Historical background
The concept of ADVERSE POSSESSION was born in England around 1275 and was initially created to allow a person to claim right of “seisin” from his ancestry. Many felt that the original law that relied on “seisin” was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in POSSESSION of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title.
The concept of ADVERSE POSSESSION was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for ADVERSE POSSESSION claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by ADVERSE POSSESSION has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of ADVERSE POSSESSION against property held by a governmental entity.
32. During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land.
The doctrine of ADVERSE POSSESSION arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The concept of ADVERSE POSSESSION exits to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and POSSESSION. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of our country we have witnessed registered documents of title and more proper, if not perfect, entries of title in the government records. The situation having changed, the statute calls for a change.
English and American law on “ADVERSE POSSESSION”
In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors., (2009)16 SCC 517 (one of us Bhandari, J.), Supreme Court had an occasion to examine the English and American law on “ADVERSE POSSESSION”. The relevant paras of that judgment (Paras 24 and 26 to 29) are reproduced as under:
In a relatively recent case in P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, this Court again had an occasion to deal with the concept of ADVERSE POSSESSION in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with ADVERSE POSSESSION in paras 5 and 6 observed as under: (SCC pp. 66-67)
5. ADVERSE POSSESSION in one sense is based on the theory or presumption that the owner has abandoned the property to the ADVERSE possessor on the acquiescence of the owner to the hostile acts and claims of the person in POSSESSION. It follows that sound qualities of a typical ADVERSE POSSESSION lie in it being open, continuous and hostile. (See Downing v. Bird 100 So 2d 57 Fla 1958, Arkansas Commemorative Commission v. City of Little Rock 227 Ark 1085 ; 303 SW 2d 569 (1957); Monnot v. Murphy 207 NY 240 ; (1913)100 NE 742 ; City of Rock Springs v. Sturm 39 Wyo 494 ; 273 P 908 ;(1929) 97 ALR 1 .)
6. Efficacy of ADVERSE POSSESSION law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of ADVERSE POSSESSION, there evolves a set of competing rights in favour of the ADVERSE possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the ADVERSE POSSESSION of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the POSSESSION of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, 3, 2d 81. It is important to keep in mind while studying the American notion of ADVERSE POSSESSION, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an ADVERSE POSSESSION claim.
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 ADVERSE POSSESSION. Though we got this law of ADVERSE POSSESSION from the British, it is important to note that these days English Courts are taking a very negative view towards the law of ADVERSE POSSESSION. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission. This Court in Revamma (supra) observed that to understand the true nature of ADVERSE POSSESSION, Fairweather v. St Marylebone Property Co. (1962) 2 WLR 1020 ; (1962) 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow (1930) 2 K.B. 16 termed ADVERSE POSSESSION as a negative and consequential right effected only because somebody else’s positive right to access the court is barred by operation of law. As against the rights of the paper-owner, in the context of ADVERSE POSSESSION, there evolves a set of competing rights in favour of the ADVERSE possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property.
The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of ADVERSE POSSESSION has to be read in that context.
The changing attitude of the English Courts is quite visible from the judgment of Beaulane Properties Ltd. v. Palmer (2005) 3 WLR 554. The Court here tried to read the human rights position in the context of ADVERSE POSSESSION. But what is commendable is that the dimension of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of ADVERSE POSSESSION.
Paragraphs from 26 to 29 of Hemaji Waghaji Jat (supra) are set out as under:
26.With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of ADVERSE POSSESSION in the recent judgment of JA Pye (Oxford) Ltd. v. United Kingdom(2005) 49 ERG 90 which concerned the loss of ownership of land by virtue of ADVERSE POSSESSION. In the said case, “the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr. and Mrs. Graham (the Grahams) occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered surveyor acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land.” The Grahams continued to use the whole of the disputed land for farming without the permission of the applicants from September 1998 till 1999. In 1997, Mr. Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by ADVERSE POSSESSION. The Grahams challenged the applicant company’s claims under the Limitation Act,1980 (the 1980 Act) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of ADVERSE POSSESSION by another.
27. The judgment was pronounced in JA Pye (Oxford) Ltd. v. Graham (2000) 3 WLR 242 ; 2000 Ch 676. The Court held in favour of the Grahams but went on to observe the irony in law of ADVERSE POSSESSION. The court observed that the law which provides to oust an owner on the basis of inaction of 12 years is “illogical and disproportionate”. The effect of such law would “seem draconian to the owner” and “a windfall for the squatter”. The court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation is illogical. The applicant company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court.
