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 statute of
limitation was put into place that allowed for a person in possession
of property for twenty years or more to acquire title to that
property. The concept of adverse possession was subsequently adopted
in the United States. 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. During he colonial period, prior to the
enactment of the Bill of Rights, property was frequently taken by
states from private land owners without compensation.
@2
INTRODUCTION:
Title
means ownership and possession means a relationship between a person
and a thing i.e. object i.e. corpus. The relationship is in view of
the continuing exercise of exclusive control over a material object.
This is called as a corporeal possession. Possession is a good title
of right against anyone except who cannot show his better title. It
is the general principle that title follows possession, but is not
applicable in every case. Possession is prima facie proof of title.
Possession
may be defined as “dominion over, and exclusive control and use of
a material object or property resulting from the fact of holding it (
whether rightly or wrongly) in one’s power. Possession is said to
be the “nine-tenths of the law” and is a prima facie evidence of
ownership-good against any other claim, except that the legal owner.”
It may mature into legal ownership due to passage of time, as in
adverse possession.
@3
The
general principle of law is that, the law of Limitation bars the
remedy, but does not extinguish the right itself. However, Sec. 27 of
the Limitation Act is an exception to the general rule as regard to
suit for possession. Section 27 of the Limitation Act needs a mention
here. In departure from the normal rule that remedy is barred due to
lapse of time but not the right, it provides “At the determination
of the period hereby limited to any person for instituting the suit
for possession of any property, his right to such property shall be
extinguished.”
It
provides that, after determination of period of limitation to any
person for instituting a suit for possession of any property, his
right to such property shall be extinguished. During pre-Independence
period, There was a provision corresponding to section 27 of
Limitation Act. However, it was not provided expressly that, right or
title would be extinguished by expiry of the limitation period. The
legal position as regards the acquisition of title to land by adverse
possession has been succinctly stated by the Judicial Committee of
the Privy Council in Perry -Vs- Clissold, reported
in [(1907) AC 73]. It observed that, “It
cannot be disputed that a person in possession of land in the assumed
character of owner and exercising peaceably the ordinary rights of
ownership has a perfectly good title against all the world but the
rightful owner. And if the rightful owner does not come forward and
assert his title by the process of law within the period prescribed
by the provisions of statute of limitation applicable to the case,
his right is forever extinguished and the possessory owner acquires
an absolute title.” This statement of law has been accepted by
the Hon'ble Supreme Court of India in case of Nair Service
Society Ltd. -Vs- K.C. Alexander reported in (AIR
1968 SC 1165).
@4
The
concept of possession implies actual power over the object possessed
and an apparent control over it – corpus possession is coupled with
animus possidendi – that is, knowledge of these rights and the
desire and intention of exercising them if need be. Possession in the
eye of law consists of the fact of physical occupation and the mental
element of holding the subject of possession to the exclusion of
others.
The
owner is said to be in possession of it when he can exclude everyone
else from entering upon it, when he can go upon it whenever he likes
and use it in whatever manner is permissible. Possession is a
substantive right or interest carrying with it legal incidents and
advantages apart from the owner's title. It is a heritable and
transferable right. When a person is in possession he can, as a
defendant, resist a claimant who cannot show a better title. On the
ground of his possession a person can seek relief by way of
injunction. When while in possession he has been wrongfully ousted by
another he can sue to recover possession from the wrong doer.
Possession is presumptive evidence of title. It is prima facie
evidence of title against all but the true owner, as in District
Board Salem Vs. Hanumantha Rao reported in AIR
1954 Mad. 508.
@5
Under
the present Limitation Act, 1963, all suits for possessions of
immovable property have been brought under two categories namely;
1.
Suits based on the right to claim possession based on previous
possession and not on proprietary title;
2.
The suits based on proprietary title.
The
suits under Article 64 must be brought within 12 years from the date
of dispossession. As such for applicability of Article of the Act,
the prime requirement is that the plaintiff should be dispossessed,
or should discontinue possession.
Initially
the constitution of India has ensured right to property as a
fundamental right to every citizen of India. With change in time,
right to property was made as a constitutional right and thus, an
important right exists in every citizen of India. It is trite
position of law that, every person who claims his right over any
property must establish his lawful nexus with said property. However,
Doctrine of Adverse possession, is an exception to this rule, wherein
person raising plea of adverse possession, has no lawful nexus with
the property, but, his right is recognised on basis of certain
qualifying conditions.
