TITLE BY ADVERSE POSSESSION

By- Sri Sudhanshu Kumar Shashi

Director, Judicial Academy, Jharkhand

STRUCTURE
Introduction ................................................................................................................ 2

Historical Background ............................................................................................... 3

The Doctrine of Adverse Possession.......................................................................... 4

The Limitation Act, 1963 ....................................................................................... 5

Essentials of the Doctrine ...................................................................................... 6

Nature of Possession .............................................................................................. 7

Kinds of Adverse Possession ................................................................................. 8

Case Laws on Adverse Possession ............................................................................. 9

1. Bhimrao Dnyanoba Patil and others v. State of Maharashtra and Others ...... 9

2. Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors. ......................... 10

3. Karnataka Board of Wakf v. Government of India and Ors. ........................ 10

4. P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors ........................ 11

5. L.N. Aswathama and Ors. v. P. Prakash ...................................................... 12

6. Gurudwara Sahib v. Gram Panchayat Village Sirthala and Ors. .................. 12

7. Ravinder Kaur Grewal and Ors. v. Respondent: Manjit Kaur and Ors ........ 13

8. Darshan Kaur Bhatia v. Ramesh Gandhi…………………………………..14

9. K. S. Setlur (D) by L.Rs. v. O.V. N. Setty (D) by L.Rs……………………14

10. Mahesh Mandal and Ors. v. Deep Narayan Yadav and Ors……………...14

Need for change ....................................................................................................... 15

1. Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors………..15

2. State of Haryana v. Mukesh Kumar and Ors………………………………16
Law Commission of India Report ............................................................................ 18

Conclusion ............................................................................................................... 20

1
 I. INTRODUCTION
“Man like a tree is the cleft of a rock gradually shapes his roots to the surroundings and
when the roots have grown to a certain size, cannot be displaced without cutting at his life.”
-Justice Oliver Wendell Holmes
The abovementioned statement by Justice Holmes beautifully surmises the rationale
behind the concept of adverse possession. Adverse Possession can broadly be said to be the
doctrine under which a person in possession of land owned by someone else acquires valid to
it upon fulfilment of certain requirements as per law.
The doctrine of adverse possession rests broadly on the consideration that title should
not long be in doubt, the society will benefit from someone making use of land which the owner
leaves idle and that person who comes to regard the occupant as owner may be protected. It is
based on the maxim, ‘Vigilantibus Non Dormientibus Jura Subvenient’, which means law and
equity do not help those who sleep over their rights. In other words, the original title holder
who neglected to enforce his rights over the land cannot be permitted to re-enter the land after
a long passage of time. Non-use of property by the owner even for a long time would not affect
his title. But the position will be altered when another person takes possession of the property
and asserts his right over it and the person having title neglects to take legal action for years
together.
The prescription of period of limitation for recovering possession the efflux of which
negates the rights and interest of the true owner is the core and essence of the law of adverse
possession. However, permissive possession or possession without a clear intention to exercise
exclusive rights over the property is not considered as adverse possession. The essential
requisites to establish adverse possession are that the possession of the adverse possessor must
be neither by force nor by stealth or under the license of the owner. It must be adequate in
continuity, in publicity and in the extent to show that the possession is adverse to the proper
owner. It cannot be disputed that a person in possession of land in the assumed character of the
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 asserts his title by the process of law within the period prescribed by the provisions of the

2
statute of the limitation applicable to the case, his right is forever extinguished and the
possessory owner acquires an absolute title.1
Plea of adverse possession is not a pure question of law but a blended one of fact and
law. The same title, which the true owner possessed is now passed on to the squatter by
operation of the law of limitation. The squatter does not obtain any new title. The title acquired
by him is the title that the true owner previously had before the same got extinguished by
operation of law. The adverse possessor takes the place of the true owner, and becomes the
owner of the property, acquiring the title to the property. This is the nature of the title of the
adverse possession.
The conditions necessary to prove a claim of adverse possession are not given in any
statutory provision but have been laid down extensively through case laws which have been
dealt with in detail in this article. The objective of this article is to provide the readers with a
comprehensive understanding of the present legal position regarding the concept of adverse
possession in India.

