Adverse Possession

by Alpana sharma


Adverse Possession

This project is focused on the case analysis of the Adverse Possession. Before moving on to the cases it is necessary to understand the meaning of the word “Possession” which according to the Oxford Dictionary means- The state of having or owing something for a particular time. In general, the possession signify, physical detention coupled with intention to hold the things detained as one’s own to the exclusion of others. So, we can say that possession consist of two elements: (a) Physical control or power over the object possessed called corpus. (b)Intention or will to exercise that power called animus.

Adverse possession, is the possession of property by a person which is adverse to every other person having, or claiming to have a right of possession by virtue of a different title. The law of prescriptive rights is best summed up by the Brocard, ‘nec vi, nec clam, nec precario’, indicating the acquisition of a right by prescription must be in circumstances that exclude ‘force, stealth or licence’. A prescriptive right is essentially one that is created by uncontested assertion of the right for a given period of time. The principle is based in many ways on a sort of estoppel in rem. In India, the Limitation Act, 1963 is the legislation that governs the period within which suits are to be filed, etc.. The principle that pervades statutes of limitation at common law is that ‘limitation extinguishes the remedy, but not the right’ this means that the legal right itself is not defeated, but only the right to claim it in a court of law is extinguished. An exception to this general rule is the law of prescriptive rights, whereby the right itself is destroyed. Section 27 of the limitation Act, 1963 proclaims:

Section 27: Extinguishment of Right to Property- At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

This provision, when read with Articles 64 and 65 of the Schedule to the Limitation Act, 1963 establishes the law of adverse possession as it stands in India today. These two Articles both prescribe a period of twelve years within which the right to claim a particular property is extinguished, but the two differ in so far as the date on which such period of limitation begins to run.

Article 64 deals with cases where the dispute is over possession not necessarily based title, and in such cases the period of limitation runs from the time when the plaintiff was dispossessed of the property.

Article 65 deals with cases where the dispute is over title as such also and in such cases the period of limitation runs from the time when the defendant becomes adverse to that of plaintiff.

Adverse possession of the land is the process by which title to another’s land is acquired without his permission. Adverse Possession is a possession which is opposed to once interest of the real owner of the property. It is possession in denial of the title of the true owner. According to Supreme Court of India, “The law as it exists is extremely harsh for the true owners and a windfall for a dishonest person who had illegally taken possession of the property of the true owner.” In layman language it is called “land grabbing.” Roots of this type of land grabbing lies in the national policy called “Land to the Tiller”. Although the aim of the policy was to abolish of intermediaries between the tiller and Government, some dishonest person used this policy as a license to grab the other person’s land.

Once adverse possession is proved by the person despite by wrong means, the true owner loses his right over the land/property. A person can prove adverse possession if the possession is:

• Actual – Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property—for example, planting and harvesting crops or cutting and selling timber—indicates actual possession. In some states acts that constitute actual possession are found in statute.

• Open and Notorious

An adverse possessor must possess land openly for the entire world to see, as a true owner would. Secretly occupying another’s lands does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant’s possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.

• Exclusive

Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.

• Hostile

Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner’s rights. One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession.

• Continuous & Uninterrupted – All elements of adverse possession must be met at all times through the statutory period in order for a claim to be successful. The statutory period, or “statute of limitations”, is the amount of time the claimant must hold the land in order to successfully claim “adverse possession”. (In India as per Limitation Act 1963, the statutory period is 12 years)

Case Analysis

Bligh vs. Martin

Facts-An arable field of farmland was included in the parcels of a conveyance in 1945 to the defendant though he did not become aware that this field had been conveyed to him until 1965. The same field was included in the parcels of a conveyance by the same grantor in 1948and the plaintiff’s title rested so far as deeds were concerned on this conveyance. A dispute having arisen in 1966 between the plaintiff and the defendant as to the ownership of the field the plaintiff brought an action in which he claimed title by adverse possession the periods of adverse possession in legal dispute being as events happened, (a) a period from the end of 1954 to Lady Day, 1960, (b) a period from then until Sept, 29, 1960 and (c) the period thereafter until Feb, 16 1961. During the first of these three periods the defendant as contractor under a contractual arrangement made with the plaintiff through the plaintiff’s agents did work of ploughing, sowing and harvesting the field he also turned cattle out on the stubble during the four or five winter months but the plaintiff’s agents did know of this. During the second period the defendant had a seasonal grazing tenancy or licence from the plaintiff of the estate that included the field this being for six months of the year at a rent the defendant continued to put cattle on the field in the winter. The third period was for the legal purpose on the same footing as the winter season immediately preceding that second period. The defendant contended that the field ceased to be in the plaintiff’s adverse possession at some time during the three periods.

