Adverse possession and Its Legal requirements to claim property in India

Definition of Adverse Possession

An alternate word for adverse is unfriendly or hostile, but what does adverse possession mean? The concept of ‘adverse possession is not defined in the Limitation Act, 1963 because it is a negative and consequential right merely based on the negligence of the true owner. In this article, we will understand the true meaning of adverse possession and capture its true essence; we shall also be discussing how it has evolved over the period. Further, we will discuss the concept or logic behind adverse possession from a historical perspective.

The historical concept of adverse possession

The rules of adverse possession go back to the Code of Hammurabi. This Code is a little different from the law of adverse possession, but the same is followed to date.

Suppose a person, as per his wishes, leaves his house or field and some other person possesses the same and owns the property for three years. In that case, the first owner cannot claim his property, but the property shall be given to the person in the current possession of the property.

This law was made certain by the Privy Council in Perry v/s Clissold in the year 1907. It was held in this case that if a person is in possession of the property and is actively taking care of the property without any intervention of the rightful owner, then the person who has possession of the property shall be considered to be the actual owner of the property and will be given absolute title over the property.

To add, the above-said decision was held in the case of Nair Service Society v/s K.C. Alexander. As a result, this rule applies till now and is the founding principle of adverse possession in modern law.

Article 65 (Limitation Act, 1963) states that if a person does not take appropriate steps to acquire his property back from the person in possession within 12 years, his rights get extinguished.

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What are the Legal Requirements for an Adverse Possession Claim to Land

Following are the essentials to claim the plea of adverse possession 

1. The continuous possession of the property must be shown to the public, and the possession so occupied must be adverse to the actual owner. The disposition of the true owner must be wrongful and must be actual, visible, exclusive, hostile and continued over the statutory period.
2. The most critical factors to claim the plea of this possession is the physical fact of exclusive possession and the animus possidendi, i.e., an intention to possess, to hold the property as an owner: in exclusion to the actual owner. It is pertinent to note that this kind of appeal is a mixed question of law and fact and is not a pure question of law. “Animus possidendi” is requisite to claim the plea of adverse possession, which the possessor must have. In case there is no such intention, then the statutory period of prescription does not commence.
3. Further, a person claiming adverse possession based on possession law has to establish that he owns the property fulfilling the other requisites; only then will he be able to defeat the true owner’s rights.
4. Under the law, the possessor of the property shall be deemed to own the property until there is no interruption. It is essential to mention here that even if the actual owner of the property is not in the possession, it will not affect his right over the property. However, his position will be altered if and when the other person takes over his possession and claim his absolute title over the property.

The law concerning acquiring ownership by Adverse possession was observed in P. Lakshmi Reddy v/s L. Lakshmi Reddy. It clearly stated that the possessor of the property must comply with the essential requirement, i.e. it should be nec vi, nec clam and nec precario, which means that the possession must be adequate in continuity, publicity, and to the extent that shows it is possession adverse to the actual owner. Further, it was observed that the adverse possession could not commence unless he acquires the actual possession of the property with the required intention.

Also, in S. M. Karim v/s Bibi Sakina, it was observed by Hidayatullah J. that the plea of adverse possession could be established in case the possession is adequate in continuity, publicity and extent and when the possession becomes adverse to the actual owner. On the same grounds, the Coordinate Bench of the Apex Court in Balkrishan v. Satyaprakash & Ors stated that the law has to prove three ‘neck’ – nec vi, nec clam and nec precario.

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What is the period under which adverse possession can be claimed?

Article 65 of the Limitation Act, 1963 defines the period to claim the plea of adverse possession. It specifies that the period of 12 years is a mandate to claim the same. However, the period of 12 years starts when the possession becomes adverse to the actual owner. For example, X trespasses on the land owned by Y. If X comes back after 12 years to claim the property, then the Court will not entertain the suit in his favour, and there will be a change of property ownership from Y to X.

The Apex Court observed in the Karnataka Board of Wakt vs Government of India case that, “under the law, the owner would be deemed to be in possession of a property as long as there is no interruption.” Section 27 and section 65 (Limitation Act) states that if the true owner does not interfere with the possession of the trespasser within the statutory period, then his right to get back the property will be extinguished.

However, there is a difference when a property is owned by an individual or by the Government. For example, suppose the owner of the property is an individual privately. In that case, the plea of adverse possession can be filed within the period of 12 years (Article 65 of schedule 1), whereas if the owner of the property is Government, then the limit of filing the case is within 30 years as per Article 112 of schedule 1 of the Limitation Act.

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Acts that do not constitute Adverse Possession

There are three cases in which the person cannot take the plea of adverse possession.