II. HISTORICAL BACKGROUND

The origin of the doctrine of adverse possession cannot be traced with precision. The
Code of Hammurabi which dates back to 2000 B.C. can be said to be the earliest record
recognizing the doctrine. The Code consists of 282 Rules, Rule 30 of the said Code deals with
the concept of Adverse Possession. It provides that if a man left his house, garden, and field
and someone else took possession of his house, garden, and field and used it for three years
and if the first owner returned and claimed his house, garden, and field, it shall not be given to
him, but he who had taken possession of it and used it shall continue to use it.
The ancient Romans believed that a person who possessed land nurtured the spirit of
the land and gained a greater “ownership” in the land than the title owner. Even today, there is
a saying “…possession is nine-tenths of the law…” which had its origins in the concepts of
adverse possession.
The earliest codification of adverse possession in English law is found in the Statute of
Westminster, in 1275 AD, under which limited actions for the recovery of land could be
made. In early England the best evidence of ownership was possession. The Statute of
Limitations,1639 AD set the period at 20 years within which an owner could sue for recovery
of possession.

1
Mantha Ramamurthi, Law of Adverse Possession, Preface to eighth edition pg v (Delhi law House,Delhi,
th
8 Edition, 2022)

3
 The doctrine was evolved to prevent time-consuming legal disputes over property rights
and wastage of land by forcing the owners to monitor their property or suffer the consequences
of losing title. Today, the concept is recognized by almost all the major jurisdictions of the
world though the limitation periods vary from country to country or even within a country.
In India, the concept of adverse possession was first recognized by the Privy Council
in the case of Perry vs. Clissold (1907) AC 73. It was held as follows: “It cannot be disputed
that a person in possession of 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 forever extinguished and the possessory owner acquires an absolute title.”

III. THE DOCTRINE OF ADVERSE POSSESSION

The Doctrine of Adverse Possession encompasses the acquisition of valid title to the
property by a trespasser in possession of land owned by someone else as long as certain
requirements of the law are met and the adverse possessor is in possession of the property for
a sufficient period of time as defined by the statute of limitations.2 It is the process by which
title to another’s land is acquired without his permission. Adverse possession is a possession
that is opposed to the interest of the real owner of the property. It is possession in denial of the
title of the true owner.3
Adverse possession is a well-defined method of gaining legal title over real property by
the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for
the period prescribed by the law.4 In the case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai
Harijan and Ors.,5 the Hon’ble Supreme Court described the concept of adverse possession as
follows;
“Adverse possession in one sense is based on the theory or the presumption that
the owner has abandoned the property to the adverse possessor on the acquiescence of
the owner to the hostile acts and claims of the person in possession. Efficacy of adverse
possession law in most jurisdictions depends on strong limitation statutes by operation

2
An analysis of laws related to Adverse Possession: Threat to real owner, available at
https://www.indialegallive.com/special-story/an-analysis-of-laws-related-to-adverse-possession-threat-to-real-
owner/ (last visited on June 08, 2023).
3
Supra note 1 at 8-9.
4
Id.
5
AIR 2009 SC 103

4
 of which right to access the Court expires through efflux of time. As against rights of
the paper owner, in the context of adverse possession, there evolves a set of competing
rights in favour of adverse possessor who has, for a long period of time, cared for the
land, developed it, as against the owner of the property who has ignored the property.
Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring
an action for the recovery of property that has been in the adverse possession of another
for a specified time, but also to vest the possessor with title. The intention of such
statutes is not to punish the person who neglects to assert rights, but to protect those
who have maintained the possession of property for the time specified by the statute
under claim of rights or colour of title.”
A situation lasting for a long period creates certain expectations and it would be unjust
to disappoint those who trust in them.
A. Adverse Possession vis-à-vis The Limitation Act, 1963
The law of adverse possession is contained in the Limitation Act, 1963 (Hereinafter
referred to as, ‘the Act’). Section 3 of the Act says that the Court will not take cognizance of
any suit, which is barred by limitation even if the issue of limitation is not taken as a defence.
Thus, the law of limitation bars remedy but not the right. But section 27 of the Act contains
provision regarding adverse possession which is an exception to the general principle of law
of limitation . It reads, “if a person fails to file suit for recovery of possession, within a period
of limitation, his right to recover the possession of that property also extinguishes”. If such
situation occurs, the ownership of true owner over the property is extinguished. But at the same
time property cannot be left ownerless. It must be in name of any other person or any other
person must be entitled to have right over it. This situation gives birth to the concept of adverse
possession. If any person possesses any property, adverse to the interest of true owner and true
owner fails to file a suit for recovery of possession within a period of limitation, then the person
in possession becomes owner of property by way of adverse possession.
Article 65 of Schedule I of the Act prescribes a limitation of a period of 12 years for a
suit for possession of immovable property or any interest therein based on title. It is important
to note that the starting point of limitation of 12 years is counted from the point of time “when
the possession of the defendants becomes adverse to the plaintiff”. Article 65 is an independent
Article applicable to all suits for possession of immovable property based on title i.e.,
proprietary title as distinct from the possessory title. Article 64 governs suits for possession

