Legal Blog: Adverse Possession : The Law

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Friday, December 10, 2010

Adverse Possession : The Law

Justice Prasad
The Supreme Court in Chatti Konati Rao & Ors. vs Palle Venkata Subba Rao has explained the underlying principles in cases pertaining to claims of Adverse Possession. The Bench speaking through Justice C.K. Prasad held as under;
"What is adverse possession, on whom the burden of proof lie, the approach of the court towards such plea etc. have been the subject matter of decision in a large number of cases. In the case of T. Anjanappa v. Somalingappa (2006) 7 SCC 570, it has been held that mere possession however long does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owner's title. Relevant passage of the aforesaid judgment reads as follows : 
"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."
13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in the case of Karnataka Board of Wakf vs. Government of India and Ors. (2004) 10 SCC 779. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. Paragraph 11 of the judgment which is relevant for the purpose reads as follows :
"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]"
14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said 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 12 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 12 years thereafter. Animus possidendi as is well known a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until possessor holds 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 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. Plea of adverse possession is not a pure question of law but a blended one of fact and law.

18 comments:

  1. thanks for it!
    vivek nandwana kota

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  2. Good Morning,
    I am doing a study on the "Adverse possession" I understand from the details that any land Government / private can be placed under this law. Also as mentioned that the rightful owners are aware of the land possession and do not do any thing. What happens if the owners use part of the land and leave the portion for the squatters to carry on their business. Does this weaken the position of the owners.
    I will be delighted to hear from you.
    Kind regards
    Neville Da Silva
    Mumbai

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  3. gr8 article.. thank you so much sir..

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  4. 1 The said law is existing all over the world as it reduces litigation due to the said parameters in the limitation act of India.
    2 If this law of adverse possession is changed or abolished it would be unconstitutional would undermine the honorable Parliament of India will and facilitate unnecessary litigation which were already barred by The limitation act of India ,
    3 it would also facilitate crime as criminals would be hired by the post owner’s who already lost there title by adverse possession to take possession from the current owner,
    4 it would also harass lacks of people/family’s in India who have bought properties on oral agreements , part agreements in olden days by just paying money and taking over possession due to High illiteracy rate buying property by virtue of receipt’s or just taking over possession not hiring advocates due to money shortage and just ending up making documents if at all which were not completely recognized , authorized by state and did not / were not entitled to get their names mutated in various government records as morally, constitutionally these transactions were genuine but were not documented as per the current law
    Due to above said reasons and foreseen circumstances and as time passed the said purchases/people who were in possession of their respected properties also perfected their title by adverse possession as the claimants as per the government records in every state of India already knew that they are no more owners/don’t have right over the said property as such in rural areas and in urban areas people/families are saved by the virtue of adverse possession “The Limitation Act 1968 “for illiteracy of their forefathers/their own illiteracy . This law is being practiced all over the world , also it is evident in the Indian Evidence Act the person in possession is primafaci the owner of the property More “The Concept of adverse possession exist to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land’ otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could came forward with a legal clam on the property “ ,but in India we still have this situation in rural parts and as well as in modern cities due to illiteracy, lakhs of legal knowledge y,money constraints etc as such The law of adverse possession by the virtue of The Limitation act of India 1968 DON’T NOT WARRANT ANY CHANGE

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    Replies
    1. Sir - The views you have expressed are very just and very wise especially in India where most of the people are literally illiterate and not just legally illiterate.People sell and buy properties in good faith and any any attempt to abolish this Law by a few short sighted people sitting in power will create a chaos and destroy Human relations by encouraging some people to legally destroy the lives of their fellow people just because they did not have the common sense or access to legal advice to have their property properly documented and registered - in the Government Land registration Offices where corruption is so ripe that it is a menace rather than service to the people. Hope your views will open the eyes of the short sighted who do not see the spirit and merits of the Law just because some people seem to misuse it.

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  5. Thanks to the learned lawyers for enlightening us on adverse possession. True title owners are facing harassment from tenants and hostile occupants in the whole of India. Due to this illogical and immoral law criminal and anti social elements are taking gullible landowners for a ride. Is is high time the Government of India should seriously consider making necessary amendments to the law on adverse possession infact it should be scrapped.

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  6. Well, the law of adverse possession is too good. It prevents the bribe takers who have millions and own multiple empty houses. Most of the multiple property owners have become rich by illegal means. Most of them being politicians, government officers, etc. who even buy houses in someone else name and then sell at huge profit. Common man is left without a house as the real estate rates have skyrocketed due to illegal practices. Common man should take the benefit of this law to dispossess the rich owners who have black money and have many empty houses.
    The adverse possession law also helps in making original registration papers of the property through the court decree, which would have been a nightmare otherwise, looking at the state of affairs of the property registration department.

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  7. Thanks for the the information.

    Please can someone clarify the position for land which has been occupied by the government or one of its depts illegally and without acquisition while the title of the owner and non acquisition is proven by one of the government departments.

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  8. Dear Sir,

    My Mother's grandfather lands in 1956 registered (3 survey numbers) are illegally occupied by others in that area, as she is the only daughter to her father both her parents died at her age of 7 and even her grand father died next year no one to ask on her side they occupied it and created a document saying that my mother's guardian (not from her father side) has sold that property in 1971 (my mother age 11 yrs) and even said that her grand father took debt of 200 rupees with no document proof and they occupied the lands. As my mom is an orphan with no support she dint find any help.After getting married she came to other place and she went to ask about that land in 2002 they had shown those fake documents and even changed the Adangal in their name. Even my mom lost my dad and sister after going there so she stopped fighting with them but now I am trying to fight on this issue. Will it come into Adverse Possession. What is my mother position? which type of suit she has to file? We are no way getting help from anyway. Please suggest me how to proceed with this issue.

    Regards,
    Shanthi

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  9. some one pls help me how to claim adverse possession on forest land

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  10. Very valuable information indeed.

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  11. I am tenant of Godown from 1976 owner A died in 1997 than some B one transfer it by way of poa but such poa not available with registrar but after registered document in favour of B he produced forged NOC of Mr "A's family than after short term he sold this property to C in 1997 all A B C has not inform or demanded rent or passetion until 2010 than C sold this to D in 2010 no body inform about ownership change nor demanded rent until mid of 2011 in 2011 D given notice for rent and vacent possession file civil case D having , 5 more Godown in same area may i Demand for Adverse possession ? Reply

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  12. Nobody there who guide me ? I have only one commercial property which is this

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  13. i am a Muthvalli of Dargah janda possessing 248.95 sq.mt.of land in front of railway station in my city.in 1995 i have filed a suit on the municipal corporation and claimed adverse possession. the municipality admitted that the land is in the possession of dargah janda and further 16 sq.yards on the south and 16 sq.yards on the north was given by the municipal counsil in the year 1956, Thus it is proved that the darga janda people/committee are in possession. But in the month of July 2016 the municipality without giving any notice and without following the land acquiring law, demolished the 11 shops and the entire darga janda and laid road, over night, thus trespassed and occupaied, what is the remedy to the dargah janda committee. please advise, thankyou

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  14. Thanks! I’m glad to hear it was helpful!

    http://www.realtyshield.in

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  15. This is very useful for all. Thanks for sharing with us. Good to know
    Low budget flats for sale in Chennai

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  16. My father took land from govt. To do some social activity.it has been more than thirty years since we hve been in the lab and have invested money time. We did not form a trust or anything. Can we claim adverse possession on it?

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