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(2007) 4 LW (JS) 2
Law of Adverse Possession in India — Recent Trends Unsettling the Law
LAW OF ADVERSE POSSESSION IN INDIA — RECENT TRENDS UNSETTLING THE LAW

by
S.A. Kader*
Ever since the decision of Their Lordships of the Judicial Committee of the Privy
Council in Corea v. Appuhany [1912 AC 230], the essential requisites to establish
acquisition of title to immovable property by adverse possession are nec vi, nec clam
and nec precario. Nec vi means neither by force, nec clam neither secretly and nec
precario neither by licence or permission. Possession of the adverse possessor must be
neither by force nor stealth nor under licence of the owner. It must be peaceful, open
and continuous, adequate in publicity and in extent and in continuity. Animus
possidendi is also a necessary ingredient for the acquisition of title by prescription. The
adverse possessor must have the intention to hold the property as of right, in his own
right and on his own behalf as owner, hostile to and in denial of the title of the real
owner. The inevitable and inseparable ingredients to perfect title by adverse
possession are corpus possessendi and animus possidendi continuously for over the
statutory period. Adverse possession commences in wrong and is maintained against
right. The Judicial Committee has repeatedly laid down the essential requisites for
acquisition of title by adverse possession in several decisions, of which reference may
be made to the following:—
Radhamani Debi v. Collector of Khulna [27 I.A. 136 : ILR 27 Cal 943];
Secretary of State v. Debendra Lal Khan [61 I.A. 78 : 1934 PC 23];
Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore [62 I.A. 40 : AIR 1935 PC 36];
Page: 3
Ejas Ali Kquidwai v. Special Manager, Court of Wars [AIR 1935 PC 53 : (1935) 41 L.W.
242].
2. In Ittappan v. Manavikarma [ILR 21 Mad 153], it has been held that adverse
possession refers to (i) actual and exclusive possession; (ii) coupled with intention to
hold as owner; and (iii) accompanied by such an invasion of right of the true owner as
gives the latter a cause of action to sue for recovery of possession. In other words, the
possession of disseisor must be open and hostile enough to be capable of being known
by the parties interested in the property so that the legal claimant should, by due
diligence, be able to know of the open and hostile claim exercised by the possessor
without any attempt at misrepresentation or concealment. As pointed out by a Bench
of the High Court of Madras in Sivasubramaniya v. Secretary of State for India in
Council [ILR 9 Mad 285],
“By juridical possession, we understand, that a person stands in such relation to a
particular thing that he has in fact dominion over it and when he and those under
whom he claims, have in fact exercised this dominion from time immemorial or for
the period fixed by law of prescription, he becomes the legal owner of the thing,
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unless private ownership in it is forbidden by law and on that account is rendered

