ADVERSE POSSESSION AS EXPLAINED BY HON'BLE SUPREME COURT OF INDIA

 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.