Anomalous Position on “Adverse Possession” Settled

On intention to claim adverse possession, Powell v. Macfarlane¹ is quite illustrative and categorical, holding in the following terms: If the law is to attribute possession of land to a person, who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).

The three-Judge Bench of the Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur² has finally removed an anomalous position on adverse possession that “at the end of 12 years the adverse possessor has perfect right to possession of the property to the exclusion of owner but has no title to the property while the owner lost his right to possession but continues to have the title to the property”.

The Bench of Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ. pointed out that historical development of adverse possession requires that adverse possessor had to establish “the essential requirements of adverse possession, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge shall co-exist at the same time.³ Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it”.⁴

Another principle was that “Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required.”

The author wishes to begin this essay with the three-Judge Bench decision in Sarangadevar Periya Matam v. Ramaswami Gounder.⁵

In Sarangadeva Periya Matam⁶ on death of the plaintiff-respondent, his legal representative pursued the appeal “claiming title to the lands by prescriptive right on adverse possession on reason that the plaintiff, since 1915, and his predecessors-in-interest were in adverse possession of the lands”, and “on the expiry of 12 years in 1927 he acquired prescriptive title to the lands under Section 28 ⁷ read with Article 144⁸ of the Limitation Act, 1908”.

Accepting his arguments on the above first contention,⁹ the Bench of Bachawat, R.S. Subba Rao, K. and Mudholkar, J.R., JJ. after an exhaustive review of earlier decisions, held that:

10. … by the operation of Article 144 read with Section 28 of the Limitation Act, 1908 the title of the math to the suit lands became extinguished in 1927, and the plaintiff acquired title to the lands by prescription. He continued in possession of the land until January 1950. It has been found that in January 1950 he voluntarily delivered possession of the lands to the math, but such delivery of possession did not transfer any title to the math.¹⁰

On the next issue, the Supreme Court held that “the suit was instituted in 1954 and is well within time”¹¹ when it was found by Their Lordships that:

7. … the present mathadhipathi was elected in 1939 when the title of the math to the suit lands was already extinguished by adverse possession. By his election in 1939 the present mathadhipathi could not acquire the right to possess and enjoy or to recover properties which no longer belonged to the math.¹²

The appeal was dismissed.

In Des Raj v. Bhagat Ram¹³, the plaintiff-respondents filed the suit “for declaration of title and for a permanent injunction based on adverse possession against defendants-appellants”. After observing that “the factual aspects of the matter which are neither denied nor disputed,” the Bench of S.B. Sinha and Markandey Katju. JJ. declared that ”the plaintiff-respondent had remained in possession for a long time i.e. since 1953 and that in his plaint, the plaintiff did not specifically plead ouster but mofussil pleadings, as is well known, must be construed liberally, and be construed as a whole”¹⁴ on quoting Devasahayam v. P. Savithramma,¹⁵ declared that:

19. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 1963¹⁶ vis-à-vis Articles 142¹⁷ and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore not in dispute that the possession of a co-sharer is presumed to be possession of the other co-sharers unless the contrary is proved.

20. A plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act, 1963.

The Bench of S.B. Sinha and Markandey Katju, JJ. also declared that:

22. The mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in the suit exclusively and not for and on behalf of other co-owners also is evident from the fact that the defendant-appellants themselves had earlier filed two suits. Such suits were filed for partition. In those suits the defendant-appellants claimed themselves to be co-owners of the plaintiff. The claim of hostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants since both suits were dismissed in the year 1977…. It may be true, as has been contended on behalf of the appellants before the courts below, that a co-owner can bring about successive suits for partition as the cause of action, therefore, would be a continuous one. But it is equally well settled that the pendency of a suit does not stop the running of “limitation”. The very fact that the defendants despite the purported entry made in the revenue settlement record-of-rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly goes to show that even prior to institution of the said suit the plaintiff-respondent had been in hostile possession thereof.¹⁸

The Court observed that:

“Article 65 of the Limitation Act, 1963, therefore, would in a case of this nature have its role to play, if not from 1953, but at least from 1968 when the plaintiff made his hostile declaration claiming title for the property at least in his written statement in the suit filed in the year 1968. Thus, at least from 1968 onwards, the plaintiff continued to exclusively possess the suit land with the knowledge of the defendants- appellants.”¹⁹