legally impossible.
Physical possession is a pure matter of fact and there is nothing peculiar about it,
but in order that it may generate ownership, it is necessary that the possessor
should hold the thing exclusively for himself as owner.
The exclusive holding is a physical fact and when it is united with the intention to
hold for himself as owner, it becomes such as will generate a title by prescription.”
3. It is not the law in this country for acquisition of prescriptive title that the
adverse possession of the disseisor should be known to or brought to the notice of the
real owner. In Secretary of State v. Debendralal Khan [AIR 1934 PC 23], Lord
Macmillan, speaking for the Board, observed:—
“The classic requirem at is that possession should be nec vi, nec clam and nec
precario. Mr. Dunnie for the Crown appeared to desiderate that adverse possession
should be shown to have been brought to the knowledge of the Crown, but in Their
Lordships' opinion, there is no authority for this requirement. It is sufficient that the
possession be overt and without any attempt at concealment, so that the person
against whom time is running ought, if he exercises due vigilance, to be aware of
what is happening. If the rights of the Crown have been openly usurped, it cannot
be heard to plead that the fact was not brought to its notice. The Limitation Act is
indulgent to the Crown in one respect only namely, in requiring a much longer
period of adverse possession than in the case of a subject; otherwise there is no
discrimination in the statute between the Crown and the subject as regards
Page: 4
the requisites of adverse possession. It may be added that it is not necessary in order
to establish adverse possession that the proof of such possession should cover every
moment of the required period.… [emphasis supplied]
The aforesaid decision of the Judicial Committee has been followed by Their
Lordships in a subsequent decision in Maharaja Srichandra Nandi v. Baijnath Jugal
Kishore [62 I.A. 40 : AIR 1935 PC 36]. In Secretary of State for India v. Veerarayan
[ILR 9 Mad 175 at 183], a Bench of the High Court of Madras, consisting of Sir Charles
A. Turner, Chief Justice and Mr. Justice Mutuswamy Iyer, has rightly pointed out, if I
may say so with respect, that ‘the ignorance of the owner will not prevent the accrual
of title by prescription’. Before a good title could accrue by adverse possession, the
possession must be so open, visible and notorious as to raise the presumption of
notice to the world that the right of the true owner was invaded intentionally with a
purpose to assert a claim of title adversely to his and was so patent that the owner
could not be deceived and was such that if he remained in ignorance it was his own
fault. [Jaganath v. Chandni Bivi — 26 C.W.N. 65]. If the claimant's possession has
been open and notorious, under a claim of title, it is sufficient in its character, whether
the true owner knows of it or not. It is not necessary that the adverse character of the
possession should be actually brought home to the true owner's knowledge. [Secretary
of State v. Bommadevara — 58 L.W. 689]. In Kuppusamy Naidu v. Kuppusamy Naidu
[AIR 1941 Mad 866 : (1941) 54 L.W. 502], the plaintiff was sentenced to
transportation for life and was undergoing imprisonment in Andamans for a period of
about nine years. He pleaded to exclude this period for counting adverse possession
against him. The court held that it was entirely immaterial whether the plaintiff was
voluntarily out of India or involuntarily so. The fact that he was not actually aware of
the fact that other persons were in adverse possession of the property was also
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irrelevant. The test is whether he exercised due vigilance and will not cover a case
where a person is so negligent of his own interest during his absence abroad as to
leave no one to look after his properties. In a subsequent decision which came up
before the High Court of Madras in Vaithialinga Gounder v. Kuppusamy Gounder [AIR
1963 Mad 137 : (1962) 75 L.W. 637], the learned counsel for the appellant urged that
the plaintiff was admittedly in Malaya from 1937 to 1956 for a period of about 19
years and contended that the plaintiff had no means of knowing about the alienation
during his absence and urged that the alienee derived no title from the plaintiff's
mother and the title so delivered could not be considered adverse to the plaintiff. The
learned Judge, following the decision of the Judicial Committee in Secretary of State v.
Debendra Lal Khan [61 I.A. 78 : AIR 1934 PC 23] rejected the contention. His
Lordship approved the decision in Kuppusamy Naidu v. Kuppusamy Naidu [AIR 1941
Mad 866 : (1941) 54 L.W. 502] and held that it was immaterial whether the plaintiff
was voluntarily
Page: 5
out of India or involuntarily so.
4. The question came up before Their Lordships of the Supreme Court In Kshitsh
Chandra Bose v. Commissioner of Ranchi [AIR 1981 SC 707] and a Three-Judge Bench
of the Supreme Court held that,
“All that the law requires is that the possession must be open and without any
attempt at concealment. It is not necessary that the possession must be so
effective as to bring it to the specific knowledge of the owner. Such a requirement
may be insisted on where an ouster of title is pleaded. But that is not the case
here.”
Only in cases where the original entry of the adverse possessor is permissive and in
cases of ouster by one co-owner of another, by the lessee of the lessor, by the licensee
of the licensor, by the mortgagee of the mortgagor or by the benamidar of the real
owner, the assertion of adverse and hostile title must be brought to the knowledge of
the true owner. It is not otherwise necessary that the real owner should have actual
knowledge of the adverse possession of another so long as it is open and capable of
being known by parties interested in the property. It is thus well settled that
knowledge on the part of the person whose rights are invaded is not an essential
ingredient for acquisition of title by adverse possession.
5. It is not necessary that the adverse possessor should know the real owner and
the plea of adverse possession must be raised only against such a specific person. In
Rustomji on ‘Law of Limitation’ 5th Edition Volume 2 page 1381, there is a reference
to two opposing doctrines — one insisting on the animus to acquire title by adverse
possession as against the true owner and the other rests on possession in assertion of
one's own right without reference to the true owner and says that the latter doctrine
appears to be true. This view has been accepted by a learned single Judge of the
Madras High Court in Pavadai alias. Selvaraj Chettiar v. Chinnadurai Padayatchi
[(1980) 93-LW-278] and it was held that where possession was open and exclusive
and in assertion of one's own title, the fact that the possessor did not know as to who
the real owner was and had no intention to claim title adversely to him, will not make
his possession any the less adverse. As held in Mulkraj v. Desraj [1974-Cur. L.J. 575],
it is not necessary that a plea of adverse possession should be raised against a specific
person. A party can well assert that he had been in actual physical possession of the
disputed property for the statutory period of 12 years without disturbance from any
outside source. The same view has been taken in Rajender Singh v. Dalbir Singh [AIR
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1998 HP 43]. In Raman v. Devadasa Muller [1999-1-Ker. L.J. 377] it has been held
that the person in possession of the property under the mistaken impression that he
himself is the owner of the property to the exclusion of all other persons is also in
adverse possession despite the fact that the identity of
Page: 6
the true owner is not known. The possessor who claims independent title need not be
aware that someone else is the owner and even if he is aware that he is not the true
owner he is not expected to make an enquiry as to who the true owner is. It is for the
true owner to keep his eyes open to protect his property against open invasion. It is a
well-settled position of law that where a person in adverse possession does not know
who the real owner is, when he holds the property without title for the statutory
period, he acquires the right of title by prescription as pointed out in M.
Krishnaswamy's Law of Adverse Possession, 13th Edition p. 140.
6. I shall now refer to an important decision rendered by Their Lordships of the

