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Legal Framework in India – Statue and Precedents

Limitation Act, 1963

The statute governing the concept of adverse possession in India is primarily the Limitation Act, 1963 which contains 32 Sections (including repealed) and a Schedule (Periods of Limitation). The schedule of the Act of 1963 sets out the period of limitation in the articles for different types of cases.

The purpose of the law of limitation is to create awareness among individuals regarding their responsibility to assert their rights or claim an interest in a property within a specified and predetermined period. It is important not to neglect or overlook one’s rights for an extended period. Without a time limit imposed by the law, there would be potential for disorder or confusion in asserting rights or interests in a property.

As per Section 2 (j) of the Limitation Act, 1963, “period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act.

Further, Section 3 of the Limitation Act, 1963 sets a bar on limitation and states that “subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.”

So far as adverse possession is concerned, Article Nos. 64, 54, 110, 111, and 112 of the Schedule of the Limitation Act, 1963 are relevant and are set out as under:-

Therefore, to substantiate, according to Section 3 of the Limitation Act of 1963, the Court cannot consider a lawsuit if it is time-barred, regardless of whether the defendant raises the defense of limitation or not. It is important to note that this provision only bars the legal remedy available to the person filing the suit, not their underlying rights protected by the law. However, there is an exception to this rule under Section 27 of the Limitation Act, 1963, as per which, if a person fails to take any action to recover possession of the property within the prescribed time limit, their rights are extinguished. Thus, in a scenario where a person fails to take any action to regain possession of land within the specified period of 12/ 30 years, as mentioned in the articles above, and as the case may be, their rights are extinguished, leaving the land in a state of uncertainty. However, the principle behind the law of adverse possession is that land cannot remain in a state of abeyance for an extended period, as mentioned earlier. Therefore, someone has to be the rightful owner of the land when the original owner loses their rights due to inaction as stipulated in Section 27 of the Limitation Act, 1963. In this situation, the person in adverse possession of the land becomes the rightful and absolute owner of the land according to the relevant articles in the schedule of the Act.

To acquire ownership of land through adverse possession, one must adhere strictly to the legal requirements, which can significantly affect land ownership rights. The claim of adverse possession involves a combination of legal principles and factual evidence. It is firmly established that for a party to establish title based on adverse possession, they must explicitly raise the plea and present sufficient evidence supporting it.

 Judicial Precedents

There have been numerous judgments passed by the Hon’ble Supreme Court and several High Courts about the doctrine of adverse possession. It is a concept that has a significant impact on a country like India, and the law has developed over the years rendering clarification amongst others.

The concept of adverse possession was well settled by the judicial committee of the Privy Council in 1907 in Perry v Clissold (1907) AC 73, at 79 wherein it was held:-

 “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 the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. “

Although not legally binding on the Supreme Court, the principle has been affirmed by the Apex Court in the case of Nair Service Society v K.C. Alexander as reported in AIR 1968 SC 1165.

The Hon’ble Supreme Court observed the following in Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779:-

“11. 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. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567] .) 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. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128] .]”

Thus, the owner’s title to the property remains unaffected even if they do not actively use it for an extended period. However, the situation changes when another individual takes possession of the property and asserts their rights over it, and the rightful owner fails to initiate legal action against them for a prolonged period.

Further, the Hon’ble Supreme Court observed the following in T. Anjanappa v. Somalingappa, (2006) 7 SCC 570:-

“20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. 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.”

 Further, the Hon’ble Supreme Court observed as under in Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316:-

“14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter.”

“15.Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.”

While the doctrine of adverse possession developed by way of judicial precedents, the Hon’ble Supreme Court in the case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517 held the following with respect to the practice of adverse possession observing that there is a need to have a fresh look at the same:-

“32. 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.”

“33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation.”

“34. In our considered view, there is an urgent need for a 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.”

 Subsequently, the Hon’ble Supreme Court in another case, i.e., State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 directed the Government of India to take appropriate steps concerning the law of adverse possession and observed as under:-

“43. It is our bounden duty and obligation to ascertain the intention of Parliament while interpreting the law. Law and justice, more often than not, happily coincide, only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious relook is absolutely imperative in the larger interest of the people.”

“44. 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. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.”

“45. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No government department, public undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.”

“46. In our considered view, there is an urgent need for a fresh look on the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments 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.”

The Hon’ble Supreme Court in the case of Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324 relying upon the observations of the Court in State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 and of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517 held as follows:-

“22. In light of the above observations of this Court, we find that there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property. This would be in clear violation of the basic rights of the actual owner of the property. There is nothing on record to show that the defendants’ permissive possession over the property became adverse to the interest of the real owner, at any point of time. On the contrary, the records reveal that the permissive possession of the defendants continued till the filing of the suit.”