5
based on the possessory right. Twelve years from the date of disposition is the starting point of
limitation under Article 64. Article 65 as well as Article 64 are to be read with section 27.
B. Essentials of the Doctrine
The requirements of law that must be fulfilled by an adverse possessor to obtain title,
primarily include:
1. Possession over certain Property:
There must be certain property, which may be movable or immovable.
2. Possession must be hostile:
Possession must be hostile 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 the colour of title. Colour 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 the colour
of title because it would appear to anyone reading the deed that good title has been
conveyed. If a claimant possesses the land in the manner required by law for the
full statutory period, his or her colour of title will become actual title as a result of
adverse possession.
3. Possession must be with intent to oust the real owner:
In order to establish title by adverse possession, Animus possidendi is necessary.
Person holding property by way of adverse possession must publish his intention to
deny the right of the real owner. In the case of Bhimrao Dnyanoba Patil v. State of
Maharashtra6, It has been held that, unless enjoyment of the property is
accompanied by adverse animus, mere possession for a long period even over a
statutory period, would not be sufficient to mature the title to the property by
adverse possession.
4. Possession must be continuous and 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 prescribed period of limitation is
the amount of time the claimant must hold the land in order to successfully claim

6
2003 (1) Bom. L.R. 322; 2003(1) All MR 565; 2003 (2) LJSoft 131

6
 title by adverse possession.7 For such prescribed period, possession must be
continuous and uninterrupted. But it is not necessary to establish possession at every
moment of the requisite period.
5. Possession must be 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 adverse use,
or the Claimant’s possession must be so notorious that it is generally known by the
public or the people in the neighbourhood. 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 period of time.
6. Actual Possession:
In order to constitute adverse possession, there must be actual possession of a
person claiming as of right by himself or by persons deriving title from him. It is
not sufficient to show that some acts of possession have been done.
7. Exclusive Possession
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.
C. Nature of Possession
Possession in the eye of law consists of the fact of the physical occupation and the
mental act of holding the subject of possession to the exclusion of others. The unity of these
two elements, namely, occupation and animus possidendi is recognised as constituting
“possession” in the eyes of law. The physical element is not necessarily connected with any
bodily contact with the subject of possession. Physical occupation implies the physical power
or possibility of dealing with the subject immediately.

7
Effect of Claim of Adverse Possession In Declaratory Suits, available at:
https://districts.ecourts.gov.in/sites/default/files/Subject%20-%20II.pdf (last visited June 08, 2023)