Judicial Committee of the Privy Council in Perry v. Clissold [1907 A.C. 73] which was a
decision in a case which came from New South Wales. There in that case, a certain
land which was in the possession of one F. Clissold was acquired by the State of New
South Wales under certain local Act and the question was whether F. Clissold, not
being the owner of the land, was entitled to the compensation. The real owner was an
unknown person who had not come forward to claim compensation within the time
allowed. The Judicial Committee held that F. Clissold was entitled to compensation.
Their Lordships observed:—
“It cannot be disputed that a person in possession of a 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 for ever extinguished and the possessory owner acquires an
absolute title.”
This statement of law has been approved and applied by a Three-Judge Bench of
the Supreme Court in Nair Services Society Ltd v. K.C. Alexander [AIR 1968 SC 1165].
The Hon'ble Mr. Hidayatullah, J. [as His Lordship then was], speaking for the Bench
observed:—
“The cases of the Judicial Committee are not binding on us. But we approve of the
dictum in 1907 A.C. 73. No subsequent case has been brought to our notice
departing from that view. No doubt, a great controversy exists over the two cases of
(1849) 13 Q.B. 945 and (1865) 1 Q.B. 1. But it must be taken to be finally resolved
by 1907 A.C. 73. A similar view has been consistently taken in India and the
amendment of the Indian Limitation Act has given approval to the proposition
accepted in 1907 A.C. 73 and may be taken to be declaratory of the law in India.”
(emphasis supplied)
The law so declared by the three-Judge Bench of the Supreme Court that the
adverse possessor can acquire prescriptive title even if he is unaware of the real
owner, it is respectfully submitted, is the law of the land under Article 141
Page: 7
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of the Constitution of India.
7. These are well-settled principles of law approved and applied by the courts in
this country and by the Judicial Committee for over hundred years ever since the
enactment of the Limitation Act IX of 1871 which dealt with both limitation and
prescription. However, some recent decisions have struck a discordant note tending to
unsettle the law.
8. In a very recent decision rendered by a Bench of the High Court of Madras in
P.S.M. Ahamed Abdul Kader v. T.A. Mohamed Abubaker [AIR 2002 Mad 213], it has
been held that,
“Even though the defendants have stated in their statement that they were in
possession of the suit property for more than the statutory period, they have not
indicated as against whom they were possessing the property adversely, when the
adverse possession started and when they perfected their title by adverse
possession. To prove adverse possession, one has to plead and prove that a
particular person is a true owner and he is holding the property in adverse
possession openly, continuously and uninterruptedly for more than 12 years. No
such particulars or plea had been made by the defendants and proved so as to
enable them to succeed on a plea based on adverse possession.”
The learned Judges have not cited any authority for the view expressed by them
that the disseisor, in order to perfect title by adverse possession, must know who the
true owner is and plead adverse possession against him. According to Their Lordships,
DW-1 had never spoken a word about adverse possession in his evidence and it is
mainly on this ground the court has refused to accept the plea of adverse possession
set up by the defendant.
9. In T. Anjanappa v. Somalingappa [(2006) 7 SCC 570 : 2007-2-L.W.955], the
two-Judge Bench consisting of Their Lordships Arijit Pasayat and Lokeswar Singh
Panta, JJ., has observed that,
“The High Court has erred in holding that even if the defendants claimed adverse
possession, they do not have to prove who is the true owner and even if they had
believed that the Government was the true owner and not the plaintiff, the same
was inconsequential. Obviously the requirement to prove adverse possession has
not been established. If the defendants are not sure who is the true owner, the
question of being in hostile possession and the question of denying the title of true
owner does not arise.”
In this decision also, Their Lordships of the Supreme Court have not relied upon any
authority for the view expressed by them that the adverse possessor must know the
true owner and plead adverse possession only against him. In conclusion, Their
Lordships have pointed out that the first Appellate Court has
Page: 8
