
Court that, 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 rights over it and the person having title omits or neglects to take legal
action against such person for years together.

In the case of Amrendra Pratap Singh vs. Tej Bahadur Prajapati 5, it has been held that, the
process of acquisition of title by adverse possession springs into action essentially by default
or inaction of the owner. Thus, a method of gaining legal title to real property by the actual,
open, hostile, and continuous possession of it to the exclusion of its true owner for the period
prescribed by law is a adverse possession. In order to elucidate the concept of adverse
possession, we have to consider Art 64 and 65 of the limitation Act.

Section 27 of Limitation Act is an exception to the general principle of law of limitation and
origin of concept of Adverse possession. It reads as, if a person fails to file suit for recovery
of possession, within a period of limitation, his right to recover the possession of that
property also extinguishes. If such situation occurs, a true owner extinguishes his ownership
over the property. But at the same time property can not left owner less. It must be in name of
any 2 other person or any other person must be entitled to have right over it. This situation
gives origin to the concept of adverse possession. If any person possesses any property in
adverse to the interest of true owner and true owner fails to file a suit for recovery of
possession within a period of limitation, then the person in possession becomes owner of
property by way of adverse possession.

Chapter-3
ESSENTIALS OF ADVERSE POSSESSION

4
( 2004) 10 SCC 779
5
, (2004) 10 SCC 65
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 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 necessary elements of adverse possession are discussed in detail as infra -

1. Property :- There must be certain property, which may be movable or immovable.

2. Nature of possession required over the property to constitute adverse
possession :- In order to constitute adverse possession, there must be actual
possession of a person claiming as of right by himself or by persons deriving title
from him. It is not sufficient to show that some acts of possession have been done.
The possession required must be adequate in continuity, in publicity and in extent to
show that it is adverse to the owner. In other words the possession must be actual,
visible, exclusive, hostile and continued during the time necessary to create a bar
under the statute of limitation.
3. Possession must be continuous:- To constitute adverse possession, possession must
be continuous. But it is not necessary to establish possession of every moment of the
requisite period.
 4. Possession must be with intention of ouster of the real owner :- Animus
possidendi necessary. Possession does not become adverse when the intention to hold
adversely is wanting. Person holding property by way of adverse possession must
publish his intention to deny right of the real owner. His intention of adverse
possession must be within notice, knowledge of the real owner. If there are
circumstances showing open and notorious act of taking possession, knowledge may
be presumed. Where the assertion of right is secret and not open, the possession can
not be held to be adverse. In the case of Bhimrao Dnyanoba Patil Vs State of
Maharashtra6, it has been held that, unless enjoyment of the property is accompanied
by adverse animus, mere possession for long period even over a statutory period,
would not be sufficient to mature the title to the property by adverse possession.
5. Dispossession of the true owner :- In reference to this point the term dispossession
and discontinuance of possession are relevant. In dispossession a person comes in, an
drives out another from possession. In discontinuance of possession, the person in
possession goes out and is followed into possession by others. To constitute
discontinuance of possession, there must be dereliction by the person who has right
and actual possession by another, whether adverse or not.
6. Possession of another essential for dispossession :- ―Dispossession‖ implies the
coming in of a person and driving out of another person from possession.
―Dispossession‖ implies ouster and the essence of ouster is that the person ousting is
in actual possession of the property. The mere finding that the persons are not in
possession of the disputed property does not decide the question, whether there was
dispossession. Dispossession occurs only when a person comes in and drives out
another from possession.

Adverse possession of the land is the process by which title to another’s land is acquired
without his permission. Adverse Possession is a possession which is opposed to once interest
of the real owner of the property. It is possession in denial of the title of the true owner.