7
 The concept of adverse possession contemplates hostile possession i.e., possession
which is expressly or impliedly in denial of the title of the true owner. For possession to be
adverse, it must be possession by a person who does not acknowledge the other’s right and, in
fact denies the same. A person who bases his title on adverse possession must show by clear
and unequivocal evidence that his possession was hostile to the real owner and amounted to
denial of his title to the possession claimed. In order to determine whether the act of a person
constitutes, adverse possession, ‘animus in doing that act’ is a crucial factor. Adverse
possession commences in wrong and is aimed against right. A Person is set to hold the property
adversely to the real owner when that person is in denial of the owner’s right excluding him
from the enjoyment of his property. Possession is not said to be adverse if it can be referred to
a lawful title. The person setting up adverse possession may have been holding under the
rightful owner's title that is, trustees, guardians, bailiffs or agents, such person cannot set up
adverse possession. Burden is on the defendant to prove in affirmative.8
D. Kinds of Adverse Possession
Adverse possession is of 2 kinds.
a. Possession that is adverse from the beginning, or
b. Possession that became so subsequently.
If a trespasser takes possession of A’s property, and retains it against him, his possession
is adverse ab initio. But if A grants a lease land to B, or B obtains possession of the land as A’s
bailiff, or guardian, or trustee, his possession can only become adverse by some change in his
position. Adverse possession not only entitles the adverse possessor, like every other possessor,
to be protected in his possession against all who cannot show a better title, but also, if the
adverse possessor remains in possession for a certain period of time produces the effect either
of barring the right of the true owner and thus converting the possessor into the owner, or of
depriving the true owner of his right of action to recover his property although the true owner
is ignorant of the adverse possession being in occupation.9 Forcible possession for more than
the statutory period establishes adverse possession.

8
Supra note 1.
9
Id.

8
 IV. CASE LAWS ON ADVERSE POSSESSION
1. Bhimrao Dnyanoba Patil and others v. State of Maharashtra and Others10.

The Hon’ble Bombay High Court in the above case, differentiated between permissive
possession and adverse possession. Under paragraph 9 of the Judgement, The Bombay High
Court has held that;

8. ...The permissive possession will always continue to be permissive till and

until the licensee asserts and proves the assertion of adverse possession.
Such assertion and the proof in that regard should necessarily be for a
continuous period of twelve years. The Apex Court in Sheodhari Rai v.
Suraj Prasad Singh reported in AIR 1954 SC 758 has clearly held that
where possession is proved in its origin to be permissive, it will be
presumed that it continued to be of the same character until and unless
something occurred to make it adverse. The Supreme Court has further
held in State Bank of Travancore v. A.K. Panicker reported in AIR 1971
SC 996 that there must be open and explicit disavowal and disclaimer
brought to the knowledge of the owner. Mere possession for however
length of time does not result in converting the permissive possession into
adverse possession, as has been ruled by the Supreme Court in Thakur
Kishan Singh v. Arvind Kumar reported in AIR 1995 SC 73. The
permissive possessor has necessarily to prove some overt act on his part
indicating assertion of hostile title. It is well said that permissive
possession and hostile animus operate in conceptually different fields, and
the permissive possession does not become adverse by a mere change in
the mental attitude of the person in possession and it is for such person to
prove from which date the permissive possession became hostile.

10
AIR 2003 Bom 80.

9
2. Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors.11

In this case, the Hon’ble Supreme Court has settled a complex question of law which is
whether a non-tribal can acquire title by adverse possession over the property belonging to
tribal? The Court has held as follows:

27. A tribal may acquire title by adverse possession over the immovable
property of another tribal by reference to Para 7-D of the Regulations read
with Article 65 and Section 27 of the Limitation Act, 1963, but a non-tribal
can neither prescribe nor acquire title by adverse possession over the
property belonging to a tribal as the same is specifically prohibited by a
special law promulgated by the State legislature or the Governor in exercise
of the power conferred in that regard by the Constitution of India, A general
law cannot defeat the provisions of a special law to the extent to which they
are in conflict; else an effort has to be made at reconciling the two provisions
by homogenous reading.

3. Karnataka Board of Wakf v. Government of India and Ors.12

The Apex Court under paragraph 10 of the judgement has made certain important
observations and has held as under;

11. ...In the eye of 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 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

11
2004 (13) AIC 771, AIR 2004 SC 3782

12
2004 (20) AIC 153.

10
 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
Sakinal [1964] 6 SCR 780 , Parsinni v. Sukhi (1993) 4 SCC 375 and D N
Venkatarayappa v. State of Karnataka AIR 1997 SC 2930 ). Physical fact of
exclusive possession and the animus posited 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 true owner, it is for him to clearly plead and establish all facts necessary
to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj
Kumari Sharma AIR 1996 SC 869).