categorically found that the appellants in the appeals before the Supreme Court had
proved possession three years prior to the filing of the suit and this finding has not
been upset and therefore the High Court was not justified in setting aside the first
Appellate Court's order. Evidently, the appeal has been allowed by the Supreme Court
on the finding that the appellants were in possession of the property three years
before suit.
10. It is respectfully submitted that the view expressed by the learned Judges of
the Madras High Court in P.S.M. Ahamed Abdul Kader v. T.A. Mohamed Abubaker [AIR
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2002 Mad 213] and Their Lordships of the Supreme Court in T. Anjanappa v.
Somalingappa [(2006) 7 SCC 570 : 2007-2-L.W.955] are not based on any authority.
On the contrary, the decisions cited in paragraphs 5 & 6 above lay down the correct
principle of law that in order to acquire prescriptive title by adverse possession the
adverse possessor need not know who the real owner is and it is not necessary for him
to plead adverse possession against such a specific person. Unfortunately, the three-
Judge Bench decision of the Supreme Court in Nair Service Society's case [AIR 1968
SC 1165], approving of the dictum of the Judicial Committee in Perry v. Clissold [1907
A.C. 73] and taking it as ‘declaratory of the law in India’ has not been brought to the
notice of the learned Judges who have decided P.S.M. Ahamed Abdul Kader v. T.A.
Mohamed Abubaker [AIR 2002 Mad 213] and T. Anjanappa v. Somalingappa. [(2006)
7 SCC 570 : 2007-2-L.W.955] which is a decision of a two-Judge Bench of the Apex
Court. The aforesaid decisions viz., P.S.M. Ahamed Abdul Kader v. T.A. Mohamed
Abubaker [AIR 2002 Mad 213] and T. Anjanappa v. Somalingappa [(2006) 7 SCC
570 : 2007-2-L.W.955] it is respectfully submitted, are opposed to the law of India as
declared by the three-Judge Bench of the Supreme Court in Nair Service Society's case
[AIR 1968 SC 1165] and do not lay down the correct principle of law.
11. It may be pointed out that if acquisition of prescriptive title by a person in
adverse possession of the property not his own, for well over the statutory period is
not recognised in law as he does not know the real owner who has either migrated
from the country and settled down in a foreign land or is otherwise unknown or
unheard of, title to this property will remain in suspended animation for decades and
decades, and the policy and the object of law of Limitation will, be frustrated. The law
of Limitation is founded on public policy that an unlimited and perpetual threat of
litigation leads to disorder and confusion and creates insecurity and uncertainty.
Therefore, the Legislature has sought to balance public interest in providing limitation
on the one hand and at the same time not to unreasonably restrict the right of a party
to initiate proceedings on the other, as held in V.M. Salgaocar Khan v. Board of
Trustees for Port of Marma Goa [(2005) 4 SCC 613]. The statute of Limitation which
has been rightly termed
Page: 9
as the statute of repose, peace and justice, should not be allowed to become a statute
of uncertainty and insecurity.
12. In a very recent decision rendered by the Supreme Court in P.T. Munichik-kanna
Reddy v. Revamma [(2007) 4 MLJ 912(SC) : 2007-4-L.W.269], His Lordship S.B.
Sinha, J. speaking for himself and his learned brother His Lordship Markandey Katju, J.
has made an intrusive enquiry into the law of adverse possession with reference to the
right to property in the 21st Century, redefining the thresholds in the law of adverse
possession not just in India but also by the Strasbourg Court, the growth of human
right jurisprudence in recent times, rendering the right of property as not only a
constitutional or statutory right, but also a human right, so inviolable and sacred that
“no one may be deprived thereof, unless public necessity, legally ascertained,
obviously requires it and just and prior indemnity has been paid.” The learned Judge
commented that with expanding jurisprudence of European Courts of Human Rights,
the Court has taken an unkind view to the concept of adverse possession in the recent
decision in J.A. Pye (Oxford) Ltd. v. United Kingdom [(2005) ECHR 921]. The thrust of
the decision of Their Lordships in the case before them is that in order to acquire
prescriptive title by adverse possession, intention to possess is alone not sufficient,
there must be intention to dispossess the real owner. The learned Judge has observed,
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“At this juncture, it would be in the fitness of circumstances to discuss intention to

