LAW OF ADVERSE POSSESSION : THE PROGRESSION                       

–Adv Shweta Sharma   

Brief History :        

The doctrine of acquisition of title by adverse possession is deeply rooted in our system of jurisprudence. The doctrine is derived from the Roman Law concept of usucapio and longi temporis praescriptio, but in Roman Law, there was an added requirement that the possession must be bona fide and for justa causa. English law has not insisted on the requirement of justa causa. The U.K. Law Reform Committee has defended the doctrine by observing that "certainty of title to land is a social need and occupation of land which has long been unchallenged should not be disturbed." Thus, the English version is just the opposite of the Roman concept.

When a person in England enters into possession in a bona fide manner and with "justa causa", he would not be able to perfect his title. When the inequity of the position resulting from the interpretation of the word "adverse" was argued in England before Harman, J., (as he then was), in ‘Bridges v. Mees, (1957) 1 Ch 475 (481): (1957) 2 All ER 577’ and he had interjected as under:

"You are worse off when you enter lawfully"

To this, the reply from the Bar was—"Yes, often; the case is by no means as startling as it sounds, because one has a comparable situation in detinue."

Under the Limitation Act 1908, the residuary Article 144 provided that the plaintiff suing on the basis of title had to establish not only his title, but also a subsisting one, i.e., the plaintiff had to establish that he was in possession of the property within 12 years of filing of the suit. Thus, in a suit for possession of the immovable property or any interest therein the onus did lay upon the plaintiff to prove his subsisting title to the property. Moreover, there was no clear distinction between the operation of Art 142 for filing of suits for possession based on previous possession and Art 144, for filing of suits based on title and previous possession. 

The Law Commission of India in its Report No. 3 on the Act of 1908, reverting, to the text of Article 65, examined the articles relating to possession in great detail. There was a preliminary observation that Articles 142 and 144 had introduced a good deal of confusion in the law relating to suit for possession by the owners of property. The law Commission also discussed the Privy Council case of ‘Agency Company v. Short, (1888) 13 AC 793 (PC)’ on the subject, which had settled the proposition that the rule of prescription (Art 65 read with Sec 27 of Limitation Act) should be applied not to cases of want of actual possession by the plaintiff, but to cases where the plaintiff had been out of possession and another person was in possession for the prescribed time. The Commission then made the following recommendation in para No. 35.17 on the subject:

"In our opinion, Article 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seeks protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff’s prior possession no doubt entitles him to protection against a trespasser, though not against the true owner. The true owner's entry would be a rightful entry and would interrupt.”

The amended Art 65 of Limitation Act 1963, lays down that the suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when possession of the defendant becomes adverse to the plaintiff. Thus, the plaintiff under Art 65 has to prove his title, while the onus lies on the person claiming title by way of adverse possession to prove all the elements necessary to prove his prescriptive title, adverse to the true owner.

In ‘Nair Service Society Ltd vs Rev. Father K. C. Alexander & Ors, AIR 1968 SC 1165’ the Court said that, Article 64 contemplates suit by persons based wholly and solely on the strength of previous possession of plaintiff and is independent of position of plaintiff as owner, mortgagee, lessee etc. In suits based on possession the plaintiff's legal status is irrelevant. Such suit can be filed by owners-mortgagees not qua owners or mortgagees and also by trespassers. On the contrary, if plaintiff wants to assert and vindicate his right to possession qua owner, mortgagee, lessee etc. he must prove his title as such and his suit would fall under Article 65. In a suit governed by Article 64 if the defendant can prove a better title, the suit will fail but otherwise it may be decreed. In other words, a person having trespasser title over property for which he has only to prove his previous possession and dispossession, it would be governed by Article 64.

Meaning and Essentials of Law of Adverse Possession

The expression “adverse possession” means a hostile possession, that is, a possession which is expressly or impliedly in denial of the title of the true owner. A person claiming title by adverse possession has to prove three "nec" − nec vi, nec clam and nec precario, i.e., 'without force, without secrecy, without permission'. In other words, he must show that his possession is adequate: in continuity, in publicity and in extent. In S.M. Karim vs. Bibi Sakina [1964] 6 SCR 780, Hidayatullah, J. (as he then was) observed thus:

"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."

In ‘Kshitish Chandra Bose v. Commissioner of Ranchi, (1981) 2 SCC 103’ a three−Judge Bench of Supreme Court clarified the point of possession being adequate “in publicity” and very succinctly explained 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 so as to bring it to the specific knowledge of the owner.” 

