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Home / Know the Law / Adverse Possession-...

KNOW THE LAW

Adverse Possession- Sword cum Shield

K Indu Priya 21 May 2020 7:32 PM

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Ingredients to qualify adverse possession

Theory of adverse possession is inherited from the common law concepts which is

approximately about 2000 years old. This has been considered as one of the harsh

facets of law but has been in vogue since time immemorial. The concept of adverse

possession is based on the principle that the possessor who maintains and improves

the land has more valid claim to the land than the owner who never visits or cares for

it. The person claiming adverse possession is required to satisfy three classic

requirements which should co-exist at the same time which are - nec vi, nec clam, nec

precario ie., peaceful, open and continuous. These requirements have been laid down

by the Privy Council as early as 1912 in the case of Corea v. Appuhany and thereafter

have been adopted as standard parameters to determine adverse possession by the

Courts in India.

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There is no statute per se which defines the concept of adverse possession but the

Limitation Act, 1963 provides for the limitation to sue and extinguishment of rights in

this regard. The Act merely prescribes the period of limitation which is 12 years in

case of private lands and 30 years in case of Government lands. The law thus restricts

the right of the owner to recover possession within the fixed period (12/30 as the case

may be) beyond which his right expires. If the owner fails to assert his right within the

fixed period, upon the extinction of his right, another person who had been in

possession all these years acquires prescriptive right. The intention of the statute is

not to punish the owner who fails to assert his right in his property but to protect the

interest of the person who has maintained the property for such time, specified in the

statute. As per Section 27 of the Act, the right to property gets extinguished on the

expiry of period specified for instituting a suit for possession of property and thereby

his right in such property gets extinguished. A person in possession has a

transmissible interest in the property and after the expiration of the stipulated

statutory period it ripens as a right to possession.

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Details to be specified in the pleadings

The person who pleads adverse possession has no equities in his favour. He has to

plead and prove in unequivocal terms the essential ingredients of adverse possession.

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,

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(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

(e) whether his possession was open and undisturbed[1]

Since the person pleading adverse possession is trying to defeat the rights of the true

owner, it is for him to clearly plead and establish all facts necessary to establish his

adverse possession.

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Story
Animus is also an essential aspect to prove adverse possession. The same can be

observed by reference to the judgment of Powell v McFarlane[2] wherein the Court had

held that "if the law is to attribute possession of land to a person who can establish no

paper title to possession, he must be shown to have both factual possession and the

requisite intention to possess". Mere possession does not ripen into possessory title

until possessor holds property adverse to the title of the true owner for the said

purpose.

'Only as a shield':

Earlier the Supreme Court in the year 2014, in Gurudwara Sahab v. Gram Panchayat

Village Sirthala[3] had ruled that the plea of adverse possession can be used only as a

shield by the defendant and not as a sword by the plaintiff. The Court specifically

stated that no declaration can be sought for on the basis of adverse possession as

such a plea can be raised only by the defendant. Therefore it was made clear that

although the possession of a person had ripened into ownership by virtue of adverse

possession, he cannot file a suit seeking for a declaration declaring his title based on

his prescriptive right and he could only use it as a defense. Thus the plea of adverse

possession is available only to the defendant as a defense against the plaintiff. This

legal proposition laid down in 2014 by the Apex Court was relied by the same Court in

State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj[4] and Dharampal (dead)

through LRs v. Punjab Wakf Board[5].

The Supreme Court once again rekindled the most contentious question of whether a

person claiming title by virtue of adverse possession can maintain a suit under Article

65 to Schedule I of Limitation Act, 1963 for declaration of title and for permanent

injunction in order to protect his possession and answered the same in affirmative in

the case of Ravinder Kaur Grewal vs Manjit Kaur and thereby over ruled the

proposition laid down earlier in the case of Gurudwara Sahab v. Gram Panchayat
Village Sirthala and the decision relying on it in State of Uttarakhand v. Mandir Shri

Lakshmi Siddh Maharaj and Dharampal (dead) through LRs v. Punjab Wakf Board.