28. The House of Lords in JA Pye (Oxford) Ltd. v. Graham (2003) 1 AC 419 ; (2002) 3 WLR 221 ; (2002) 3 All ER 865 (HL), observed that the Grahams had POSSESSION of the land in the ordinary sense of the word, and, therefore, the applicant company had been dispossessed of it within the meaning of the Limitation Act of 1980.
29. We deem it proper to reproduce the relevant portion of the judgment in P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59 : (SCC p. 79, paras 51-52)
Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on ADVERSE POSSESSION, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’).
It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on ADVERSE POSSESSION which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), which reads as under:
‘Every natural or legal person is entitled to the peaceful enjoyment of his POSSESSION. No one shall be deprived of his POSSESSION except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’
This Court in Revamma case also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of “peaceful enjoyment of property”: (SCC p. 79, para 53)
53…(In) Beyeler v. Italy (GC) No. 33202 of 1996 §§ 108-14 ECHR 2000-I, it was held that the ‘interference’ should comply with the principle of lawfulness and pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realised.”
The Court observed: (Revamma case 79-80, paras 54-56)
54…The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized POSSESSION struck a fair balance with any legitimate public interest served.
In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants’ right to the peaceful enjoyment of their POSSESSIONs on the other.
There has therefore been a violation of Article 1 of Protocol 1.’
55. The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of ADVERSE POSSESSION and its interface with the right to peaceful enjoyment in all its complexity.
56. Therefore it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding property rights.
| Legal Requirement to claim Prescriptive Rights –
To establish a claim of title by prescription, that is ADVERSE POSSESSION for 12 years or more, the POSSESSION of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous POSSESSION by itself would not constitute ADVERSE POSSESSION if it was either permissive POSSESSION or POSSESSION without animus possidendi. The pleas based on title and ADVERSE POSSESSION are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide : Periasami vs. P. Periathambi, (1995) 6 SCC 523; Md. Mohammad Ali (dead) by L.Rs. vs. Jagdish Kalita, (2004) 1 SCC 271 and P.T. Munichikkanna Reddy vs. Revamma, (2007) 6 SCC 59 Furthermore for claiming title by ADVERSE POSSESSION, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous POSSESSION being the ingredients of the principle of ADVERSE POSSESSION as contained in the maxim nec vi, nec clam, nec precario, long POSSESSION by itself would not be sufficient to prove ADVERSE POSSESSION NOTICE TO THE TRUE OWNER In P.T. Munichikkanna Reddy and Ors. vs. Revamma and Ors., (2007) 6 SCC 59, this court held : “It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the ADVERSE user gets communicated to the paper- owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of POSSESSION. It follows that the POSSESSION of the ADVERSE possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.” |
An unfavorable view was taken in one Supreme Court case in 2011 :
ADVERSE POSSESSION allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law – to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. [State of Haryana Vs Mukesh Kumar and Others (2011) 11 SCALE 266 Division bench judgment]
Acquiring indefeasible title by ADVERSE POSSESSION
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The Plea of Adverse Possession In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779, this court observed as under :- “In the eye of the law, an owner would be deemed to be in POSSESSION of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes POSSESSION of the property and asserts a right over it. ADVERSE POSSESSION is a hostile POSSESSION by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming ADVERSE POSSESSION must prove that his POSSESSION is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The POSSESSION must be adequate in continuity, in publicity and in extent to show that their POSSESSION is ADVERSE to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.” The court further observed that 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, (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 Saroop Singh v. Banto (2005) 8 SCC 330 Supreme Court observed : “29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant’s POSSESSION becomes ADVERSE. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376) 30. ‘Animus possidendi’ is one of the ingredients of ADVERSE POSSESSION. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his POSSESSION is not ADVERSE as that of true owner, the logical corollary is that he did not have the requisite animus. (See Md. Mohammad Ali (Dead) by LRs. v. Jagdish Kalita and Others (2004) 1 SCC 271)” 20. This principle has been reiterated later in the case of M. Durai v. Muthu and Others (2007) 3 SCC 114. This Court observed as under : “….In terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also POSSESSION within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by ADVERSE POSSESSION.” 21. This court had an occasion to examine the concept of ADVERSE POSSESSION in T. Anjanappa and Others v. Somalingappa and Another ((2006) 7 SCC 570). The court observed that a person who bases his title on ADVERSE POSSESSION must show by clear and unequivocal evidence that his title was hostile to the real owner and amounted to denial of his title to the property claimed. The court further observed that the classical requirements of acquisition of title by ADVERSE POSSESSION are that such POSSESSION in denial of the true owner’s 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 former’s hostile action. 