a. Actual :- Adverse possession consists of actual occupation of the land with the
intent to keep it solely for oneself. Merely claiming the land or paying taxes on
it, without actually possessing it, is insufficient. Entry on the land, whether
legal or not, is essential. A trespass may commence adverse possession, but
6
, 2003 (1) Bom. L.R. 322; 2003(1) All MR 565 2003 (2) LJ Soft 131
 there must be more than temporary use of the property by a trespasser for
adverse possession to be established. Physical acts must show that the
possessor is exercising the dominion over the land that an average owner of
similar property would exercise. Ordinary use of the property—for example,
planting and harvesting crops or cutting and selling timber—indicates actual
possession. In some states acts that constitute actual possession are found in
statute.
b. Open and Notorious :- An adverse possessor must possess land openly for the
entire world to see, as a true owner would. Secretly occupying another’s lands
does not give the occupant any legal rights. Clearing, fencing, cultivating, or
improving the land demonstrates open and notorious possession, while actual
residence on the land is the most open and notorious possession of all. The
owner must have actual knowledge of the adverse use, or the claimant’s
possession must be so notorious that it is generally known by the public or the
people in the neighborhood. The notoriety of the possession puts the owner on
notice that the land will be lost unless he or she seeks recover possession of it
within a certain time.
c. Exclusive :- Adverse possession will not ripen into title unless the claimant has
had exclusive possession of the land. Exclusive possession means sole physical
occupancy. The claimant must hold the property as his or her own, in
opposition to the claims of all others. Physical improvement of the land, as by
the construction of fences or houses, is evidence of exclusive possession.
d. Hostile :- Possession must be hostile, sometimes called adverse, if title is to
mature from adverse possession. Hostile possession means that the claimant
must occupy the land in opposition to the true owner’s rights. One type of
hostile possession occurs when the claimant enters and remains on land under
color of title. Color of title is the appearance of title as a result of a deed that
seems by its language to give the claimant valid title but, in fact, does not
because some aspect of it is defective. If a person, for example, was suffering
from a legal disability at the time he or she executed a deed, the grante claimant
does not receive actual title. But the grantee-claimant does have color of title
because it would appear to anyone reading the deed that good title had been
conveyed. If a claimant possesses the land in the manner required by law for
 the full statutory period, his or her color of title will become actual title as a
result of adverse possession.
e. Continuous & Uninterrupted :– All elements of adverse possession must be
met at all times through the statutory period in order for a claim to be
successful. The statutory period, or ―statute of limitations‖, is the amount of
time the claimant must hold the land in order to successfully claim ―adverse
possession‖.
 Chapter-4
PLEA OF ADVERSE POSSESSION

Adverse possession is a method, rooted in common law, of obtaining title to land through use.
The common law rules for adverse possession have been codified under both federal and state
statutes. A typical statute allows a person to obtain title to land from the actual owner simply
by using the land. The use must be open for all to see. An example of openly using land for
the purposes of adverse possession would be if your neighbour built a fence on your land
with the intention of taking the property, paid your property taxes, and though you knew
about it you did nothing. If this continued for a period of time set by state law, your neighbor
may be able to claim this property as his/her own. The theory is that by not disputing your
neighbor’s use of your property through a lawsuit, you, as the actual owner have abandoned
your rights to the property. Gaining title to land through adverse possession requires strict
compliance with the law, and can have dramatic impact upon land ownership rights. The plea
of adverse possession is mixed question of law and fact. It is well settled law that before a
party can succeed in establishing title on the basis of adverse possession, a plea to that effect
must be specifically raised. It is observed by Hon'ble Apex court that, ― It would be
imperative that one who claims possession must give all such details as enumerated
hereunder. They are only illustrative and not exhaustive.

a. who is or are the owner or owners of the property;

b. title of the property;
c. who is in possession of the title documents
d. identity of the claimant or claimants to possession;
e. the date of entry into possession;
f. how he came into possession - whether he purchased the property or inherited or got
the same in gift or by any other method;
g. in case he purchased the property, what is the consideration; if he has taken it on rent,
how much is the rent, license fee or lease amount;
h. if taken on rent, license fee or lease - then insist on rent deed, license deed or lease
deed;
 i. who are the persons in possession/occupation or otherwise living with him, in what
capacity; as family members, friends or servants etc.;
j. subsequent conduct, i.e., any event which might have extinguished his entitlement to
k. or caused shift therein; and
l. basis of his claim that not to deliver possession but continue in possession.

Mere long possession7of defendant for a period of more than 12 years without intention to
possess the suit land adversely to the title of the plaintiff and to latter's knowledge cannot
result in acquisition of title by the defendant to the encroached suit land. A possession is
adverse only if in fact one holds possession by denying title of the lessor or by showing
hostility by act or words or in cases of trespassers as the case may be as against lessor or
other owner of the property in question.

Recently, in the case of Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan and
others, Hon'ble Supreme Court observed thus:

"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.
We fail to comprehend why the law should place premium on dishonesty by legitimizing
possession of a rank trespasser and compelling the owner to loose its possession only because
of his inaction in taking back the possession within limitation.

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

7
A.I.R. 2008(41) SCW 6996.
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 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 Pinjari8 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
8
(2017) 13 SCC 705
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 9. 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’ 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.

m.

