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09-May-19
A note on Adverse Possession
This note on Adverse Possession has been divided in a three-pronged manner. First, its definition
is discussed, followed by the essentials and then the relevant case laws.
I Black's Law Dictionary defines adverse possession as, “A method of acquisition of title to

real property by possession for a statutory period under certain conditions.”
Adverse Possession is a doctrine through which ownership of a property is acquired by the non-
owner who is already in possession of it, if that individual is successful in fulfilling the following
elements-
1. Actual- there has to be an actual-physical entry by the individual. The individual need to
exercise domain over the property just like an original owner.1
2. Continuous- the individual needs to occupy the property continuously for more than 12
years. The possession should not be interfered or discontinued in between. As per s. 64
and 65 of the Limitations Act, 1963, there has to an absence of actual possession by the
original owner for 12 years. The period of limitations starts from the date when the
individual makes an open acquisition of the property.2
For Govt. property, according to s. 25 of this Act, the period of limitation is 30 years.3
3. Exclusive- the individual needs to have sole physical occupancy of the property. One of
the ways to prove sole physical occupancy is to make physical improvements like
construction. However, this does not discard the scope of joint tenancy. For example, if
two occupants are acquiring a property jointly against the owner, then both of them can
claim adverse possession.4
4. Open- the individual needs to make the acquisition obvious to the entire world by
occupying the land openly. It has to be a clear notification to the neighbors and the
owners that the land has been acquired by the individual.5
1
Karnataka Board of Wakf vs. Govt. of India (2004) 10 SCC 779
2
Parsinni (Dead) by Lrs. and Ors. vs. Sukhi and Ors. JT 1993(5) SC 435
3
D.N. Venkatarayappa and Ors. vs. State of Karnataka and Ors., AIR 1997 SC 2930
4
P. Lakshmi Reddy vs. L. Lakshmi Reddy, (1957)1 SCR 195
5
T. Anjanappa vs. Somalingappa, (2006) 7 SCC 570
09-May-19
5. Hostile- the individual needs to occupy the land against the rights of the true owner. It
cannot be based on the consent of the owner. One way is through the color of title. It
happens when someone occupies the property based on some title deed which is
defective.6
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.7 Adverse
Possession has not been explicitly mentioned in the Transfer of Property Act, 1882 but is
provided in Limitations Act, 1963.8
II Following are the essentials of what pertains to adverse possession of an immovable property
which have been observed by the Courts in cases discussed later.
The possession must be-
 Continuous
 Open (within public knowledge and not in secrecy) and undisturbed.
 Hostile to the true owner
 Exclusive
III Following are the relevant case laws wherein essentials have been discussed by the Courts
as to what makes a possession adverse in nature -
1964- In S.M. Karim vs. Bibi Sakina9, the Supreme Court laid down that in order to claim
adverse possession, the long uninterrupted possession is not the only requirement but a plea is
required to show when possession becomes adverse so that the starting point of limitation against
the party affected could be found.
1993- Parsinni (Dead) by Lrs. and Ors. vs. Sukhi and Ors.10 confirms the requirement of
continuous possession for 12 years as per the Limitation Act.
6
Supra note 4
7
Secretary of State for India vs. Debendra Lal Khan [1933] L.R. 61 I.S. 78
8
S. 25, 64 and 65 of the Limitation Act, 1963.
9
AIR 1964 SC 1254
10
Supra note 2
09-May-19
1995- In Mahesh Chand Sharma vs. Raj Kumar Sharma and Ors.11 the Court observed that it is
well settled that the plea of adverse possession is not a pure question of law but a mixed question
of fact and law. It is also well established that the party pleading adverse possession must state
with sufficient clarity as to when his adverse possession commenced and the nature of its
possession.
1997- In D.N. Venkatarayappa and Ors. vs. State of Karnataka and Ors.12, the Supreme Court
has observed that the person, who comes into possession under colour of title from the original
grantee if he intends to claim adverse possession as against State, must disclaim his title and
plead his hostile claim to the knowledge of the State i.e. , he has to necessarily plead and prove
the date from which he disclaimed the title and asserted possessory title as against the State
and perfected his possession to the knowledge of the real owner viz., the State and the State
had not taken any action thereon within the prescribed period.
2004- The case of Karnataka Board of Wakf vs. Government of India and Ors.13 , the SC
clarified the features of adverse possession. It states that the onus is on the claimant to
establish the necessary facts and evidence to claim property title.
A person claiming adverse possession has to show the following before the court:
 The date of possession
 The nature of the possession
 The possession was known to public
 The duration of the possession
 The continuity of the possession
2008- In the judgement of Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan and Ors.14.,
the SC has taken in view many case laws and their observations in-depth and confirmed the
essentials as mentioned before.
11
AIR 1996 SC 869
12
Supra note 3
13
Supra note 1
14
AIR 2009 SC 103
09-May-19
2010- In Chatti Konati Rao and Ors. vs. Palle Venkata Subba Rao15, the SC held that animus
possidendi as is well known a requisite ingredient of adverse possession. Mere possession
does not ripen into possessory title until possessor holds property adverse to the title of the true
owner for the said purpose. The person who claims adverse possession is required to establish
the date on which he came in possession, nature of possession, the factum of possession,
knowledge to the true owner, duration of possession and possession was open and undisturbed.
2011- This particular case is different from others as in the State of Haryana vs. Mukesh Kumar
& Ors.16 case, the Supreme Court decided in favour of the actual owner of the property and said
that the law of adverse possession was archaic and should be seriously looked into. It added that
in adverse possession, a trespasser who is actually guilty was able to gain legal title over the
property. The court found the legal system rewarding an illegal act baffling.
Through this case, the Court has critiqued the doctrine of adverse possession and asked the
law-making bodies to do away with such draconian laws.
2019- On April 26th, in the case of Mallikarjunaiah vs. Nanjaiah and Ors.17, the SC again
confirmed the requirements of a possession for it to be adverse by saying, “it is a settled principle
of law that mere continuous possession howsoever long it may have been qua its true owner is
not enough to sustain the plea of adverse possession unless it is further proved that such
possession was open, hostile, exclusive and with the assertion of ownership right over the
property to the knowledge of its true owner.”
15
AIR 2011 SC 1480
16
AIR 2012 SC 559
17
Civil Appeal No. 7768 of 2011; MANU/SC/0607/2019

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09-May-19

A note on Adverse Possession

I Black's Law Dictionary defines adverse possession as, “A method of acquisition of title to

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