ADVERSE POSSESSION AS EXPLAINED BY HON'BLE
SUPREME COURT OF INDIA:-
In Annasaheb vs B.B.Patil AIR 1995 SC 895 Hon'ble court
held that-
“Adverse possession means a hostile possession which is expressly
or impliedly in denial of title of the true owner. Under Article 65 of the
Limitation Act, burden is on the defendants to prove affirmatively. A person
who bases his title on adverse possession must show by clear and
unequivocal evidence i.e. possession was hostile to the real owner and
amounted to a denial of his title to the property claimed. In deciding whether
the acts, alleged by a person, constitute adverse possession, regard must
be had to the animus of the person doing those acts which must be
ascertained from the facts and circumstances of each case. The person
who bases his title on adverse possession, therefore, must show by clear
and unequivocal evidence i.e. possession was hostile to the real owner
and amounted to a denial of his title to the property claimed.”
In Karnataka Board of Wakf Vs Govt. of India (2004)10
SCC 779 Hon’ble court in para 11 of the judgment held that-
“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 the true
owner, it is for him to clearly plead and establish all facts necessary to
establish his adverse possession.”
In T. Anjanappa & others Vs Somalingappa & another
(2006)7 SCC 570 Hon’ble court held that -
“It is well recognized proposition in law that mere possession
however long does not necessarily means that it is adverse to the true
owner. Adverse possession really means the hostile possession which is
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expressly or impliedly in denial of title of the true owner and in order to
constitute adverse possession the possession proved must be adequate in
continuity, in publicity and in extent so as to show that it is adverse to the
true owner. The classical requirements of acquisition of title by adverse
possession are that such possession in denial of the true owners title must
be peaceful, open and continuous. The possession must be open and hostile
enough to be capable of being known by the parties interested in the
property, though it is not necessary that there should be evidence of the
adverse possessor actually informing the real owner of the formers hostile
action. The High Court has erred in holding that even if the defendants
claim adverse possession, they do not have to prove who is the true owner
and even if they had believed that the Government was the true owner
and not the plaintiffs, the same was inconsequential. Obviously, the
requirements of proving adverse possession have not been established. If
the defendants are not sure who is the true owner the question of their
being in hostile possession and the question of denying title of the true
owner do not arise. Above being the position the High Courts judgment is
clearly unsustainable.”
In Chatti Konati Rao and other’s vs Palle Venkata Subba
Rao (2010) 14 SCC 316 Hon’ble court in para 14 of the judgment held
that-
“In view of the several authorities of this court, few whereof
have been referred above, what can safely be said is that were possession
however long does not necessarily mean that it is adverse to the true
owner. It means hostile possession which is expressly or impliedly in denial
of the title of the true owner and in order to constitute adverse possession
the possession must be adequate in continuity, in publicity and in extent so
as to show that it is adverse to the true owner. The possession must be
open and hostile enough so that it is known by the parties interested in the
property. The plaintiff is bound to prove his title as also possession within
twelve years and once the plaintiff proves his title, the burden shifts on
the defendant to establish that he has perfected his title by adverse
possession. Claim by adverse possession has two basic elements i.e. the
possession of the defendant should be adverse to the plaintiff and the
defendant must continue to remain in possession for a period of twelve
years thereafter.”
Adverse Possession : A Critique 47
What is adverse possession, on whom the burden of proof lie, the
approach of the Hon’ble court towards such plea, etc have been the subject
matter of decision in a large number of cases such as Ejas Ali vs. Special
Manager, Coart of wards Balrampur Estate AIR 1935 PC 53, S.M.
Karim vs. Bibi Sakina AIR 1964 SC 1254, Parsinni vs. Sukhi (1993)
4 SCC 375, Annasaheb Bapusaheb Patil vs Balwant (1995) 2 SCC
543, Vidya Devi vs. Prem Prakash (1995) 4 SCC 496, D. N.
Venkatarayappa vs. State of Karnataka (1997) 7 SCC 567, Mahesh
Chand Sharme vs. Raj Kumari Sharma (1996) 8 SCC 128,
M.D.Mohammad Ali (Dead) by LRs. Vs. Jagdish Kalita & other’s
(2004) SCC 271, Saroop Singh vs. Banto & other’s (2005) 8 SCC
330, Smt. Kalawati (Since deceased) vs. Girish Sharma (Since
deceased) 2007 UAD 859, Nagar Palika Parishad Jaspur Distt.
Udham Singh Nagar through its executive officer vs Sooraj Singh
and 2 other’s 2007 (2) UC 849, P.T. Munichikkanna Reddy vs.
Revamma AIR 2007 SC 1753 & Annakili vs. Vedanayagam and
other’s AIR 2008 SC 346.
Adverse possession as a shield/defence:- It is very much clear that
claim of ownership by adverse possession can be made only by way of
defence when arrayed as defendant in proceedings against him. Even if
the plaintiff is found to be in adverse possession, it cannot seek a declaration
to the effect that such adverse possession has matured into ownership.
No declaration can be sought by a plaintiff with regard to his ownership
on the basis of an adverse possession.