@6
SECTION
27 OF THE LIMITATION ACT:
Article
64 as well as Article 65 shall have be read with Section 27 of the
Limitation Act titled as – “Extinguishment of right to property”
which reads as: “At the determination of the period hereby
limited to any person for instituting the suit for possession of any
property, his right to such property shall be extinguished.” That
means, where a cause of action exists to file a suit for possession
and if the suit is not filed within the period of limitation
prescribed, then, not only the period of limitation comes to an end,
but the right based on title or possession, as the case may be, will
be extinguished. This provision is to assist the person in possession
to acquire prescriptive title by adverse possession.
Section
27 is an exception to the well accepted rule that limitation bars
only the remedy and does not extinguish the title. It lays down a
rule of substantive law by declaring that after the lapse of period,
the title ceases to exist and not merely the remedy, as in Valliamma
Champaka -vs- Sivathanu Pillai reported in
(1964) 1 MLJ, 161 (FB). It means that since the
person who had a right to possession has allowed his right to be
extinguished by his inaction, he cannot recover the property from the
person in adverse possession and as a necessary corollary thereto,
the person in adverse possession is enabled to hold on to his
possession as against the owner not in possession.
The
Hon'ble Supreme Court has held in Krishnamurthy S, Sethur V.
O.V. Narasimha Setty and others reported in (AIR
2007 SC 1788) that Section 27 of the Limitation Act,
1963 operates to extinguish the right to property of a person who
does not sue for its possession within the time allowed by law. The
right extinguished is the right which the lawful owner has and
against whom a claim for adverse possession is made, therefore, the
plaintiff who makes a claim for adverse possession has to plead and
prove the date on and from which he claims to be in exclusive,
continuous and undisturbed possession.
@7
The
question whether, possession, is adverse or not is often one of
simple fact, but it may also be a conclusion of law or a mixed
question of law and fact. The facts found must be accepted but the
conclusion drawn from them, namely, ouster or adverse possession is a
question of law and has to be considered by the court.
@8
POSITION
OF ARTICLE 64 AND 65:
ARTICLE
64:
The
principle of law is firmly established that a person, who bases his
title on adverse possession, must show by clear and unequivocal
evidence that his possession was hostile to the real owner and
amounted to a denial of his title to the property claimed. In the old
Limitation Act, 1908, as per the provisions of section 142 and 144,
whether the suit was based on title or not, the burden of proof was
always lay on the plaintiff, who had to prove that he was in
possession of the property within 12 years of the suit. However, in
the new Limitation Act, 1963 said situation has been modified and in
the suit based on title, as per article 65, the burden of proof
squarely on the defendant to show when his possession becomes adverse
to the plaintiff. This improvement conferred better rights on a
person who claims to have title to the property, partially diluting
stern face of the law of adverse possession.
@9
Section
5 of the Specific Relief Act, 1963 provides that a person entitled to
the possession of specific immovable property may recover it in the
manner provided by the Code of Civil Procedure that is by filing of
the suit of for recovery of the possession. In such a suit plaintiff
must establish his title and such a suit will govern by Article 65.
On the other hand section 6 of the said Act provides that if any
person is dispossessed without his consent of the immovable property
otherwise than in due course of law, he may recover possession
thereof by filing suit for possession. Section 6 has nothing to do
with title. Plaintiff's previous possession will be sufficient in
such a suit. Section 6 is enabling provision. The section does not
compel such dispossessed person to sue under section 6. He is not
precluded from seeking any other remedy under the provisions of any
other law.
The
claim to rights and interests in relation to property on the basis of
possession has been recognized. Uninterrupted and uncontested
possession for a specified period, hostile to the rights and
interests of true owner is considered to be one of the legally
recognized modes of acquisition of ownership. The prescription of
periods of limitation for recovering possession or for negation of
the rights and interests of true owner is the core and essence of the
law of adverse possession. Right to access to courts is barred by
law on effluxion of prescribed time.
@10
Article
64 and 65 constitute independent provisions relating to suits for
possession brought under different situations. They do not overlap
notwithstanding that both provide a period of 12 years limitation.
They stand distinguished from each other in number of respects.
Articles 64 governs suits for possession based on previous possession
and not in title. Article 65 controls suits for possession based on
title. Under Article 64, the burden lies on plaintiff to prove his
former possession and subsequent dispossession within 12 years prior
to the suit and it is unnecessary to inquire whether the defendant's
possession was adverse or when it becomes adverse to the plaintiff.
