Adverse Possession

Adverse Possession
Under the doctrine of adverse possession, a person who is not holding the title to the land
but holding the possession of the land owned by someone else for a considerable period
may acquire a valid title to it, provided that the adverse owner is in possession for a
sufficient period as per the Limitations Act. In India, any person in possession of a property
for a period of more than 12 continuous years may claim unfavourable possession of the
property.
Elements establishing adverse possession
1. CONTINUITY IN ADVERSE POSSESSION: The Possession and occupancy of the

property by the trespasser/claimant shall be continuous, uninterrupted and
unbroken for the entire statutory limitation duration.
2. HOSTILE POSSESSION: Possession must be aggressive, often referred to as

adverse, if the title is to mature from adverse possession. Hostile Possession
means that the Claimant/ occupier is occupying the land despite knowing that
he/she doesn’t hold any legal title to occupy or possess the said property.
Possession must be aggressive, often referred to as adverse, if the title is to
mature from adverse possession. Hostile Possession means that the Claimant/
occupier is occupying the land despite knowing that he/she doesn’t hold any legal
title to occupy or possess the said property. There will be no conflict or conflict
about the title as long as the claimant continues to claim the land and hold it
against the interests of the owner and the world as a whole. Possession must be
aggressive from the start and must continue throughout the limitation period.
One form of hostile occupation arises when the claimant enters and stays on the
land under the colour of the title. The colour of the title is the appearance of the
title as a result of an act which appears, by its language, to give the applicant a
valid title, but does not, in fact, appear to be defective. Unless, for example, a
person has a legitimate disability at the time of the execution of an act, the
grantee-claimer would not obtain the actual title. However, the grantee-claimer
has the colour of the title because it would appear to anyone reading the
document that the good title had been conveyed. If for the full statutory period,
the claimant owns the land in the manner specified by statute, his or her colour
of the title shall become the real title as a result of adverse possession.
3. ACTUAL POSSESSION: Actual possession: an adverse possession must be actual

possession, such as the construction of a house, the erection of a shed or some
structure, the fencing of a property, the grazing of cattle on the land, the farming
and harvesting of crops on the land, the planting and cutting of trees, etc. for the
whole statutory limitation period.
4. EXCLUSIVE POSSESSION: During the statutory limitation period, the claimant

must be in the sole physical possession of the property against the legitimate
right, assertion, and title of the rightful owner or other claimants. Land
development, the building of a house, or the erection of boundary walls are
examples of “exclusive ownership.” It must not be taken possession of or pseudo-
possession.
Acts that do not constitute adverse possession
1. PERMISSIVE POSSESSION: It cannot be converted into an adverse possession,

particularly where possession is lawful from the outset unless other transparent
actions have been committed by the occupant that will have the effect of denying
the title of the true owner. The permissive character of possession can be
inferred from the circumstances of the case, even without clear evidence. As
soon as the plaintiff shows his intention that the permissive possession would
cease, the permissive possessor would cease to enter the property and, if he does
not do so, his continued presence would be incorrect and would make him liable
to surrender possessions along with mesne profits.
2. ABSENCE OF RIGHTFUL CLAIM: “In the case of Palaniyandi Malavarayan v.

Dadamalali Vidayan, it was contended before Honorable Andhra Pradesh High
Court about adverse possession by a trust that the right to the trusteeship of a
temple cannot be acquired by adverse possession so long as there is no lawful
trustee who could claim to recover the office from the person who claims to hold
it adversely to him” [3].
3. ABSENCE OF SUFFICIENT ANIMUS OR INTENTION: It is the intention to claim the
exclusive title which makes possession adverse. Animus possidendi must be
proved along with the manner of occupancy by the squatter which again varies
from type to type. It is a well-known principle in the fiduciary relationship that
the possession of the agent is the possession of the principle and therefore the
existing relationship between the parties cannot be permitted to be as adverse.
Supreme Court’s comments on adverse possession
In Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan((2009) 16 SCC 517), the Apex
Court criticised the doctrine of Adverse Possession and maintained that the doctrine of
Adverse possession is illogical, irrational and wholly disappropriate because it punish the
actual owner for not taking any action within the limitation period. Whereas, it rewards the
dishonest person who has illegally taken the possession of the property. Further, the Apex
Court directed the Union of India to reconsider the doctrine.
Further in State of Haryana Vs. Mukesh Kumar 2011(10) SCC 404 , the Hon’ble Supreme
Court has made certain important observations and reiterated to have a fresh look at the
law of adverse possession as made earlier in HemajiWaghaji’s case (supra) and the same are
quoted here in below:
The Apex Court held that the doctrine of Adverse Possession is borrowed from British laws
and recommended the parliament to consider abolishing or amend the law of Adverse
Possession to provideprovides some relief to the owner for their inaction. Adverse
Possession allows the tort committer to gain a legal title to the land where he is just a
trespasser for 12 years. Furthermore, Apex Court recommended some suitable
amendments in the Law of Adverse Possession to the Union of India, those are:
i) To extend the period of 30 to 50 years instead of 12 years.
ii) To pay market rates or some lesser amounts to the title-holder of the property.

Adverse Possession

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Adverse Possession

Elements establishing adverse possession

1. CONTINUITY IN ADVERSE POSSESSION: The Possession and occupancy of the

2. HOSTILE POSSESSION: Possession must be aggressive, often referred to as

3. ACTUAL POSSESSION: Actual possession: an adverse possession must be actual

4. EXCLUSIVE POSSESSION: During the statutory limitation period, the claimant

Acts that do not constitute adverse possession

1. PERMISSIVE POSSESSION: It cannot be converted into an adverse possession,

2. ABSENCE OF RIGHTFUL CLAIM: “In the case of Palaniyandi Malavarayan v.

Supreme Court’s comments on adverse possession

i) To extend the period of 30 to 50 years instead of 12 years.

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