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Adverse Possession - Sword Cum Shield
Adverse Possession - Sword Cum Shield
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Ingredients to qualify adverse possession
Theory of adverse possession is inherited from the common law concepts which is
approximately about 2000 years old. This has been considered as one of the harsh
facets of law but has been in vogue since time immemorial. The concept of adverse
possession is based on the principle that the possessor who maintains and improves
the land has more valid claim to the land than the owner who never visits or cares for
it. The person claiming adverse possession is required to satisfy three classic
requirements which should co-exist at the same time which are - nec vi, nec clam, nec
precario ie., peaceful, open and continuous. These requirements have been laid down
by the Privy Council as early as 1912 in the case of Corea v. Appuhany and thereafter
Courts in India.
There is no statute per se which defines the concept of adverse possession but the
Limitation Act, 1963 provides for the limitation to sue and extinguishment of rights in
this regard. The Act merely prescribes the period of limitation which is 12 years in
case of private lands and 30 years in case of Government lands. The law thus restricts
the right of the owner to recover possession within the fixed period (12/30 as the case
may be) beyond which his right expires. If the owner fails to assert his right within the
fixed period, upon the extinction of his right, another person who had been in
possession all these years acquires prescriptive right. The intention of the statute is
not to punish the owner who fails to assert his right in his property but to protect the
interest of the person who has maintained the property for such time, specified in the
statute. As per Section 27 of the Act, the right to property gets extinguished on the
expiry of period specified for instituting a suit for possession of property and thereby
The person who pleads adverse possession has no equities in his favour. He has to
plead and prove in unequivocal terms the essential ingredients of adverse possession.
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:
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(c) whether the factum of possession was known to the other party
Since the person pleading adverse possession 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.
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Story
Animus is also an essential aspect to prove adverse possession. The same can be
observed by reference to the judgment of Powell v McFarlane[2] wherein the Court had
held that "if the law is to attribute possession of land to a person who can establish no
paper title to possession, he must be shown to have both factual possession and the
requisite intention to possess". Mere possession does not ripen into possessory title
until possessor holds property adverse to the title of the true owner for the said
purpose.
'Only as a shield':
Earlier the Supreme Court in the year 2014, in Gurudwara Sahab v. Gram Panchayat
Village Sirthala[3] had ruled that the plea of adverse possession can be used only as a
shield by the defendant and not as a sword by the plaintiff. The Court specifically
stated that no declaration can be sought for on the basis of adverse possession as
such a plea can be raised only by the defendant. Therefore it was made clear that
although the possession of a person had ripened into ownership by virtue of adverse
possession, he cannot file a suit seeking for a declaration declaring his title based on
his prescriptive right and he could only use it as a defense. Thus the plea of adverse
possession is available only to the defendant as a defense against the plaintiff. This
legal proposition laid down in 2014 by the Apex Court was relied by the same Court in
State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj[4] and Dharampal (dead)
The Supreme Court once again rekindled the most contentious question of whether a
person claiming title by virtue of adverse possession can maintain a suit under Article
65 to Schedule I of Limitation Act, 1963 for declaration of title and for permanent
injunction in order to protect his possession and answered the same in affirmative in
the case of Ravinder Kaur Grewal vs Manjit Kaur and thereby over ruled the
proposition laid down earlier in the case of Gurudwara Sahab v. Gram Panchayat
Village Sirthala and the decision relying on it in State of Uttarakhand v. Mandir Shri
Lakshmi Siddh Maharaj and Dharampal (dead) through LRs v. Punjab Wakf Board.
Present position:
The Supreme Court in the case of Ravinder Kaur Grewal vs Manjit Kaur has elaborated
upon the contour of Article 65 to Schedule I of the Limitation Act, 1963. The Court
interpreted Column III of Article 65 of the Act by stating that there is absolutely no bar
for the plaintiff to file a suit for possession of immovable property or interest thereon
acquired by virtue of adverse possession. The IIIrd column of the Act reads as follows:
'when the possession of the defendant becomes adverse to that of the plaintiff'. The
Court gave an interpretation with a different dimension by stating that the column III
nowhere suggests that plaintiff who has perfected title on the basis of adverse
The Court had interpreted "for possession of immovable property or any interest
therein based on title" in the opening part of Article 65 to include title acquired by
plaintiff by way of adverse possession. The Court opined that once the right, title or
interest is acquired it can be used as a sword by the plaintiff as well as a shield by the
defendant within the ken of Article 65 of the Act and any person who has perfected
title by way of adverse possession, can file a suit for restoration of possession in case
of dispossession. The Court reiterated that neither possession as trespasser nor long
categorical terms that the plaintiff who has perfected title through adverse
possession can sue and maintain a suit. The Court further ruled that with respect to
encroachment in properties ear marked for public utilities, such rights should not
accrue and an exception must be carved out in the statute with respect to such
properties.
Parting remarks:
The Courts in general have been very critical about the concept of adverse
possession. This law is considered to be extremely draconian to the true owner and a
blessing to the dishonest person who has taken possession of the property. The law
impliedly favours the person who clandestinely acquires the property of the true
owner in contravention of the law. The Courts have at several occasions expressed
their disapproval of the law that legitimizes the possession of a rank trespasser
thereby compelling the owner to lose his possession only because of his inaction in
taking back the possession within the period of limitation. The Supreme Court in
Hemaji Waghaji v. Bhikhabhai Khengarbhai Harijan & Ors[6] and State of Haryana v.
Mukesh Kumar[7] severely deprecated the concept of adverse possession and in the
latter case opined that the Parliament must seriously consider at least abolishing "bad
trespassing.
emboldens the acts of rank trespassers and squatters in property. There were also
possession but also ensure that those who advance such claims are only those who
This law has always been frowned upon and considered that it necessarily needed a
re-look as it was archaic in nature. However the recent judgment of the Supreme Court
in Ravinder Kaur Grewal vs Manjit Kaur has put to rest the constant skepticism of the
concept being irrational and illogical. This clarification from the Apex Court in turn is
going to witness a sizable hike in the parties or rather encroachers approaching the
Court to assert their rights. Once, single edged, now a double edged arsenal, one
Supreme Court.
(The author is an Advocate practicing at the Madras High Court and may be reached
at indupriya4231@gmail.com)