Under
Article 65, the burden lies on the defendant to show that he or his
predecessor - in - interest had been in continuous adverse possession
for over 12 years. Under Article 64, the nature of plaintiff's
possession is not material. Under Article 65 however, only possession
adverse to the plaintiff is relevant. Article 65 specifically refers
to “immovable property or any interest therein” whereas, Article
64 mentions only “immovable property” affording room for argument
that interest in immovable property stands outside the scope of that
article. Finally, while the starting point of limitation under
Article 64 is the date of dispossession, under Article 65 - it is the
date when the possession of the defendant became adverse to the
plaintiff. The suit under Article 64 must be one for possession. The
Article governs suit for possession of immovable property based on
previous possession and not on the title. To attract the Article 64,
the plaintiff must initially have been in possession of the property
and should have been dispossessed by the defendant or some one
through whom the defendant claims.
@11
The
Hon'ble Supreme Court of India held in the case of Karnataka
Board of Wakf Vs.GOI, (2004) 10 SCC 799
(in the eye of 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 rights over it and the person having title
omits or neglects to take legal action against such person for years
together( emphasis supplied). “The process of acquisition of
title by adverse possession springs into action essentially by
default or inaction of the owner”. essential requisites to
establish adverse possession are that the possession of the adverse
possessor must be neither by force nor by stealth nor under the
license of the owner. It must be adequate in continuity, in publicity
and in extent to show that the possession is adverse to the paper
owner.
@12
ARTICLE
65:
The
law on adverse possession is contained in the Indian Limitation Act.
Article 65, Schedule
I of The Limitation Act. It prescribes a limitation of 12 years for a
suit for possession of immovable property or any interest therein
based on title. It is important to note that the starting point of
limitation of 12 years is counted from the point of time “when the
possession of the defendants becomes adverse to the plaintiff”.
Article 65 is an independent Article applicable to all suits for
possession of immovable property based on title i.e., proprietary
title as distinct from possessory title.
Adverse
possession, is the possession of property by a person which is
adverse to every other person having, or claiming to have a right of
possession by virtue of a different title. The law of prescriptive
rights is best summed up by the Brocard, 'nec vi, nec clam, nec
precario, indicating the acquisition of a right by prescription must
be in circumstances that exclude 'force, stealth or licence'. A
prescriptive right is essentially one that is created by uncontested
assertion of the right for a given period of time. The principle is
based in many ways on a sort of estoppel in rem.
@13
INGREDIENTS
FOR ADVERSE POSSESSION:
The
intention to exclude others from the control of property is an
essential element of factual possession. The intention to possess the
property exclusively implies the intention to exclude all others
including the true owner whether known or unknown to the adverse
possessor. The possession contemplated by Article 65 is the settled
possession,
which means i) effective,
ii) continuous and
iii) to the
knowledge of the owner or without any attempt of concealment by the
possessor.
The
concept of adverse possession contemplates a hostile possession i.e.
the possession which is expressly or impliedly in denial of the title
of the true owner to the knowledge of the true owner and claiming the
title as an owner in himself by the person claiming to be in adverse
possession. In other words such hostile possession shall not be
secret and person in adverse possession must not acknowledge the
title of the true owner but has to deny the title of the true owner.
The adverse possession must 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. This shows that the
possession must be nec vi nec clam nec precario i.e. in continuity,
in publicity and in extent. This shows that permissive possession is
not hostile possession.
@14
In
the case of Namdeo Karbhari v. Chababu @ Chahadu reported
in 2006(1) Mh.L.J.878 the principles in regard to
the plea of ownership by adverse possession, laid down in the case of
D.N.Venkatarayappa & anr v. State of Karnataka & anr
reported in (1997) 7 SCC 567 are
reproduced as under:
(a) The
possession required must be adequate in continuity, in publicity and
in extent to show that it is possession adverse to the competitor.
(b) Apart
from the actual and continuous possession which are among other
ingredients of adverse possession, there should be necessary animus
on the part of the person who intends to perfect title by adverse
possession.
@15
(c) One
of the important ingredient to claim adverse possession is that the
person who claims adverse possession must have set up title hostile
to the title of the true owner.
Once
adverse possession is proved by the person despite by wrong means,
the true owner loses his right over the land/property. A person can
prove adverse possession if the possession is:
ACTUAL:
Adverse
possession consists of actual occupation of the land with the intent
to keep it solely for oneself. Merely claiming the land or paying
taxes on it, without actually possession it, is insufficient. Entry
on the land, whether legal or not, is essential. A trespass may
commence adverse possession, but there must be more than temporary
use of the property by a trespasser for adverse possession to be
established. Physical acts must show that the possessor is exercising
the dominion over the land that an average owner of similar property
would exercise. Ordinary use of the property – for example,
planting and harvesting crops or cutting and selling timber –
indicates actual possession. In some states acts that constitute
actual possession are found in statute.
