SC: “ADVERSE POSSESSION”, not “MERE POSSESSION”, necessary for claiming title.

As per Black’s Law Dictionary, “adverse possession” means:

“The enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open and notorious.”

Position of Law in India

Adverse possession is a method of acquiring title to  “real property” by the way of possession for a statutoty period in accordance with certain conditions. The said period and other conditions are governed by The Limitation Act, 1963. As per this doctrine, a person may establish his ownership against the true owner once he/she fulfils all of the legal requirements as per the limitation act. Once the person has enjoyed a peaceful and continuous possession of a property while fulfilling all the other requirements of the Limitation Act, his/her right over the said property becomes indefeasible. The legal requirements include:

  • The owner of the property must have actual knowledge of adverse possession.
  • The word “continuity” refers to regular uninterrupted occupancy of the property.
  • As per the Limitation Act, the prescribed period is 12 years in case of private property whereas the prescribed period in case of Government/Public/State Authority owned property is 30 years.
  • Limitation period begins from the expression of hostile intention/motive which amounts to denial of title of the real owner to his knowledge.
  • The onus lies on the party to set up the title on the basis of adverse possession.
  • Presumption and probabilities cannot be substituted for the evidence.

Often, the test of nec vi, nec clam, nec precario” i.e., ‘without force, without secrecy, without permission‘ as an established test for finding adverse possession. Recently the Hon’ble Supreme Court in the matter of Ram Nagina Rai & anr. versus Deo Kumar Rai (deceased) by lrs. & anr. in its order on 21.08.2018 observed that there is no absolute requirement to deem that mere possession of the suit property by any person amounts to an adverse possession over the suit property as it is a clear violation of the basic rights of the actual owner of the property.

Copy of order: Order 21st Aug, 2018

The Hon’ble Apex Court made the following observations:

  • When contesting defendant(s) raise a plea of adverse possession, then the burden of proof is on the defendant(s) to prove affirmatively that the bar of limitation prescribed under Article 65 of the Schedule of the Limitation Act, 1963, viz., 12 years, is applicable in the matter to file a suit for possession of immovable property based on title. (Para 6)
  • The limitation of 12 years begins when the possession of the defendants would become adverse to that of the plaintiffs. (Para 6)
  • Adverse possession means a hostile assertion, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. (Para 6)
  • The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. (Para 6)
  • While deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the intention/motive of the person doing such acts, which must be ascertained from the facts and circumstances of each case. (Para 6)
  • Where the possession can be referred to a lawful title, it would not be considered to be adverse, because the person whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another’s title. In other words, one who holds possession on behalf of another, does not by mere denial of the other’s title, make his possession adverse so as to give himself the benefit of the statute of limitation. (Para 6)
  • The acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. (Para 8)
  • There is a lot of difference between simple possession and adverse possession. Every possession is not adverse possession. One does not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be. (Para 8)
  • Until a person’s possession becomes adverse to that of the real owner, the person continues to be in the permissive possession of the property. (Para 9)
  • Only if a person’s possession becomes adverse to the interest of the real owner and the real owner fails to file the suit for possession within 12 years, as prescribed under Article 65 of the Limitation Act, from the point of time the possession by the defendants becomes adverse to the plaintiffs, the real owner loses his title over the property. (Para 9)
  • A person claiming title through adverse possession is not only required to prove that he/she has been in possession of the suit property continuously and uninterruptedly, but also needs to prove, by cogent and convincing evidence, that there is a hostile intention/motive and possession adverse to the knowledge of the real owner. (Para 9)
  • It is important to assess whether such intention to dispossess is apparent to the actual owner or not. The intention of the adverse user must be communicated atleast impliedly to the actual owner of the property. (Para 11)
  • The hostile attitude should be open to the knowledge of the real owner. It follows that the intention and possession of the adverse possessor must be hostile enough to give rise to a reasonable notice to the actual owner. (Para 11)
  • Animus possidendi’ i.e. The intent to possess a thing (meaning as per Black’s Law Dictionary) is one of the ingredients of adverse possession, and unless the person possessing the property has the requisite hostile animus(intention/motive), the period of prescription does not commence. (Para 12)
  • Virtually, a person claiming title through adverse possession is required to prove the possession to be adequate in continuity, adequate in publicity and to adequately show that the possession is adverse to that of the true owner. (Para 12)
  • Adverse possession must start with wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (Para 12)
  • The physical fact of exclusion, possession and animus possidendi to hold as owner, in exclusion to the actual owner, are the most important factors to prove adverse possession. (Para 12)
  • A person pleading adverse possession has no equities in his favour. Since he/she is trying to take away the rights of the true owner, it is for him/her to clearly plead and establish all the facts necessary to establish his adverse possession. (Para 12)

-Tushar Kaushik

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