Adverse possession is a legal theory under which someone who is in possession of land

owned by another can actually become the owner if certain requirements are met for a period
of time defined in the statutes of that particular jurisdiction. The law of adverse possession
applies when the party in actual possession of the property in hostile against the title of the
true owner openly, continuously, publicly for a period of 12 years in case of private person
and 30 years in case of Govt/state /Public property. In Indian Law, the concept of adverse
possession is explained under The Limitation Act, 1963. If the real owner does not claim his
right against the intruder within a prescribed time, he loses his right, and the possessor
(intruder) gets the ownership right.

As observed by the Supreme Court of India in the case of Karnataka Board of Wakf Vs.
GOI1, the eye of law, an owner would be deemed to be in possession of a property as long as
there is no intrusion. Non-use of the property by the owner even for a long time will not
affect his/her title. However, when another person takes possession of the property and
asserts rights over it and the person having title omits or neglects to take legal action against
such person for years together the position stand altered.

“The process of acquisition of title by adverse possession springs into action essentially by
default or inaction the owner”2. The essential requisites to establish adverse possession are
that

(i) The possession of the adverse possessor must be neither by force nor by stealth
nor under the license of the owner.

(ii) It must be adequate in continuity, in publicity and in extent to show that the
possession is adverse to the owner.

1
( 2004) 10 SCC 779
2
Amrendra Pratap Singh vs. Tej Bahadur Prajapati, (2004) 10 SCC 65

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AIR 2009 SC 103

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2011(10) SCC 404
The adverse possession requires all the three classic requirements to co-exist at the same
time, namely, nec-vi i.e. adequate in continuity, nec-clam i.e., adequate in publicity and
nec-precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible,
notorious and peaceful so that if the owner does not take care to know notorious facts,
knowledge is attributed to him on the basis that but for due diligence he would have known
it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi
under hostile colour of title is required.

The law on adverse possession is contained in the Indian Limitation Act. Article 65, Schedule
I of The Limitation Act prescribes a limitation of 12 years for a suit for possession of
immovable property or any interest therein based on title. Article 65 relates to suits for
possession based on title while Article. 64 deals with suits based on possession and not on
title. In the case of Article. 64, the onus lies on the plaintiff to prove his possession within 12
years, while in the case of Art. 65 it is for the defendant to prove when his possession became
adverse. In a suit governed by Article. 64 the nature of possession is not material but under
Art. 65 the possession to be a material is adverse possession of the defendant. Under Article.
64 limitation commences from the date of dispossession whereas under Art. 65 it commences
from the date when the possession of the defendant became adverse.

In Chandra Kanta v. Gokul, (AIR 1975 Gau. 13) kindly use the footer in this; it has been
held that a plaintiff may sue for possession both on the ground of title and on the ground of
dispossession. If he proves his title he is entitled to decree for possession unless the defendant
establishes title by adverse possession and Article to be applied is Art. 65. If he fails to prove
title but succeeds in proving possession and dispossession within 12 years he will get
recovery of possession but not declaration of title and to such suit at present Art. 64 would
apply.

1
( 2004) 10 SCC 779
2
Amrendra Pratap Singh vs. Tej Bahadur Prajapati, (2004) 10 SCC 65

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AIR 2009 SC 103

5
2011(10) SCC 404
In Rama Bhattacharjee v. Md. Bachu Sheik, (AIR 2005 Gau. 18), it has been held that when
the plaintiffs rights, title and interest in respect of the suit-land has been declared in an earlier
suit which attained finality, the plaintiffs subsequent suit for possession based on such title
declared is governed by Art. 65 and not Art. 64.

Article 65 as well as Article 64 shall be read with Section 27 “Extinguishment of right to

property” under which it states that where a cause of action exists to file a suit for possession
and if the suit is not filed within the period of limitation prescribed, then, not only the period
of limitation comes to an end, but the right based on title or possession, as the case may be,
will be extinguished and possessory right gets transformed into ownership.

Section 27 is an exception to the well accepted rule that limitation bars only the remedy and
does not extinguish the title. It means that since the person who had a right to possession has
allowed his right to be extinguished by his inaction, he cannot recover the property from the
person in adverse possession and as a necessary corollary thereto, the person in adverse
possession is enabled to hold on to his possession as against the owner not in possession.