The Court has also made another important observation under para 12 that the plaintiff,
while filing a title suit should be very clear about the origin of title over the property. He
must specifically plead it. Whenever the plea of adverse possession is raised, it is inherent
in the plea is that someone else was the owner of the property. Therefore, the pleas on
title and adverse possession are mutually inconsistent and the latter does not begin to
operate until the former is renounced.

4. P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors.13

The Hon’ble Supreme Court of India has laid down some principles regarding
Adverse Possession under paragraph 37 of the said judgement as under;

37. Adverse possession is a right which comes into play not just because
someone looses his right to reclaim the property out of continuous and wilful
neglect but also on account of possessor's positive intent to dispossess.

13
AIR 2007 SC 1753

11
 Therefore, it is important to take into account before stripping somebody of
his lawful title, whether there is an adverse possessor worthy and exhibiting
more urgent and genuine desire to dispossess and step into the shoes of the
paper-owner of the property. 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. Animus possidendi is one of the
ingredients of adverse possession. Unless the person possessing the land has
a requisite animus, the period for prescription does not commence.

5. L.N. Aswathama and Ors. v. P. Prakash14.

The Hon’ble Supreme Court has under para 7 of the Judgement reiterated that pleas based
on title and adverse possession are mutually inconsistent and the latter does not begin to operate
until the former is renounced. It was held as under;

17. The legal position is no doubt well settled. To establish a claim of title by
prescription, that is adverse possession for 12 years or more, the possession
of the claimant must be physical/actual, exclusive, open, uninterrupted,
notorious and hostile to the true owner for a period exceeding twelve years.
It is also well settled that long and continuous possession by itself would not
constitute adverse possession if it was either permissive possession or
possession without animus possidendi. The pleas based on title and adverse
possession are mutually inconsistent and the latter does not begin to operate
until the former is renounced. Unless the person possessing the property has
the requisite animus to possess the property hostile to the title of the true
owner, the period for prescription will not commence.
6. Gurudwara Sahib v. Gram Panchayat Village Sirthala and Ors. 15
The Supreme Court has observed that defendant can use this adverse possession only as a
shield/defence, and it cannot seek a declaration to the effect that such adverse possession has
mature into ownership . Under Para 7 of the Judgement the Court has held as under:

14
(2009) 13 SCC 229
15
2013 (11) SCALES 64.

12
 7. There cannot be any quarrel to this extent the judgments of the courts
below are correct and without any blemish. Even if the Plaintiff is found to
be in adverse possession, it cannot seek a declaration to the effect that such
adverse possession has matured into ownership. Only if proceedings filed
against the Appellant and Appellant is arrayed as Defendant that it can use
this adverse possession as a shield/defence.
7. Ravinder Kaur Grewal and Ors. v. Respondent: Manjit Kaur and Ors.16
In this significant ruling, the three-Judge Bench comprising of Hon’ble Mr. Justice Arun
Mishra, Justice S. Abdul Nazeer and Justice M.R Shah has settled the question of law regarding
whether a person claiming the title by virtue of adverse possession can maintain a suit Under
Article 65 of Limitation Act, 1963 (for short, "the Act") for declaration of title and for a
permanent injunction seeking the protection of his possession thereby restraining the Defendant
from interfering in the possession or for restoration of possession in case of illegal
dispossession by a Defendant whose title has been extinguished by virtue of the Plaintiff
remaining in the adverse possession or in case of dispossession by some other person?
The Court under Para 64 has overruled the case of Gurudwara Sahab v. Gram Panchayat
Village Sirthala 2013 (11) SCALES 64 and decision relying on it in State of Uttarakhand v.
Mandir Shri Lakshmi Siddh Maharaj (2017) 9 SCC 579 and Dharampal (dead) through LRs v.
Punjab Wakf Board (2018) 11 SCC 449 and under para 59 held as under:
59. We hold that a person in possession cannot be ousted by another person except
by due procedure of law and once 12 years period of adverse possession is over,
even owner's right to eject him is lost and the possessory owner acquires right, title
and interest possessed by the outgoing person/owner as the case may be against
whom he has prescribed. In our opinion, consequence is 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 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. In case of dispossession by another person by
taking law in his hand a possessory suit can be maintained Under Article 64, even
before the ripening of title by way of adverse possession. By perfection of title on
extinguishment of the owner's title, a person cannot be remediless. In case he has
been dispossessed by the owner after having lost the right by adverse possession,