Issue- Whether the plaintiff had establish a possessory title by the adverse possession?

Held- The plaintiff had established a possessory title by virtue of the twelve years adverse possession within Section 10 of the Limitation Act, 1939, because as regards the first period the defendant’s user of the field by turning cattle on to it did not amount to dispossessing the plaintiff and did not bring to an end the plaintiff’s adverse possession and during the rest of the year the defendant’s user of the land was as contractor to the plaintiff.

According to the Section 10- (1) no right of action shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run and where under the foregoing provisions of this, Act, any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land. (2) where, a right of action to recover land has accrued and therefore before the right is barred the land ceases to be in the adverse possession, the right of action shall be deemed to accrue unless and until the land is again taken into adverse possession. (3) for the purpose of this section the land in reversion shall b deemed to be adverse possession of the land. It is observed in this case that the twelve year period for the purpose of the statute began on 16, Feb, 1961. This brings in the first summer season of the new arrangement that is the season of 1960.

Possession is a matter of the fact depending on all the particular circumstances of a case. In very many cases possession cannot in the nature of things be continuous from day to day and it is well established that possession may continue to subsist notwithstanding that there are intervals and sometimes long intervals between the acts of user. Plaintiff of his own use the land by turning heifers on to it during winter month falls it seems far short of dispossessing the plaintiff. Possession is from its nature exclusive in this connexion. Both counsel pointed out that where land is subject to a tenancy the landlord and the tenant have each in correct legal parlance possession of the land though in different senses.

So the position as regarding the short period after the summer season of 1960 is the same as that in respect of the winter season immediately preceding that summer season, and no separate argument has directed to the court. For this reasons, the plaintiff has made out a good possessory title.

State of Haryana vs. Mukesh kumar and others

Facts: The State of Haryana had filed a civil suit through the Superintendent of police, Gurgaon, seeking a relief of declaration to the effect that it has acquired the rights by way of adverse possession over the land situated in the revenue estate of Hidayatpur Chhavni, Harayana. The other prayer in the suit was that the sale deed dated 26th March 1990 as well judgement and decree dated on 19th May 1992 passed in civil suit dated 9th March 1992 are liable to be set aside. As a consequential relief, it was also prayed that the defendants be perpetually restrained from interfering with the peaceful possession of the plaintiff (petitioner herein) over the suit land. For the sake of convenience, here, the petitioner is referred as the plaintiff and the respondents as defendants. In the written statement, the defendants raised a number of preliminary objections pertaining to estoppels, cause of action & mis-joinder of necessary parties. It was specifically denied that the disputed property was still lying vacant. However, the plaintiff recently occupied by using the force and thereafter also raised the boundary wall of police line. It was denied in the written statement that the plaintiff right of ownership by way of adverse possession qua property in question. The defendants prayed for dismissal of suit and by the way of a counter claim also prayed for a decree for possession qua suit property be passed.

Issue: 1.Whether plaintiffs become owner of the disputed property by way of adverse possession?

2. Whether defendants are rightful owners of disputed property on the basis of impugned sale deed date 23rd June 1990 registered on 3rd July 1990?

3. Whether defendants are entitled for possession of disputed property?

Overall the main issue of the case is that whether the State which is in charge in protection of life, liberty and property of the people can be permitted to grab the land and the property of its own citizen under the banner of the plea of adverse possession?

The government itself may require land by possession. Fairness dictates and commands that if the government can acquire title to the private land through adverse possession, it should able to lose title under the same circumstances.

