Overview and evolution of law of adverse possession

By Utsav Mukherjee, Vidhii Partners

The concept of adverse possession relates to the process of acquisition of title by the person in possession of the property despite not being the owner. If the possessor remains in continuous possession of the property for 12 years with the knowledge but without the permission or interference of the owner, the title of the property vests in the possessor.

Adverse possession was defined by the Supreme Court in Amarendra Pratap Singh v Tej Bahadur Prajapati as: “A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.”

Utsav Mukherjee
Utsav Mukherjee
Vidhii Partners

In SM Karim v Mst. Bibi Sakina following the equitable principle of nec vi nec clam nec precario (without force, without secrecy, without permission), it was ruled that adverse possession must be adequate in continuity, in publicity and extent, and a plea is required, to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

The Limitation Act, 1963, lays down a limitation period of 12 years for suit of possession of immovable property or any interest based on the title. The period for limitation for the government, however, is 30 years by virtue of article 112. The law of adverse possession was judicially summed up by the Judicial Committee of the Privy Council in Perry v Clissold, where it was observed that if a rightful owner does not claim his right against a possessor within a given time, his ownership right stands extinguished and the same was approved by in Nair Service Society Limited v KC Alexander.

It was further clarified in Karnataka Wakf Board v Government of India that the question of adverse possession is a mixed question of fact and law as the trespasser needs to prove a continued possession of more than 12 years with animus possidendi (intention to possess) against the original owner. Further, the starting point of limitation commences when the defendants’ possession becomes adverse (Vasantiben Nayak v Somnath Muljibai and Ors).

However, the understanding of adverse possession has evolved in recent times and the Supreme Court has reiterated the need to take a fresh look. The Supreme Court, in PT Munichikkanna Reddy and Ors v Revamma, was guided by the judgement of the European Court of Human Rights (ECHR) in JA Pye (Oxford) Ltd v United Kingdom, which had critiqued the law of adverse possession and urged re-examination in light of changes in the law.

The Supreme Court in Hemaji Waghaji v Bhikhabhai Khengarbhai criticized the law and stated that it was irrational, illogical and wholly disproportionate. The court directed the Ministry of Law to take a fresh look at the law of adverse possession.

The then government tasked the Law Commission with preparing a consultation paper. While noting that the ECHR judgment was overturned, it stated that there was a need to strike a balance between the pros and cons of the law.

The court had further narrowed the scope for establishing a claim of adverse possession in Dagadabai v Abbas@Gulab Rustum Pinjari by ruling that the possessor must necessarily first admit the ownership of the true owner over the property and the true owner has to be made a party to the suit.

It was restricted further in Mallikarjunaiah v Nanjaiah where the court observed, “Mere continuous possession, howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.”

However, in the recent judgement of Ravinder Kaur Grewal v Manjit Kaur, the court held a contrary position that a plaintiff can file a suit for perfection of title by adverse possession. It also refuted the contention that there is no conferral of right by adverse possession.

The law of adverse possession is thus clearly in a state of judicial flux and requires decisive legislative action to settle the position. Considering the principles of adverse possession, the law needs to be retained. However, a period of 12 years is insufficient and does not conform to international statues or article 112 of the Limitation Act, 1963 itself. Thus, the period of limitation may be increased from 12 years to 30 years or so.

Utsav Mukherjee is a partner at Vidhii Partners.

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