@16
OPEN
AND NOTORIOUS:
An
adverse possessor must possess land openly for the entire world to
see, as a true owner would. Secretly occupying another's lands does
not give the occupant any legal rights. Clearing, fencing,
cultivating, or improving the land demonstrates open and notorious
possession, while actual residence on the land is the most open and
notorious possession of all. The owner must have actual knowledge of
the adverse use, or the claimant's possession must be so notorious
that it is generally known by the public or the people in the
neighbourhood. The notoriety of the possession puts the owner on
notice that the land will be lost unless he or she seeks to recover
possession of it withing a certain time.
@17
EXCLUSIVE:
Adverse
possession will not ripen into title unless the claimant has had
exclusive possession of the land. Exclusive possession means sole
physical occupancy. The claimant must hold the property as his or her
own, in opposition to the claims of all others. Physical improvement
of the land, as by the construction of fences or houses, is evidence
of exclusive possession.
@18
HOSTILE:
Possession
must be hostile, sometimes called adverse, if title is to mature from
adverse possession. Hostile possession means that the claimant must
occupy the land in opposition to the true owner's right. One type of
hostile possession occurs when the claimant enters and remains on
land under color of title. Color of title is the appearance of title
as a result of a deed that seems by its language to give the claimant
valid title but, in fact, does not because some aspect of it is
defective. If a person, for example, was suffering from a legal
disability at the time he or she executed a deed, the
grantee-claimant does not receive actual title. But the
grantee-claimant does have color of title because it would appear to
anyone reading the deed that good title had been conveyed. If a
claimant possesses the land in the manner required by law for the
full statutory period, his or her color of title will become actual
title as result of adverse possession.
@19
CONTINUOUS
AND UNINTERRUPTED:
All
elements of adverse possession must be met at all times through the
statutory period in order for a claim to be successful. The statutory
period, or “statute of limitations”, is the amount of time the
claimant must hold the land in order to successfully claim “adverse
possession”.
The
plea of adverse possession is not a pure question of law but a
blended one of facts 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.
Adverse
possession is the word which implies that, it must be actual
possession of another’s land with intention to hold it and claim
it. It must commence with the wrongful dispossession of the rightful
owner at some particular time; it must commence in wrong and must be
maintained against right. It must be actual, open, notorious,
hostile, under claim of right, continuous and exclusive and
maintained for the statutory period.
@20
MERE
POSSESSION AND LONG POSSESSION – NO ADVERSE POSSESSION:
In
the case of Annakili v. A. Vedanayagam reported in AIR
2008 SC 346: Claim by adverse possession has two elements :
(1) the possession of the defendant should become adverse to the
plaintiff; and (2) the defendant must continue to remain in
possession for a period of 12 years thereafter. Animus possidendi as
is well known is a requisite ingredient of adverse possession. It is
now a well settled principle of law that mere possession of the land
would not ripen into possessory title for the said purpose. Possessor
must have animus possidendi and hold the land adverse to the title of
the true owner. For the said purpose, not only animus possidendi must
be shown to exist, but the same must be shown to exist at the
commencement of the possession. He must continue in said capacity for
the period prescribed under the Limitation Act. Mere long possession,
it is trite, for a period of more than 12 years o even for 100 years
is not adverse possession without anything more do not ripen into a
title.
In
the case of Ganpat Janu Wagh v. Vanmala Rambhau Sanap,
reported in 2014(4) Mh.L.J. 308, it has been
held that, non-user of property by the owner even for a long time
would not effect title of the owner unless claimant to adverse
possession has asserted hostile title in denial of title of true
owner peacefully, openly, continuously a period of 12 years or more.
@21
PRINCIPLE
OF TACKING:
Constitution
Bench of the Supreme Court has held in case of Gurbinder
Singh & another Vs. Lal Singh & another reported
in AIR
1965 SC 1553,
to tack means “to fasten”, “to stitch together”, “to annex”
or “to append”. In view of the principle of tacking if someone
derives a title from a person in adverse possession he can tack the
period of adverse possession enjoyed by earlier person so as to
complete his title as an owner by adverse possession for a total
period of 12 years. Thus, a person can usefully claim for the purpose
of his adverse possession even the adverse possession of his
predecessor from whom he derives right. However, a trespasser cannot
tack adverse possession of earlier trespasser, since second
trespasser does not derive possession from earlier trespasser.