16
(2019) 8 SCC 729

13
 he can be evicted by the Plaintiff by taking the plea of adverse possession.
Similarly, any other person who might have dispossessed the Plaintiff having
perfected title by way of adverse possession can also be evicted until and unless
such other person has perfected title against such a Plaintiff by adverse possession.
Similarly, under other Articles also in case of infringement of any of his rights, a
Plaintiff who has perfected the title by adverse possession, can sue and maintain a
suit.
9. Darshan Kaur Bhatia v. Ramesh Gandhi17
The Hon’ble Supreme Court in this case reiterated the position regarding adverse possession
as laid down in Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.- 2019 (8) SCC 729,
Setting aside the trial court's rejection of the plaint and the High Court's order confirming the
same relating to the suit claiming title based on adverse possession.
10. Krishnamurthy S. Setlur (D) by L.Rs. v. O.V. Narasimha Setty (D) by L.Rs.18
The Hon’ble Apex Court while upholding that the Plaintiff can claim title to the
property based on adverse possession upheld the observations in the judgement of Ravinder
Kaur Grewal and Ors. v. Manjit Kaur and Ors. (2019) 8 SCC 729 under para 15 of the
judgement.
11. Mahesh Mandal and Ors. v. Deep Narayan Yadav and Ors.19
The single bench of Hon’ble High Court of Jharkhand, comprising of Hon’ble Mr
Justice Anil Kumar Choudhary, has noted the concept of adverse possession and elaborated on
its ingredients. The Court held under para 18 as under:
18. …It is also a settled principle of law that 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.

17
2022 LiveLaw (SC) 246
18
2019 (13) SCALES 84
19
2023 (1)J.L.J.R. 56

14
 V. NEED FOR CHANGE
The concept of adverse possession involves transfer of title to property in dispute as a
result of failure and inaction on the part of the true owner to enforce his rights within the
prescribed time. It is a penalty on the true owner of the property in the form of extinguishment
of his title to that property. In other words, adverse possession commences against the wrong
and it is maintained against the right.20
The concept of adverse possession exists 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 come forward with legal claim on the property.
Since independence of our country we have witnessed registered documents of title and more
proper, if not perfect, entries of title in the government records. The situation having changed,
the statute calls for a change.21
Adverse possession allows the trespasser, a person guilty of a tort or even a crime in
the eyes of the law to gain legal title to land that he has illegally possessed for 12 years. How
12 years of illegality can suddenly be converted to the legal title is logically and morally
speaking baffling.
In the recent case of P.T. Munnichikna Reddy versus Revamma22, Hon’ble Supreme
Court had an occasion to deal with the concept of adverse possession. The Court while
acknowledging the widening dimension of human rights, observed that now property issues
are also being raised within the contours of human rights.
The Court held “The activist approach of the English Courts is quite visible from the
judgements of Beaulane Properties Ltd. v. Palmer 2005 (3) WLR 554 and JA Pye (Oxford) Ltd
v. United Kingdom [2005] ECHR 921. The court herein tried to read the Human Rights position
in the context of adverse possession.”23
On two occasions, the Supreme Court of India has expressed its reservations on concept
of adverse possession and made certain suggestions/recommendations, giving way to an
improved or suitable version of the concept, if at all, it remains a part of our statute books.

20
Preface to Seventh Edition pg-viii.
21
Andrew Dickal, “Making sense out of nonsense: A response to adverse possession by governmental
entities.” Published in Nevada Law Journal, Spring (2007),[ also cited in State of Haryana v. Mukesh Kumar and
others, 2011 10 SCC 404]
22
(2007) 6 SCC 59
23
Id., at 12.