1. Firstly, the plea cannot be taken where permission is given to the person. This situation has been affirmed by the Apex Court in the Thakur Kishan Singh v Arvind Kumar case. Herein, it has been held that a permissive possession to become adverse must be established. Evidence must also be shown to prove the hostile animus and, finally, that the possession so taken was adverse to the knowledge of the actual owner.
   Also, irrespective of the length of time, merely giving the possession does not convert the permissive possession into adverse possession. Apex Court affirmed this situation in Ram Nagina Rai v Deo Kumar Rai (D) By Lrs. However, it should also be noted that to claim the plea of adverse possession; one can certainly take this ground for possession when such permissive possession becomes hostile and adverse to the actual owner.
2. Secondly, when the possession of the property is given by a person as part performance to the other person, considering the agreement as provided underthe Transfer of Property Act, 1882. The Apex Court affirmed the same in the case of Mohan Lal (deceased) through his LRs. Kachru & Ors. v Mirza Abdul Gaffar & Anr. The Court said that a person claiming possession of a property under Section 53A of Transfer of Property Act, 1882, is barred from claiming possession simultaneously by taking the plea of adverse possession. Both the pleas are inconsistent; a person can only take one plea to justify his claim.
3. Thirdly, when a person is the co-owner of the land in respect to which he claims ownership, he cannot take the plea. This is because a co-owner of a property is only acting as a representative on behalf of all the other co-owners and cannot claim that he is the absolute owner of the property by taking the plea of adverse possession.

However, there lies an exception to this case as well- Vidya Devi @ Vidya Vati (Dead)By LRs v/s Prem Prakash & Ors. In this case, it was stated and accurately held by the Apex Court that a co-owner can take a plea of adverse possession if he can prove that all the co-owners are ousted from the property along with the other requisites to establish adverse possession. As per this judgment, three elements are mandatory to claim the plea of dismissal of the co-owner. These are as follows:

• declaration of hostile animus
• continuous and uninterrupted possession of the person pleading ouster and,
• exercise the right of absolute ownership freely and openly, which must be in the knowledge of other co-owners.

In Vidya Devi v State of Himachal Pradesh & Ors., the Hon’ble Supreme Court held that the claim of adverse possession could not be pleaded while justifying the State’s forcible acquisition of private property without following the legal procedures.

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Conflicting View of Apex Court on Adverse Possession

The Hon’ble Supreme Court, in the way of referring to the judgment of Punjab and Haryana High Court in the matter of Gurudwara Sahib Sannauli v. the State of Punjab, orated that a plaintiff can file no declaration of title based on adverse possession law as it can be used both as a shield by a defendant and as a sword by a plaintiff. The Hon’ble Apex Court gave this decision by observing that there would be “no quarrel” as to the proposition to the extent that the case cannot be based on the concept of adverse possession by or on behalf of the Plaintiff. As a result, the said point was not questioned in Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) when the Court articulated the opinion.

The decision in Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) has also been appreciated in the cases of the State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj & Dharampal (Dead) through LRs v. Punjab Wakf Board. In both the above decisions of the State of Uttarakhand (supra) and Dharampal (supra), no discussion was done whether the Plaintiff can take the claim of adverse possession later. Resultantly, the proposition was not contested, and the decisions that were binding earlier were considered.

However, no such decision was made before the Hon’ble Supreme Court’s judgments that a plaintiff cannot file the legal suit based on adverse possession. Resulting this, the matter was referred to a full bench to examine and interpret the law on the said issues.

In the matter of Ravinder Grewal & Ors. v. Manjit Kaur & Ors., the question of law involved was whether a suit under Article 65 of the Limitation Act for Declaration of title and a permanent injunction can be maintained by a person who is claiming the title under adverse possession and can he maintain a suit seeking the protection of his possession restraining the other person from interfering in the possession or for restoring the possession in case of wrongful or unlawful dispossession by the person in possession of the property, whose title has been extinguished by virtue of the Plaintiff left in the adverse possession or the case of dispossession by some third person.

The Hon’ble Apex Court answered the above query in positive. Accordingly, it has been held that the plea of adverse possession can be used both as a sword and shield taking into consideration Article 64 and Article 65 of the Limitation Act.

It should be noted here that the law was never of the opinion that Plaintiff cannot claim adverse possession. On the contrary, it can be established from the numerous decisions of the Supreme Court and Privy Council, High Courts and also of English Courts which Apex Court has discussed and observations/recommendations made in Halsbury laws based on various decisions indicates that based on title/ownership established by the concept of adverse possession or based on possession under Articles 64 and 65 a suit can be filed by the Plaintiff. Therefore, there is no explicit bar under Article 65 or any other provisions of the Act against the Plaintiff who has acquired his title by adverse possession to sue to evict a person in possession. Also, suppose the actual owner dispossesses another person after the expiration of his title. In that case, he can be evicted/dispossessed by such a person by filing a suit under Article 65 of the Act.