9
(2009) 13 SCC 229
 Chapter-5

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 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 Kumar10, 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 Lrs11. 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.

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 Lal (deceased)
through his LRs. Kachru & Ors. v Mirza Abdul Gaffar & Anr 12 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 &
Ors13 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

10
(1994) 6 SCC 591
11
2018 (10) SCJ 533
12
(1996) 1 SCC 639
13
(1995) 4 SCC 496
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 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 & Ors14 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.

14
(2020) 2 SCC 569
 Chapter-6
LEGAL ASPECTS ON THE CLAIM OF 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 15 deals with this aspect of nature and acts
amounting to adverse possession. The 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 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 16 and
few others.

15
(2004) 10 SCC 779
16
AIR 1964 SC 1254
The Hon’ble Supreme Court in P.T. Munichikkanna Reddy & Others v Revamma & Ors17
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-pronged enquiry is required:

 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.

 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.18 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.

It is very important to know the dicta observed by the Privy Council in Secretary of State for
India v. Debendra Lal Khan19. In this case, it was observed that “the ordinary classical
requirement of adverse possession is that it should be “nec vi nec clam, nec precario” and the
possession required must be adequate in continuity in publicity and in extent to show that
possession is adverse to the competitor”.

In Cheedella Padmavathi’s case,20 it was held that a person pleading adverse possession has
no equities in his favour, since he is trying to defeat the rights of the true owner, thus it is for
him to clearly plead and establish all facts necessary for adverse possession. A Person who
claims adverse possession should show:

17
(2007) 6 SCC 59
18
2020 SCC Online SC 37
19
(28)AIR 1934 PC 23
20
2015 (5) ALT 634
 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.

Effect of claim of adverse possession relating to the partition of property under Hindu law is
discussed in Mettubandi (died) per L.Rs Vs. T.Lakshmamma and others 21, In this case, it was
observed that when the plaintiff failed to prove that he and his brother contributed money for
the purchase of schedule property and when it is in the name of his brother and after him, in
the name of his L.Rs in the records and in their possession and enjoyment, the property is not
liable for partition as plaintiff failed to initiate any legal action in time and as L.Rs of his
brother have also perfected their title to property by adverse possession.

The law is well settled that when a person acquires title by adverse possession and the real
owners fail to recover possession from such occupant of the property within the statutory
period, the right of the owners to such property stands extinguished at the determination of
the period limited to owners for instituting a suit for possession of the property. therefore, this
section of law of limitation not only bars the remedy of the real owners but also extinguishes
their title/right to the property.

21
2016 (4) ALT Page 1.
 Chapter-7
CONCLUSIONS AND SUGGESTIONS

We live in a society where from time immemorial a large group of people has encroached for
their livelihood. For their survival, these people have acquired land and built their houses for
themselves and stayed there for a long time period with the intention of gaining ownership of
that land.

Adverse possession is a one of the method for acquiring title to the real property by
possession for a statutory period under certain conditions. The said period is governed by
statute. Under this doctrine the person may establish his ownership against the true owner
after the fulfillment of all legal requirements. The owner of the property must have actual
knowledge of adverse possession. The word continuity means regular uninterrupted of the
occupancy land. As per the Article 6 and 65 of the Limitation Act, the prescribed period is 12
years and the prescribed period in case of Government is 30 years. The starting point of
limitation begins from the expression of hostile animus amounting to denial of title of the real
owner to his knowledge. The onus is lies on the party to set up the title on the basis of
adverse possession. Presumption and probabilities cannot be substituted for the evidence.

By abolishing this doctrine those who have taken care of this land would become homeless as
there is a case who has acquired land and settled without the knowledge of the real owners.
This doctrine acknowledges the right of both owner and occupier by limiting the time period
under the Limitation Act, 1963. There is also another argument that the property or who is
not physically present in the country i.e., NRIs their property could be easily occupied by
relatives or others.

There are so many other instances where the occupier has taken the plea of adverse
possession but with every judgment, the definition of this doctrine has changed. The intention
of gaining title over the land is the main element of this doctrine.
 BIBLIOGRAPHY

BOOKS -
• Edward Burtenshaw Sugden.(2003) A Handy Book on Property Law in a
Series of Letters
• V Krishna Ananth (2008) The Indian Constitution and Social Revolution:
Right to Property since Independence (SAGE Series in Modern Indian History)
• Dr. Poonam Pradhan Saxena (2011) Property Law LexisNexis Publication.
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