Present position:

The Supreme Court in the case of Ravinder Kaur Grewal vs Manjit Kaur has elaborated

upon the contour of Article 65 to Schedule I of the Limitation Act, 1963. The Court

interpreted Column III of Article 65 of the Act by stating that there is absolutely no bar

for the plaintiff to file a suit for possession of immovable property or interest thereon

acquired by virtue of adverse possession. The IIIrd column of the Act reads as follows:

'when the possession of the defendant becomes adverse to that of the plaintiff'. The

Court gave an interpretation with a different dimension by stating that the column III

nowhere suggests that plaintiff who has perfected title on the basis of adverse

possession cannot sue to evict a person or protect his possession.

The Court had interpreted "for possession of immovable property or any interest

therein based on title" in the opening part of Article 65 to include title acquired by

plaintiff by way of adverse possession. The Court opined 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 the 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. The Court reiterated that neither possession as trespasser nor long

possession is synonymous to adverse possession. Therefore, it has been laid down in

categorical terms that the plaintiff who has perfected title through adverse

possession can sue and maintain a suit. The Court further ruled that with respect to

encroachment in properties ear marked for public utilities, such rights should not

accrue and an exception must be carved out in the statute with respect to such

properties.

Article 65 of Schedule I of Limitation Act, 1963

Description of suit: Period of Time from which

limitation period begins to run

65. For possession of immovable

property or any interest therein Twelve When the possession

based on title. of the defendant

Years
becomes adverse to
Explanation : For the purposes of
the plaintiff
this article-

• Where the suit is by a

remainderman, a
reversioner (other than a
landlord) or a devisee the
possession of the
defendant shall be deemed
to become adverse only
when the estate of the
remainderman, reversioner
or devisee, as the case may
be, falls into possession;

• Where the suit is by a

Hindu or Muslim entitled to
the possession of
immovable property on the
death of a Hindu or Muslim
female, the possession of
the defendant shall be
deemed to become adverse
only when the female dies;

• Where the suit is by a

purchaser at a sale in
 execution of a decree when
the judgement-debtor was
out of possession at the
date of the sale, the
purchaser shall be deemed
to be a representative of the
judgement- debtor who was
out of possession

Parting remarks:

The Courts in general have been very critical about the concept of adverse

possession. This law is considered to be extremely draconian to the true owner and a

blessing to the dishonest person who has taken possession of the property. The law

impliedly favours the person who clandestinely acquires the property of the true

owner in contravention of the law. The Courts have at several occasions expressed

their disapproval of the law that legitimizes the possession of a rank trespasser

thereby compelling the owner to lose his possession only because of his inaction in

taking back the possession within the period of limitation. The Supreme Court in

Hemaji Waghaji v. Bhikhabhai Khengarbhai Harijan & Ors[6] and State of Haryana v.

Mukesh Kumar[7] severely deprecated the concept of adverse possession and in the

latter case opined that the Parliament must seriously consider at least abolishing "bad

faith" adverse possession, i.e., adverse possession achieved through intentional

trespassing.

The principle of adverse possession sends a wrong message to the society as it

emboldens the acts of rank trespassers and squatters in property. There were also

recommendations from across the spectrum of legal fraternity to increase the

limitation period to 30 and 50 years instead of merely 12 and 30 years respectively.

This long period would not only diminish the suits filed or plea taken based on adverse

possession but also ensure that those who advance such claims are only those who

are intimately connected with the land.

This law has always been frowned upon and considered that it necessarily needed a

re-look as it was archaic in nature. However the recent judgment of the Supreme Court

in Ravinder Kaur Grewal vs Manjit Kaur has put to rest the constant skepticism of the

concept being irrational and illogical. This clarification from the Apex Court in turn is

going to witness a sizable hike in the parties or rather encroachers approaching the

Court to assert their rights. Once, single edged, now a double edged arsenal, one

needs to wait to perceive the repercussions of the latest pronouncement of the

Supreme Court.

(The author is an Advocate practicing at the Madras High Court and may be reached
at indupriya4231@gmail.com)

[1] (2004) 10 SCC 779

[2] (1979) 38 P & CR 452

[3] (2014) 1 SCC 669

[4] (2017) 9 SCC 579

[5] (2018) 11 SCC 449

[6] (2009) 16 SCC 517

[7] (2011) 10 SCC 404