15
1. Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors24
The Division bench of Hon’ble Supreme Court in this case, criticized the law on adverse
possession and has termed it irrational, illogical, and wholly disproportionate. Under Para 34
and 35 of the Judgement, it was held as under;
34. Before parting with this case, we deem it appropriate to observe that the
law of adverse possession which ousts an owner on the basis of inaction
within limitation is irrational, illogical and wholly disproportionate. The law
as it exists is extremely harsh for the true owner and a windfall for a dishonest
person who had illegally taken possession of the property of the true owner.
The law ought not to benefit a person who in a clandestine manner takes
possession of the property of the owner in contravention of law. This in
substance would mean that the law gives seal of approval to the illegal action
or activities of a rank trespasser or who had wrongfully taken possession of
the property of the true owner.
35. We fail to comprehend why the law should place premium on dishonesty
by legitimizing possession of a rank trespasser and compelling the owner to
loose its possession only because of his inaction in taking back the possession
within limitation.
2. State of Haryana v. Mukesh Kumar and Ors.25
The Division bench of Hon’ble Supreme Court comprising of Hon’ble Justice Dalveer
Singh and Justice Deepak Bhandari made certain recommendations regarding the law of
adverse possession. Under Paragraphs 39,40 and 41 of the Judgement, the Hon’ble Court has
held;
42. We inherited this law of adverse possession from the British. The Parliament
may consider abolishing the law of adverse possession or at least amending and
making substantial changes in law in the larger public interest. The Government
instrumentalities - including the police - in the instant case have attempted to
possess land adversely. This, in our opinion, a testament to the absurdity of the law
and a black mark upon the justice system's legitimacy. The Government should
protect the property of a citizen - not steal it. and yet, as the law currently stands,
they may do just that. If this law is to be retained, according to the wisdom of the

24
AIR 2009 SC 103
25
(2011) 10 SCC 404.

16
 Parliament, then at least the law must require those who adversely possess land to
compensate title owners according to the prevalent market rate of the land or
property in question. This alternative would provide some semblance of justice to
those who have done nothing other than sitting on their rights for the statutory
period, while allowing the adverse possessor to remain on property. While it may
be indefensible to require all adverse possessors - some of whom may be poor - to
pay market rates for the land they possess, perhaps some lesser amount would be
realistic in most of the cases. The Parliament may either fix a set range of rates or
to leave it to the judiciary with the option of choosing from within a set range of
rates so as to tailor the compensation to the equities of a given case.
43. The Parliament must seriously consider at least to abolish "bad faith" adverse
possession, i.e., adverse possession achieved through intentional trespassing.
Actually believing it to be their own could receive title through adverse possession
sends a wrong signal to the society at large. Such a change would ensure that only
those who had established attachments to the land through honest means would be
entitled to legal relief.
44. In case, the Parliament decides to retain the law of adverse possession, the
Parliament might simply require adverse possession claimants to possess the
property in question for a period of 30 to 50 years, rather than a mere 12. Such an
extension would help to ensure that successful claimants have lived on the land for
generations, and are therefore less likely to be individually culpable for the trespass
(although their forebears might). A longer statutory period would also decrease the
frequency of adverse possession suits and ensure that only those claimants most
intimately connected with the land acquire it, while only the most passive and
unprotective owners hostile.
Also under para 51, Court has expressed serious concerns over the entire concept of adverse
possession and recommended suitable amendments. The Judgement has held as under:
51. In our considered view, there is an urgent need for a fresh look of the entire law
on adverse possession. We recommend the Union of India to immediately consider
and seriously deliberate either abolition of the law of adverse possession or in the
alternate to make suitable amendments in the law of adverse possession. A copy of
this judgment be sent to the Secretary, Ministry of Law and Justice, Department of

17
 Legal Affairs, Government of India for taking appropriate steps in accordance with
law.
VI. LAW COMMISSION OF INDIA REPORT
The Hon’ble Supreme Court in Hemaji waghaji Jat v. Bhikhabhai Khengarbhai Harijan
and others,26 and State of Haryana v. Mukesh Kumar and Others,27, observed that there is an
urgent need for a fresh look regarding the law of adverse possession. The Hon’ble Court did
not approve the theory of a trespasser being able to perfect title by adverse possession. It
recommended the Union of India to seriously consider and make suitable changes in the law
of adverse possession.28
However, the Law Commission of India in its 280TH Report, while being cognizant of
the abovementioned judgments, supported the law of adverse possession. The Commission,
headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi, opined that the law is
for the benefit of the public at large and cannot be termed colonial.
Notably, disregarding the Hon’ble Supreme Court’s advice to consider abolishing ‘bad
faith’ adverse possession, the Law Commission has categorically stated that there is no
justification for making the doctrine available only to those who do not dishonestly enter the
land with full consciousness that they were trespassing into another’s land. The Commission
further added that it was also not just and proper to deny the plea of adverse possession to a
naked trespasser entering the land without good faith.29
On the issue of compensation to be paid to landowners, the Commission stated,
"It is also not advisable to make any provision for compensating the owner by the
adverse possessor. After coming into wrongful possession, the adverse possessor may be
interested to retain the land even after paying compensation to the owner. The process of fixing
compensation may provide an opportunity to him to question the quantum of compensation and
to protract the litigation to the prejudice of the owner who lost possession and who wants to
recover possession of his land."30