22. In a relatively recent case in P. T. Munichikkanna Reddy and Others v. Revamma and Others (2007) 6 SCC 59) this court again had an occasion to deal with the concept of ADVERSE POSSESSION in detail. The court also examined the legal position in various countries particularly in English and American system. We deem it appropriate to reproduce relevant passages in extenso. The court dealing with ADVERSE POSSESSION in paras 5 and 6 observed as under :- “5. ADVERSE POSSESSION in one sense is based on the theory or presumption that the owner has abandoned the property to the ADVERSE possessor on the acquiescence of the owner to the hostile acts and claims of the person in POSSESSION. It follows that sound qualities of a typical ADVERSE POSSESSION lie in it being open, continuous and hostile. (See Downing v. Bird 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock 227 Ark. 1085 : 303 S.W.2d 569 (1957); Monnot v. Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 AIR 1 (1929).) 6. Efficacy of ADVERSE POSSESSION law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of ADVERSE POSSESSION, there evolves a set of competing rights in favour of the ADVERSE possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the ADVERSE POSSESSION of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the POSSESSION of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of ADVERSE POSSESSION, especially in the backdrop of Limitation Statutes, that the intention to dispossess cannot be given a complete go by. Simple application of Limitation shall not be enough by itself for the success of an ADVERSE POSSESSION claim.” |
Tenancy right :
The defendant in a suit for ejectment was bound to show that he had a right to remain on a land permanently wherefor the onus would be on him. A simple tenancy can be terminated by service of notice under Section 106 of the Transfer of Property Act. Once a valid notice is served, the tenant becomes a trespasser.
The situation, however, has undergone a sea-change after almost all the States have enacted the premises tenancy Acts governing the conditions of tenancy in respect of house premises. The State of West Bengal has also enacted the West Bengal Premises Tenancy Act, 1956[ like cases]
In terms of the 1956 Act, the tenant upon termination of tenancy does not become a trespasser. He becomes a statutory tenant (loosely called). When, however, a defendant is a trespasser and is sued as such, the situation would be totally different. [Biswanath Agarwalla Vs Sabitri Bera AND OTHERS (2009) 15 SCC 693]
| The rights of the Plaintiff :
a plaintiff in a suit for declaration of title and POSSESSION, can succeed only by making out his title and entitlement to POSSESSION and not on any alleged weakness in the title or POSSESSION of the defendants. [T. K. Mohammed Abubucker (D) Thr. lrs. and others Vs P. S. M. Ahamed Abdul Khader and others AIR 2009 SC 2966 ] Plaintiffs having established title to suit property, will be entitled to decree for POSSESSION, unless their right to suit property was extinguished, by reason of defendant being in ADVERSE POSSESSION for a period of twelve years prior to suit. The claim of the Defendant : When defendant claimed title and that was proved to be false or fabricated, then the burden is heavy upon him to prove actual, exclusive, open, uninterrupted POSSESSION for 12 years. |
Case of Co-heir
Supreme Court in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, while following the ratio of Debendra Lal Khan’s case (supra); observed as under :
“But it is well settled that in order to establish ADVERSE POSSESSION of non-co-heir as against another it is not enough to show that one out of them is in sole POSSESSION and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in POSSESSION who claims his POSSESSION to be ADVERSE, should be made out. The POSSESSION of one co-heir is considered, in law, as POSSESSION of all the co-heirs. When one co-heir is found to be in POSSESSION of the properties it is presumed to be on the basis of joint title. The co-heir in POSSESSION cannot render his POSSESSION ADVERSE to the other co-heir, not in POSSESSION, merely by any secret hostile animus on his own part in derogation of the other co-heirs’ title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive POSSESSION and enjoyment by one of them to be knowledge of the other so as to constitute ouster.”
The court further observed thus :
“The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his ADVERSE POSSESSION.”
| TITLE AND ADVERSITY BOTH SHOULD NOT BE CLAIMED
R. Chandevarappa and Others v. State of Karnataka and Others (1995) 6 SCC 309 are similar to the case at hand. In this case, this court observed as under :- “The question then is whether the appellant has perfected his title by ADVERSE POSSESSION. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in POSSESSION from 1968, he perfected his title by ADVERSE POSSESSION. But the crucial facts to constitute ADVERSE POSSESSION have not been pleaded. Admittedly the appellant came into POSSESSION by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, haying come into POSSESSION under colour of title from original grantee, if the appellant intends to plead ADVERSE POSSESSION as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant’s POSSESSION would become ADVERSE. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant.” |
Period of Limitation for recovery of Possession
If the plaintiff is to be granted a relief of recovery of POSSESSION, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. In the suit has been filed for POSSESSION, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.
