Adverse possession 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.
It is quite interesting to note that Section 27 of Limitation Act, 1963 is an exception to the general principle of law of limitation and is the genesis of Adverse Possession. As per the aforesaid section if a person fails to file suit for recovery of possession, within a period of limitation, his right to recover the possession of that property also extinguishes. Thus a genuine owner of the property in question shall then loose his ownership over the property. The property in question must also be then in the name of any other person or any other person must be entitled to have right over it. Adverse Possession therefore grows from such a scenario. If a person has possession over a property which is in reality in adverse to the interest of true owner of the property and true owner fails to file a suit for recovery of possession within a period of limitation, then such a person who is in possession adversely shall then become the owner of property in question by way of adverse possession.
It is said that in order to lay claim of ownership on the basis of adverse possession, it is to be proved that such adverse possession is open and uninterrupted to the enjoyment of the person claiming adverse possession for more than 12 years as contended in the case of M. Venkatesh & Ors. v. Commissioner, Bangalore Development Authority, (2015) 10 Scale 27. In the case of Karnataka Board of Wakf v. Government of India, (1995) 6 SCC 309 it was held that 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 also a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, which means “without force, without secrecy, without permission”. 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. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. 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. The same also being held in the case of Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma, (1996) 8 SCC 128.
As per Law of Pleadings by Mogha the adverse possession is one of the defence. The period limitation is 12 years against private land and 30 years against Government land and starts from the date when the possession of the defendant becomes adverse to the plaintiff. For adverse possession it is necessary for the person to admit the title of the real owner and to establish his open and hostile possession without any interruption. It is not sufficient to plead that a party has been in adverse possession for 12 years, it should be definitely alleged how and when adverse possession commenced. Such as the defendant has dispossessed the plaintiff and has been in possession continuously ever since, or the defendant has been open and continuously in possession for more than 12 years to the knowledge of the plaintiff, or the defendant has been in possession continuously for more than 12 years so openly that either the plaintiff was aware of his possession or ought to have been aware had he exercise due diligence.
With regard to limitation period applicable in terms of adverse possession it was held that in terms ofArticle 65 of the Limitation Act, 1963the 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 as contended in Saroop Singh v. Banto (2005) 8 SCC 330. The same being reiterated in Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376 by the Hon’ble Supreme Court also.
Another important ingredient in the concept of Adverse Possession is “Animus Possidendi”, which means that unless the person possessing the land has the requisite animus the period for prescription does not commence. Based on the plethora of judgments on the principles of law on this subject what is to be seen is not just whether the party is in possession, but whether the party has been in adverse possession for the statutory period of 12 years and whether that has perfected their title on the suit land.
On the same principles of law it was held in the case of Rama Shankar & Anr.v. Om Prakash Likhdhari & Ors., by the Hon’ble Allahabad High Court that:
“21. The principle of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation. The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in the East India Company v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies).
The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an ‘acquisitive prescription’. A prescription by which a right is extinguished is called ‘extinctive prescription’. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time.”
Recently the Hon’ble Supreme Court in the case of Ravinder Kaur Grewal vs manjit kaur Civil Appeal No.7764 of 2014 which was decided on 7th August 2019, held 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 the case of infringement of any rights of a Plaintiff.”
Therefore a Plaintiff can also take a plea of Adverse Possession in a suit for declaration of title and for recovery of possession. Adverse possession is one of the ways in which title to the land is acquired if certain ingredients are satisfied for establishment of the same. For applying the concept of Adverse Possession there should be continuous uninterrupted occupancy over the land. As per the Article 65 of the Limitation Act, 1963 the prescribed period is 12 years for private land and the prescribed period in case of Government is 30 years over the land which is to be considered for adverse possession. The starting point of limitation begins from hostility which would result in denial of title of the land to the real owner of the land. Onus for the same squarely is lies on the party which is showing Adverse Possession to set up the title on the basis of his/her continuous and uninterrupted possession. However it is also quite quintessential to note that proving Adverse Possession cannot be based on presumption and probabilities but requires hard fact evidence.
The writer is a advocate practising at Supreme Court