Adverse Possession; Essentials & Case Laws

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.

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.

  • 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.
  • 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 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.
  • “Animus possidendi” is one of the ingredients of adverse possession. Unless the person possessing the land has the requisite animus the period for prescription does not commence.
  • Claim of title to the property and adverse possession are in terms contradictory.

# Case Laws on Adverse Possession

# 1. Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779

Whether the plaintiffs-respondents could claim adverse possession, we need to hardly mention the well known and oft quoted maxim nec vi, nec clam, nec precario meaning thereby that adverse possession is proved only when possession is peaceful, open, continuous and hostile.

# 2. Saroop Singh v. Banto, (2005) 8 SCC 330

Where the Apex Court emphasised the importance of animus possidendi and observed that 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. 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.

# 3. Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639

Where the Apex Court observed that as regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.

# 4. Annasaheb Bapusaheb Patil v. Balwant (1995) 2 SCC 543

Where the Apex Court elaborated the significance of a claim to title viz.-a-viz. the claim to adverse possession over the same property. The Court said that where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.

# 5. P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59

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.

# 6. Rama Shankar v. Om Prakash Likhdhari, (2013) 6 ADJ 119

The Allahabad High Court has observed that 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) 43.

# Case Law Reference

  1. S.M. Karim v. Bibi Sakina, AIR 1964 SC 1254
  2. Parsinni v. Sukhi, (1993) 4 SCC 375
  3. D.N. Venkatarayappa v. State of Karnataka, (1997) 7 SCC 567
  4. Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma, (1996) 8 SCC 128
  5. Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak (2004) 3 SCC 376
  6. Mohd. Mohd. Ali v. Jagadish Kalita, (2004) 1 SCC 371
  7. Bangalore Development Authority Vs. N. Jayamma, (2016) 43 SCD 476