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Therefore, it can be seen that the judgment of Gurudwara Sahib v. Gram Panchayat, Sirthala (Supra) and also of Punjab & Haryana High Court cannot be said to be based on the correct law. This can further be clarified by referring to various decisions of the Hon’ble Supreme Court to the contrary.

In Sarangadeva Periya Matam & Anr. v. Ramaswami Gondar (Dead) by LRs., a Three-Judge Bench decision of the Apex Court in which the decision of Privy Council in the matter of Musumut Chundrabullee Debia v. Luchea Debia Chowdrain was discussed held that until January 1950, the Plaintiff owned the suit property when the ‘mutt’ obtained possession of the property. On February 18, 1954, against the ‘mutt’ for “recovery of possession” of the said property, a suit was instituted by Plaintiff on the basis of acquisition of title to property through the way of “adverse possession”. The Court held that submission taken by the Plaintiff that he acquired the title of his property by adverse possession law and was entirely within his rights and was entitled to recover the possession was legally sustainable.

Settling the issue raised with regard to the plea, the Hon’ble Apex court, in Ravinder Grewal & Ors. v. Manjit Kaur & Ors. (supra) held that the person holding possessory title, i.e., title by Adverse Possession, can use the same as ‘sword’ as the Plaintiff and as a ‘shield’ as Defendant within the purview of Article 65 of the Limitation Act, 1963. Given this, the Court overruled the decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala and decision relying on it They cannot be said to be laying down the law correctly. The Apex court opined that Plaintiff could take the plea of Adverse Possession under Article 65 of the Limitation Act. The same is not barred under the Limitation Act, 1963 to sue on the basis mentioned above where there is any infringement as to the Plaintiff’s rights.

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Whether any re-examination of the present law is required?

For some, the subject of adverse possession is a legalised land theft and think if such kind of law is actually required or not. Due to this law, there might arise a situation, sometimes, when the actual owners of immovable property are dispossessed because of their inactions, or some other reasons why the property owners are not able to approach the Court and avail the remedies available to them under the law.

In Hemaji Waghaji Jat v Bhikhabhai Khengarbhai Harijan & Ors., the Hon’ble Supreme Court opined that the law of adverse possession which ejects an owner based on no action taken within the limitation period is unreasonable, specious and wholly uneven. While asking the Government to reconsider the law, the Court further held that the law would not benefit a person who in a concealed manner takes possession of the property of the owner against the law. This in substance will give the impression that the law provides a seal of approval to the illegal action or activities of a potential trespasser or who had already taken the wrongful possession of the property of the actual owner.

Keeping in view the above-mentioned judgment and other related decisions passed by the Court, a questionnaire was put together by the Law Commission of India containing various questions related to the adverse possession law regarding immovable property. A few of the questions listed in the questionnaire were – whether the concept of adverse possession should remain as a law or is it time to abolish it, should the actual owner compensate the illegal possessor of the property for the improvements done by him to the immovable property, etc. However, to date, no productive development has emerged as to whether to remain with this law after having specific changes or to abolish it. Therefore, at this time, amendments or changes are not entertained by the legislature; resultantly, the current provisions of law and precedents will be practised in the country.

What is the current status regarding the concept of adverse possession according to the Supreme Court?

In a recent judgment, the Supreme Court gave judgment in favour of an old widow as the Himachal Pradesh government illegally acquired her property to construct the road. However, the Government took the stance of adverse possession law, and the Government did not pay the compensation for 52 long yrs.

The bench, judged by Indu Malhotra stated-

“A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser, i.e., a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its citizens”[1].

In this recent judgment, there is an exception to this which cannot be misrepresented for personal gain, irrespective of the fact that the concept of adverse possession is given in favour of those who occupy the property for a specific period which is prescribed under the Limitation Act, 1963. On the other hand, this law justifies itself for those who genuinely take care of the property for an extended period. They can gain absolute ownership over the land by adverse possession.

Conclusion

It can be concluded that after taking into account the above judgments and their related information, the basic concept of adverse possession is not a simple fact but a question of law or a question of law and fact. Possession is the primary root of title and is right like property. Once it is proven that a person acquires right, title or interest in a property by any way which includes the method of adverse possession, then it can be used as a sword by the person who will file the suit in view of Article 64 of the Limitation Act and as a shield by the person against whom the suit is going to be filed within the meaning of Article 65 the Limitation Act.

The certain limitation which proves to be in favour of the actual owner can be taken by him while pleading. The continuous possession of the illegal possessor is interpreted to be on behalf of the owner, the casual user of the property does not constitute adverse possession. As already mentioned before, just because a person has possession over the property does not mean that they shall take an adverse possession claim. Also, it will not apply to the property dedicated for the use of the public, and rights cannot accrue on public property by claiming the plea of adverse possession.

Citation:

[1] SLP (Civil) Nos. 467­468/2020 @D. No.36919/2018

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