In Bhim Singh and others Vs Zile Singh & others, AIR
2006 PH 195 Hon’ble High Court of Punjab and Haryana in para 11 of
the judgment held that:-
“11. Under Article 64 of the Limitation Act, as suit for possession
of immovable property by a plaintiff, who while in possession of
the property had been dispossessed from such possession, when
such suit is based on previous possession and not based on title,
can be filed within 12 years from the date of dispossession.
Under Article 65 of the Limitation Act, a suit for possession of
immovable property or any interest therein, based on title, can
be field by a person claiming title within 12 years. The limitation
under this Article commences from the date when the possession
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of the defendant becomes adverse to the plaintiff. In these
circumstances, it is apparent that to contest a suit for possession,
filed by a person on the basis of his title, a plea of adverse
possession can be taken by a defendant who is in hostile,
continuous and open possession, to the knowledge of the true
owner, if such a person has remained in possession for a period
of 12 years. It, thus, naturally has to be inferred that plea
of adverse possession is a defense available only to a
defendant. This conclusion of mine is further strengthened from
the language used in Article 65, wherein, in column 3 it has
been specifically mentioned “when the possession of the
defendant becomes adverse to the plaintiff.” Thus, a perusal of
the aforesaid Article 65 shows that the plea is available only to
a defendant against a plaintiff. In these circumstances, natural
inference must follow that when such a plea of adverse
possession is only available to a defendant, then no declaration
can be sought by a plaintiff with regard to his ownership on the
basis of an adverse possession.”
Recently Hon’ble Apex Court in the matter of Gurdwara Sahib
Vs Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669
has held that no declaration can be sought by a plaintiff with regard to his
ownership on the basis of an adverse possession. The relevant paragraphs
of the judgment are reproduced as under:
“8. There cannot be any quarrel to this extent that the judgments
of the courts, below are correct and without any blemish. Even
if the plaintiff is found to be in adverse possession, it cannot
seek a declaration to the effect that such adverse possession
has matured into ownership. Only if proceedings are filed against
the appellant and the appellant is arrayed as defendant that it
can use this adverse possession as a shield/defense.
10. As the appellant is in possession of the suit property since
13-4-1952 and has been granted the decree of injunction, it
obviously means that the possession of the appellant cannot be
disturbed except by due process of law. We make it clear that
though the suit of the appellant seeking relief of declaration has
been dismissed, in case of respondents file suit for possession
Adverse Possession : A Critique 49
and/or ejectment of the appellant, it would be open to the appellant
to plead in defence that the appellant had become the owner of
property by adverse possession. Needless to mention at this stage,
the appellant shall also be at liberty to plead that findings of
issue 1 to the effect that the appellant is in possession of adverse
possession since 13-4-1952 operates as res judicata. Subject to
this clarification, the appeal is dismissed.”
It is pertinent to mention hear that a new approach in defining the
subject was made by the Hon’ble Apex court in the case of State of
Haryana vs. Mukesh Kumar and Other's (2011) 10 SCC 404. The
relevant paragraphs of the judgment are reproduced as under:
“1&2. 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 authorised by law. The
theory of adverse possession is also perceived by the general
public as a dishonest way to obtain title to property. Property
right advocates argue that mistakes by landowners or negligence
on their part should never transfer their property rights to a
wrongdoer, who never paid valuable consideration for such an
interest. The Government itself may acquire land by adverse
possession. Fairness dictates and commands that if the
Government can acquire title to private land through adverse
possession, it should be able to lose title under the same
circumstances.
39. We inherited this law of adverse possession from the British.
Parliament may consider abolishing the law of adverse possession
or at least amending and making substantial changes in the law
in the larger public interest. The government instrumentalitiesincluding
the police-in the instant case have attempted to possess
land adversely. This, in our opinion, is a testament to the absurdity
of the law and a black mark upon the justice system's legitimacy.
The Government should protect the property of a citizen-not
steal it. And yet, as the law currently stands, they may do just
that. If this law is to be retained, according to the wisdom of
Parliament, then at least the law must require those who
adversely possess land to compensate the title owners according
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to the prevalent market rate of the land or property in question.
This alternative would provide some semblance of justice to those
who have done nothing other than sitting on their rights for the
statutory period, while allowing the adverse possessor to remain
on property. While it may be indefensible to require all adverse
possessors- some of whom may be poor- to pay market rates
for the land they possess, perhaps some lesser amount would
be realistic in most of the cases. Parliament may either fix a set
range of rates or to leave it to the judiciary with the option of
choosing from within a set range of rates so as to tailor the
compensation to the equities of a given case.
40. Parliament must seriously consider at least to abolish "bad
faith" adverse possession i.e. adverse possession achieved through
intentional trespassing, actually believing it to be their own could
receive title through adverse possession, sends a wrong signal
to the society at large. Such a change would ensure that only
those who had established attachments to the land through honest
means would be entitled to legal relief.
41. In case, Parliament decides to retain the law of adverse
possession, Parliament might simply require the adverse
possession claimants to possess the property in question for a
period of 30 to 50 years, rather than a mere 12. Such an extension
would help to ensure that the successful claimants have lived on
the land for generations, and are therefore less likely to be
individually culpable for the trespass (although their forebears
might). A longer statutory period would also decrease the
frequency of adverse possession suits and ensure that only those
claimants most intimately connected with the land acquire it,
while only the most passive and unprotective owners lose title.