Dismissing the appeal, the Bench of S.B. Sinha and Markandey Katju, JJ. held that:

“…having regard to the peculiar facts obtaining in the case, we are of the opinion that the plaintiff-respondent had established that he acquired title by ousting the defendant-appellants by declaring hostile title in himself which was to the knowledge of his co-sharers.”²⁰

In Ravinder Kaur²¹, the Bench of Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ. clearly held that:

62….a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner, as the case may be, against whom he has prescribed. In our opinion, the consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.

(emphasis supplied)

Then coming to another dimension on “claim of adverse possession over public lands”, the Court declared that:

63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences; hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.²²

The “concomitant effect of adverse possession” was also explained when the Court observed:

“Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on reentry except as provided in Article 65 itself.”²³

The Bench of Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ. declared that “plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff” overruling Gurdwara Sahib v. Gram Panchayat Village Sirthala,²⁴ State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj²⁵ and Dharampal v. Punjab Wakf Board²⁶ as not correct.

Comments of the author

On careful reading of Ravindra Kaur Grewal²⁷, the following principles can be noted:

1. The cardinal principle of law of property was that possession, let us say, legally acquired by any person i.e. the owner or lessee, etc. cannot be forcibly taken away by others except under the authority of law as it is popularly known that “possession is nine points in law”.

   In the above circumstances, a suit for possession under Section 6 of the Specific Relief Act, 1963²⁸ can be brought against the trespasser²⁹ or appropriate orders can be passed protecting possession of a person under Section 145 of the Code of Criminal Procedure, 1973³⁰ when there is any dispute over immovable properties.

2. Even before the end of 12 years or more, the adverse possessor can protect his adverse possession against any other person except the owner of the property.

3. After completion of 12 years or more, the erstwhile owner's right, title and interest in the property passes on to the adverse possessor, his right to possession shall not be disturbed even by owner. Therefore, adverse possession as “as sword” can be used his adverse possession on strength of Article 65 of the Limitation Act, 1963³¹ to claim the decree for title to the property on completion of 12 years.³²

4. On extinguishment of the owner's title, the adverse possessor can even evict the owner on being dispossessed by him since he cannot be remediless. As corollary, adverse possession can be used “as shield” under Article 64 of the Limitation Act, 1963³³ to ward off any interference to possession even by the true owner.

5. An adverse possessor completely silent on being ousted from possession by subsequent adverse possessor, the latter has identical rights as explained above, against everyone, including the owner at the end of 12 years.

6. The subsequent adverse possessor in the above circumstances, cannot tack on the earlier period of adverse possession already completed by the former to his advantage, but shall hold adverse possession afresh for period of 12 years in view of observation of the Full Bench that “two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.”

7. Another principle given on tacking by the Full Bench, on the other hand, was that “tacking is based on the fulfilment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right,”³⁴ the legal heirs of adverse possessor can tack the earlier period to their advantage to complete 12 years.

For instance, an adverse possessor claiming through his immediate predecessor, say one of the parents, can tack the earlier possession advantageously to claim the benefit of the Full Bench decision.

On strength of the observations in State of Haryana v. Mukesh Kumar³⁵ and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan,³⁶ the author firmly believes that “when adverse possession itself is simply trespassing into property of others, it is not justifiable to allow tacking in above circumstances thereby aggravating the difficulties of true owner”.

The Bench of Dalveer Bhandari and Deepak Verma, JJ. in Mukesh Kumar³⁷ observed that “Adverse possession allows a trespasser — a person guilty of a tort, or even a crime, in the eye of the 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” asking the Government of India to either abolish or bring suitable amendments to law of adverse possession.

Identical observations can be found in another Bench of Dalveer Bhandari and Harjit Singh Bedi, JJ. who also wrote to the Government of India to introduce suitable changes.³⁸

Despite the above observations on principle of adverse possession, Ravinder Kaur³⁹ found it as a necessary, inevitable principle when the owner did not care to protect his property.