26
AIR 2009 SC 103
27
(2011) 10 SCC 404
28
Law Commission of India, 280th Report “The Law on Adverse Possession” Pg no-3 (May 2023)
29
Law Commission Says No Need To Reconsider Law On Adverse Possession; Disagrees With Supreme
Court, available at: https://www.livelaw.in/top-stories/law-commission-report-supreme-court-adverse-
possession-no-justification-for-introducing-any-change-229927?infinitescroll=1 (last visited 06th June, 2023).
30
Id. at 56.

18
 Further, the Commission also stated that there was no justification to enlarge the
prescribed period of limitation.
However, the recommendations contained in the Report did not find favour with the
Law Ministry. As per the Secretaries of the Department of Legal Affairs and the Legislative
Department who are ex- officio members of the Commission, the Report was drawn up without
consulting the relevant Ministries of the Government of lndia and States from where useful
inputs could have been received. ln the absence of their inputs the benefit of broad-based
deliberations have been avoidably curtailed.
It was stressed that empirical data from judicial records show that the law has not
promoted the cause of the adverse possessor, and serves no purpose.31
"Courts have seldom ruled in favour of adverse possession because of the contradictory
requirement of the nature of possession to be peaceful as well as hostile and notorious.
However, because of the mere existence of such a law the true owners have been subjected to
avoidable and expensive litigation running over generations by unscrupulous persons who are
not averse to fraud and forgery."
The dissenting members underscored that the law of adverse possession promotes false
claims that ultimately do not stand judicial scrutiny. The claim that the law helps protects the
rights of the poor was refuted with the point that all states have laws for the welfare of the
landless.

31
Adverse possession: Law Commission says it is for benefit of public; Law Ministry members say it
enables land mafia, available at: https://www.barandbench.com/news/adverse-possession-law-commission-of-
india-report-ministry-dissent (last visited on 7th June 2023).

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 VII. CONCLUSION
In conclusion, it may seem paradoxical that the law attempts to punish a title holder
who is unconscientious by rejecting its claim, but on the other hand, the same law honours a
wrongdoer and an offender by confirming his title by unlawful ownership, if his possession
meets the requirements. Ordinarily transfer of ownership of a property, is affected by proper
registration, stamp fees and duties but when it comes to adverse possession, transfer of property
is a natural consequence of certain common law requirements, as long as they are met for 12
years. The Hon’ble Apex Court in Hemaji (2009) and Mukesh Kumar (2011), has opined in
stark disapproval of it, but the Law Commission of India in its 280th Report seeks to analyse
and explain as to how despite popular perception to the contrary, it can still be understood to
be moral.32 Adverse Possession ensures that there is always someone in charge of that property
in the eyes of the law, and hence no unsettling vacancies. This is precisely the reason why the
law validates the claim of adverse possession made by the squatter only when the owner can
be shown to have lost effective authority. This is also the rationale behind the owner being able
to defeat the adverse possessor's claims by showing that he continues to be in charge of the
property. Ultimately, the concept of adverse possession addresses the most pressing concern of
law which is not who is the owner but rather that the office of owner is filled instead of lying
vacant.33 And, recent trends show that Adverse possession is very much a part of Indian Statutes
and will continue to operate as is.

32
The Law on Adverse Possession, Supplementary Note, 2 (May 2023)
33
Larissa Katz, "Exclusion and Exclusivity in Property Law" 58 University oJ Toronto Lqw Journal 27
5 , 306 (2008).

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