Mere Possession or Adverse Possession

In a suit for declaration of title under Art 65 of Limitation Act, mere pleading possession for more than 12 years does not give a prescriptive title to the possessor. The plaintiff has to clearly plead and prove as to when did his possession become adverse to the owner and when did the possession ripened into the prescriptive title. The Court before declaring a squatter, prescriptive owner of the property by virtue of Sec 27 and Art 65 of Limitation Act, would clearly examine the evidence regarding the nature of possession exercised by the squatter, i.e., it should be open, peaceful and continuous, to the exclusion of the true owner and without there being any interruption in the possession of the squatter on account of any action of the true owner. The person claiming adverse possession also has to prove that his possession is hostile to the true owner, i.e, he did not enter upon the property in a lawful manner or under the authority of the true owner (Karnataka Board of Wakf vs Govt. of India and ors (2004) 10 SCC 779). Thus, it is the blatant inaction on part of the true owner which is penalized by the Court, rather than rewarding the misdoings of the squatter. The Court honours prescriptive possession of the person who occupied the property for a specified time, cared for it and produced something of importance of the society. A suit based merely on previous possession would fall under the purview of Art 64 of the Limitation Act and an action may be brought on dispossession under Sec 5 of Specific Relief Act with six months from the date of dispossession, even against the true owner. An action under Art 64 of Limitation Act may be brought within 12 years of dispossession and the defendant may set up a plea of title against the plaintiff, which is not allowed under Sec 6 of Specific relief Act.

Adverse Possession “a Sword or only a shield”

The Law of Adverse possession came under scathing remarks from the Supreme Court in the case of State of Haryana vs Mukesh Kumar (2011) 10 SCC 404, AIR 2012 SC 325. The Hon’ble Supreme Court observed that the right to property is now considered to be not only constitutional or statutory right but also a human right and that even adverse possession has to be read in that context. The Court referring to the American and English Courts developments in the Law of adverse possession used such terms as “illogical and disproportionate” and “draconian for the owner and windfall for the squatter”. The Court also directed the legislature to at least abolish the “bad faith” adverse possession, to have a serious thought to the Law of adverse possession as it stands today or to at least increase the limitation period to 30 or 50 years for acquiring prescriptive title.

The Supreme Court in Gurudwara Sahib vs Gram Panchayat Village Sirthala and another (2014)1 SCC 669 summed up the Law of adverse possession, holding that no declaration of title can be sought by a plaintiff on the basis of adverse possession inasmuch as adverse possession can be used as a shield by a defendant and not as a sword by the plaintiff. The Court referred to the Punjab and Haryana High Court Judgement of Gurudwara Sahib Sannauli v. State of Punjab (2009) 154 PLR 756 and without discussing the Law of adverse possession in detail, opined that there is no quarrel with the proposition to the extent that suit cannot be based by the plaintiff on the basis of adverse possession. The Court also made a reference to the IIIrd column of the Art 65 and observed that the terms used in IIIrd column is “when the possession of defendant becomes adverse to the plaintiff” and inferred that the law of adverse possession may be set up only as a defense and plea of title on the claim of adverse possession is not available to the plaintiff. 

This approach and line of reasoning had been followed by the Courts till the recent judement of the Supreme Court in the case of Ravinder Kaur Grewal vs Manjit Kaur 2019(8) SCC 308 decided on 7.08.2019. In this judgement the three Judge bench of Arun Mishra, SA Nazeer and M.R. Shah, JJ, held that the Article 65 of Limitation Act may be used not only as shield but also as a sword. The Supreme Court in a 60 page long judgement tracked the development of Law of adverse possession and rejected the approach of the Court in case of Gurdwara Sahib case holding “that it was based on inferential process of interpretation because of the language used in IIIrd column of Art 65 of Limitation Act, which is not allowed at all. It does not follow from the language used in the statute.

There is absolutely no bar for the perfection of title by way of adverse possession whether a person is suing as the plaintiff or being sued as a defendant.” The Court also held that “There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse possession to sue, to evict a person or to protect his possession and plethora of decisions are to the effect that by virtue of extinguishment of title of the owner, the person in possession acquires absolute title and if actual owner dispossesses another person after extinguishment of his title, he can be evicted by such a person by filing of suit under Article 65 of the Act.” 

In the end…

The view of Hon’ble Supreme Court in previous cases had been in consonance with the judgement in the case of Ravinder Kaur Grewal. Supreme Court in “Amrendra Pratap Singh vs Tej Bahadur Prajapati and ors (2004) 10 SCC 65” and many other cases have laid down that by virtue of Sec 27 of Limitation Act, at the determination of period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. When title to property of previous owner is extinguished, it passes onto the possessor and the possessory right gets transformed into ownership. Sec 27 is an exception to the well accepted rule that limitation bars only remedy and does not extinguish title. Art 65 coupled with Sec 27 of Limitation Act bestows prescriptive title upon the adverse possessor and he may avail any remedy for filing of suit under the provisions of Specific relief Act or any other provisions of the Law to safe guard his title and interests in the property, but he may have to prove his title by leading strong evidence through which an irresistible inference may be drawn by the Court about his possession to have ripened into title.