dispossess vis-à-vis intention to possess. This distinction can be marked very
distinctively in the present circumstances.
Importantly, intention to possess cannot be substituted for intention to dispossess
which is essential to prove adverse possession……”
13. It is respectfully submitted that this view of the law of adverse possession is
unsound and untenable. Where the intention of the adverse possessor to possess the
property in question peaceably, openly, continuously and exclusively as of right on his
own behalf adversely to and in denial of title of the true owner with animus to possess
is factually proved, his animus to dispossess the true owner is implied therein. The
expressions “intention to possess” and “intention to dispossess” are correlative to each
other. The one implies the other. The point is covered by a direct authority in Hamburg
Realty Co. v. Walker, [Mo. 327 S.W. 2d 155], cited in Mantha Ramamurthy's Law of
Adverse Possession, 4th Edition p. 127, where it is stated,
“Actual possession involves two things, a present ability to control the things
possessed plus an intention to exclude others from such control. Thus an intention
to exclude others from the control of property is one of the elements of actual
possession thereof.”
Page: 10
With due deference, it is submitted that the view that the intention to possess cannot
be substituted for intention to dispossess, as observed in P.T. Munichikkanna Reddy v.
Revamma [(2007) 4 MLJ 912(SC) : 2007-4-L.W.269] requires reconsideration.
14. Law is never static; it is always dynamic. But it is not dynamism to violently
break away from the established principles of law and make radical, bolt-from-the-
blue changes destabilising the law that has been in force for over hundred years.
———
*
Former Judge, High Court of Madras
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Page 1 Saturday, May 14, 2022

Law of Adverse Possession in India — Recent Trends Unsettling the Law

LAW OF ADVERSE POSSESSION IN INDIA — RECENT TRENDS UNSETTLING THE LAW

unless private ownership in it is forbidden by law and on that account is rendered

out of India or involuntarily so.

6. I shall now refer to an important decision rendered by Their Lordships of the

of the Constitution of India.

“At this juncture, it would be in the fitness of circumstances to discuss intention to

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