Issue No.1 which relates to the adverse possession, according to the trial court the plaintiff has proved to fail the possession over the disputed property because the plaintiff could not produce the documentary evidence to prove this. On the contrary, revenue records placed on the records shows that the defendants are the owners in possession of the disputed property. The trial court observed that possession of the state as claimed in the plaint for a continuous period of 55 years, stood falsified by the documents issued by the officials of the state.

The trial court also observed that despite claiming adverse possession, there was no pleading qua denial of the title of the defendants by the plaintiff, so much so that the specific day when the alleged possession of the state allegedly became the adverse against the defendant has not been mentioned in order to establish the starting point of the limitation could be ascertained. The trail court relied on the judgement of the SM Kaarim vs. Mst. Bibi Sakina wherein the court has laid down that the adverse possession must be adequate in continuity, in publicity and extent and a plea is required at least to show when possession become adverse. The court also held that long possession is not necessarily adverse possession. The trial court also relied on the decision of the High Court of Punjab And Haryana in the case of Bhim Singh vs. Zile Singh wherein it was establish that no declaration can be sought by a plaintiff woth regard to the ownership on the basis of adverse possession.

The trial court came to specific conclusion that despite the fact that the possession of the plaintiff over the disputed land is admitted on behalf of defendants, issue no. 1 stand decided against the plaintiff. It was held that the suit of the plaintiff claiming ownership by way of adverse possession is not maintainable.

Regarding the issue no. 2 & 3, the trial court observed that once it is held that defendants are the owners of the disputed property, which is presently in possession of the plaintiff without any right, they (defendants) are entitled to its possession.

As a sequel to the findings of this court on the issues mentioned above the suit of the plaintiff stands dismissed, however, counter claims filed by the defendants is decreed with costs to the effect that they are entitled to possession of land situated in revenue estate of Hidayatpur Chhavni.

The plaintiff aggrieved by the judgement of the trial court filed an appeal before the Leaned Additional District Judge, Gurgaon, while deciding they relied on the judgement of the Punjab and Haryana high Court delivered in the case of Food Corporation Of India Vs. Dayal Singh wherein it was observed that it does not behave the government to take the plea of adverse possession against the citizens. They also relied on the case of the Bhim Singh And Kanak Ram vs. Chanan Singh wherein it was held that a person in the adverse possession of immovable property cannot file a suit for declaration claiming ownership and such a suit was not maintainable. Before parting with the judgement the learned Additional District Judge observed regarding the conduct of the plaintiff that the present suit was filed by state of Haryana by then Superintendent of police department is for the protection of the people and property of the citizen and the policed department had unnecessarily dragged the defendants in unnecessary litigation. The appeal was dismissed.

Unfortunately, despite serious decision passed by the court, the State of Haryana did not got satisfied or learned the lessons and preferred a Second Appeal before the high Court of the Punjab And Haryana, Chandigarh against the judgements and the decrees of the two courts.

The High Court, relying on the earlier judgements observed that the welfare state which was responsible for the protection of life and property of its citizen was in the present case itself trying to grab the land/property of the defendants under the garb of plea of adverse possession and hence the action of the plaintiff is deplorable and disgraceful. Unfortunately the State of Haryana was still unsatisfied with three strong judgements by three different forums given against the state quite anxious and keen to grab the property of the defendants in a clandestine manner on the plea of the adverse possession. The revenue records of the state revealed that the disputed property stood in the name of the defendants. It is unfortunate that the Superintendant of the police, a senior official of the Indian Police Service made repeated attempts to grab the property of the true owner by filing repeated appeals before different forums claiming right of ownership by way of adverse possession. The citizens may lose faith in in the entire police administration of the country that those responsible for the safety and security of their life and property are on a spree of garbing the properties from the true owners in a clandestine manner.


In conclusion, one must note that the law of adverse possession is no longer what it used to be, a tool of a powerful squatter buttressed by the lack of awareness on part of the true owner in an ancient law. Today, the law of adverse possession is viewed with great circumspection by the judiciary, and this is a trend that commenced abroad. With the recognition of property as a human right of sorts by the European Court of Human Rights we see the classical conception of the law of adverse possession changing slowly but surely. There, the ECHR held: “The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized possession struck a fair balance with any legitimate public interest served.”