@22
IMPORTANT
JUDICIAL DICTUM:
Kshitish
Chandra Bose -Vs- Commissioner of Ranchi,
AIR
1981- SC- 707:
All
that the law requires is that the possession must be open and without
any attempt at concealment. It is not necessary that the possession
must be so effective so as to bring it to the specific knowledge of
the owner. Such a requirement may be insisted on where an ouster of
title is pleaded, but that is not the case here.” It was also
clarified in a series of decisions that while possession shall be
open and exclusive and in assertion of one’s own right, fact that
the possessor did not know who the real owner was, will not make his
possession any the less adverse.
Vidya
Devi alias Vidya Vati -Vs- Prem Prakash & Ors.,
AIR
1995 SC 1789,
Hon'
Apex Court held in Para 21 and 22 as under:-
“21.
The legislature has not prescribed any period of limitation for
filing a suit for partition because partition is an incident attached
to the property and there is always a running cause of action for
seeking partition by one of the co-sharers if and when he decides not
to keep his share joint with other co-sharers. Since the filing of
the suit is wholly dependent upon the will of the co-sharer, the
period of limitation, specially the date or time from which such
period would commence, could not have been possibly provided for by
the legislature and, therefore, in this Act also a period of
limitation, so far as suits for partition are concerned, has not been
prescribed. This, however, does not mean that a co-sharer who is
arrayed as a defendant in the suit cannot raise the plea of adverse
possession against the co-sharer who has come before the Court as a
plaintiff seeking partition of his share in the joint property.
@23
22.
Normally, where the property is joint, co-sharers are the
representatives of each another. The co-sharer who might be in
possession of the joint property shall be deemed to be in possession
on behalf of all the co-sharers. As such, it would be difficult to
raise the plea of adverse possession by one co-sharer against the
other. But if the co-sharer or the joint owner had been professing
hostile title as against other co-sharers openly and to the knowledge
of other joint owners, he can, provided the hostile title or
possession has continued uninterruptedly for the whole period
prescribed for recovery of possession, legitimately acquire title by
adverse possession and can plead such title in defence to claim for
partition.”
Karnataka
Board of Wakf Vs. GOI, (2004) 10 SCC 799:
In
the eye of 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 rights over it and the person having title
omits or neglects to take legal action against such person for years
together. “The process of acquisition of title by adverse
possession springs into action essentially by default or inaction of
the owner”. essential requisites to establish adverse possession
are that the possession of the adverse possessor must be neither by
force nor by stealth nor under the license of the owner. It must be
adequate in continuity, in publicity and in extent to show that the
possession is adverse to the paper owner.
Amrendra
Pratap Singh -Vs- Tej Bahadur Prajapati, 2004 (10) SCC 65:
@24
The
process of acquisition of title by adverse possession springs into
action essentially by default or inaction of the owner.
P.
T. Munichikkanna Reddy v.Revamma, AIR 2007 SC 1753:
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.
There should be the ‘intention to possess’ and ‘intention to
dispossess’ as both these concepts are correlative to each other.
The animus possidendi involves the intention, in one’s own name and
on one’s own behalf, to exclude the world at large, including the
owner with the paper title if he be not himself the possessor, so far
as is reasonably practicable and so far as the processes of the law
will allow. However the ignorance of the owner will not prevent the
accrual of a title by prescription. The possession must be open and
hostile enough to be capable of being known by the parties interested
in the property.
Hemaji
Waghaji vs. Bhikhabhai Khengarbhai, AIR 2009 SC 103:
@25
The
Hon'ble Supreme Court observed that the law of adverse possession
which ousts an owner on the basis of inaction within limitation is
irrational, illogical and wholly disproportionate. It is also
observed as:
“Before
parting with this case, we deem it appropriate to observe that the
law of adverse possession which ousts an owner on the basis of
inaction within limitation is irrational, illogical and wholly
disproportionate. The law as it exists is extremely harsh for the
true owner and a windfall for a dishonest person who had illegally
taken possession of the property of the true owner. The law ought not
to benefit a person who in a clandestine manner takes possession of
the property of the owner in contravention of law. This in substance
would mean that the law gives seal of approval to the illegal action
or activities of a rank trespasser or who had wrongfully taken
possession of the property of the true owner.
We
fail to comprehend why the law should place premium on dishonesty by
legitimizing possession of a rank trespasser and compelling the owner
to loose its possession only because of his inaction in taking back
the possession within limitation.
In
our considered view, there is an urgent need of fresh look regarding
the law on adverse possession. We recommend the Union of India to
seriously consider and make suitable changes in the law of adverse
possession. A copy of this judgment be sent to the Secretary,
Ministry of Law and Justice, Department of Legal Affairs, Government
of India for taking appropriate steps in accordance with law.”
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