It was clarified by a 3 Judge Bench of the Supreme Court in Kshitish Chandra Bose v.
Commissioner of Ranchi3, “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. Such a requirement may be
insisted on where an ouster of title is pleaded, but that is not the case here.”

The Supreme Court of India, has in two recent decisions, namely, Hemaji Waghaji vs.
Bhikhabhai Khengarbhai4 and State of Haryana Vs. Mukesh5, has pointed out the need to
have a fresh look at the law of adverse possession.

Hemaji case “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 clandestine manner takes possession of the property
1
( 2004) 10 SCC 779
2
Amrendra Pratap Singh vs. Tej Bahadur Prajapati, (2004) 10 SCC 65

4
AIR 2009 SC 103

5
2011(10) SCC 404
of the owner in contravention of law. In our considered view, there is an urgent need of fresh
look regarding the law on adverse possession. We recommend the Union of India to seriously
consider and make suitable changes in the law of adverse possession.”

State of Haryana case“Adverse possession allows a trespasser – a person guilty of a tort, or

even a crime, in the eye of the law to gain legal title to land which he has illegally possessed
for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically
and morally speaking, baffling. We are clearly of the opinion that time has come for change”

However Section 27 of Limitation Act, 1963 provides for extinguishment of right on the
lapse of limitation fixed to institute a suit for possession of any property, the right to such
property shall stand extinguished. The concept of adverse possession as evolved goes beyond
it on completion of period and extinguishment of right confers the same right on the
possessor, which has been extinguished and not more than that. For a person to sue for
possession would indicate that right has accrued to him in presenti to obtain it, not in futuro.
Any property in Section 27 would include corporeal or incorporeal property.

“Person Claiming Title By Adverse Possession Can Maintain A Suit Under Article 65
Limitation Act”

In the case of Ravinder Kaur Grewal vs. Manjit Kaur, It was held that plea of adverse
possession as can be used as sword by the Plaintiff and shield as a Defendant.

Overruling the two Judge bench Judgements Gurudwara shab v. Gram Panchayat village
Sirthala, Which have held no Declaration of Title can be sought by a Plaintiff on the basis of
adverse possession in as much as adverse possession can be used as a shield by a defendant
and not as a sword by a plaintiff. The bench conclude as follows:

1
( 2004) 10 SCC 779
2
Amrendra Pratap Singh vs. Tej Bahadur Prajapati, (2004) 10 SCC 65

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AIR 2009 SC 103

5
2011(10) SCC 404
“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, 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”.

In conclusion the Plaintiff in a suit for Declaration of title by adverse possession can maintain
a suit under article 65 of the Limitation Act. The Plaintiff in the earlier state did not have the
right to Declaration of title by adverse possession and the defendants had an upper hand
under article 65 of the Limitation Act. This Judgement changed the course of Interpretation
and concluded that “Now the Plaintiff can use it as a sword and the Defendant can use it as a
shield”. The Plaintiff is now entitled for the plea of adverse possession and can use it as a
sword by overruling most of the Judgements highlighting the defendants upper hand right in
adverse possession.

Thus the verdict pronounced by the bench comprising Justice Arun Mishra, JusticeS. Abdul
Nazeer and Justice M R Shah shot to limelight by observing the decisions of Gurudwara
Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of
Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through
LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus
1
( 2004) 10 SCC 779
2
Amrendra Pratap Singh vs. Tej Bahadur Prajapati, (2004) 10 SCC 65

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AIR 2009 SC 103

5
2011(10) SCC 404
they are hereby overruled. We hold that plea of acquisition of title by adverse possession
can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar
under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights
of a plaintiff.

“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”.

Even before ripening of the title by way of adverse possession (I.e.) even before the
completion of 12 years Limitation period. A suit for recovery of possession can be filed and
maintained under article 64.

1
( 2004) 10 SCC 779
2
Amrendra Pratap Singh vs. Tej Bahadur Prajapati, (2004) 10 SCC 65

4
AIR 2009 SC 103

5
2011(10) SCC 404