Dr. Y. Srinivasa Rao, M.A (English Lit.)., B.Ed., LL.M., Ph.D in Law of Torts., Judicial Officer.
Necvi i.e. adequate in continuity, Necclami.e., adequate in publicity and Necprecario i.e. adverse to a competitor, in denial of title and his knowledge. To constitute adverse possession, the three classic requirements, which need to co-exist 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. Possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possesssion of seeks to defeat the rights of the true owner, Narasamma and others Vs. A. Krishnappa (Dead) through Lrs., 2020 (5) ALT (SC) 188 (Full Bench). In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial. [P.T. Munichikkanna Reddy and others ((2007) 6 SCC 59)]. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out [M. Siddiq (Dead) Through LRs (Ram JanmabhumiTemple Case) v. Mahant Suresh Das and others 2019 (6) ALT 383 (SC)] = (2020) 1 SCC 1. where there is permissive possession given by the owner and the defendant claims that the same had become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time, as was observed in Ram Nagina Rai and another v. Deo Kumar Rai (Deceased) by LRs and another (2019) 13 SCC 324. When a suit for declaration of title and recovery of possession is filed, a defendant can oppose the suit either on the basis of his title or on the basis of adverse possession, Thota VenkatReddy and others Vs. Polamoni Jangaiah GollaJangaiah and others, 2020 (4) ALT 512. In Karnataka Board of Wakf case (1996 1 SCC 639), it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. ….”.
Plea of adverse possession is a double edged sword:
In P Periasami v. P PeriathambiMANU/SC/0821/1995 : (1995)6SCC523 this Court ruled that – “Whenever the plea ofadverse possession is projected, inherent in the plea is that someone else was the owner of the property.” Any plea of adverse possession contains an admission that the opposite party is the owner of the property, but the said title of the opposite party has been extinguished because of the open hostilepossession with animus by the claimant for the statutory period. Therefore, by pleadingadverse possession a party admits the initial title of the opposite party which however is said to be extinguished. The law is also wellsettled and the case of Karnataka Board of Wakf v. Government of India (2) (2004) 10 SCC 779 = 2004 (5) ALT 1.1 (DN SC) is relevant for this case. Paras-11 & 12 of the said judgment is reproduced here.
“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 takespossession of the property and asserts a right over it. Adverse possession is a hostilepossession 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. Thepossession must be adequate in continuity, in publicity and in extent to show that theirpossession 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 SakinalMANU/SC/0236/1964 =  6 SCR 780, Parsinni v. Sukhi MANU/SC/0575/1993 = (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka MANU/SC/0766/1997 = AIR 1997 SC 2930).
Plea of adverse possession is not a pure question of law:
Physical fact of exclusive possession andthe 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 Plea of adverse possession is not a pure question of law should show (a) on what date he came intopossession, (b) what was the nature of hispossession, (c) whether the factum ofpossession 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 MANU/SC/0231/1996 : AIR 1996 SC 869).”See. Uppara Anjinappa (died) and others Vs. T. Khasim Sab (died) per LR and others, 2018 (5) ALT 511. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.”Pusapati LaxmiNarasayamma Vs. Alamanda Narayana and others, 2018 (5) ALT 95.
Proof of adverse possession:
The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A. prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he links that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. See. YallapiRajamma, @ Sarojanamma Vs. PadithamNarayana Rao and others, 2018 (1) ALT 251. As was held in Yallapi Rajamma’s case (supra), adverse possession needs to be pleaded and proved with certainty. The Courts will have to take the date on which the possession turned hostile and the manner in which thepossession was hostile vis-a-vis the true owner. The possession should be open continuous and hostile. The plea of adverse possession was required to be proved by the party raising it on the basis of proper pleadings and evidence The burden to prove such plea was therefore on the person who raised it, as was held by the Apex Court in Dagadabai(Dead) by L.Rs. Vs. Abbas @ GulabRustum Pinjari , 2017 (3) ALT (SC) 17 [DB].
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 suchpossession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.See. Mallikarjunaiah’s case, 2019 (3) ALT (SC) 277. In T. Anjanappa and others v. Somalingappa and another (1) (2006) 7 SCC 570, this Court held that mere possession, howsoever long it may be, does not necessarily mean that it is adverse to the true owner and the classical requirement of acquisition of title by adverse possession is that such possessions are in denial of the true owners’ title. The co-heir in possession cannot render his possession adverse to the other co-heir, merely by any secret hostile animus on his part in derogation of the other co-heirs title The Supreme Court made it clear as a settled rule of law that, as between co-heirs, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment by one to the knowledge of the other so as to constitute ouster See. S. Sugunamma Vs. B. Padmamma and others, 2017 (4) ALT 757 and P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957 SC 314).
Entries and Findings of Revenue Officials :
When the plaintiff approached the Court for declaration of title by adverse possession, it is for him to establish his case as was clarified in the recent decision in M. Narasimha Reddy Vs. T.L. Badraiah and others, 2022 (4) ALT 599, M. Chandraiah Vs. D. Vinod Kumar , 2022 (4) ALT 110. The person who claims adverse possession shall prove that from what date his possession has become adverse to the real owner. The claim of adverse possession does arise if the plaintiff is a tenant as was clarified by the Supreme Court in Patti@ BegariRamaiah (died) per LRs. and others Vs. State of A.P., rep. by the District Collector, RangaReddy District and others, 2022 (2) ALT (SC) 737 [DB]. To claim adverse possession, the appellants must be in possession of the property, which should be within the knowledge of the real owners. The plaintiffs must deny the title of the real owner and for that it is essential for the plaintiffs that they must clearly know the actual owner and then only the situation of being in hostile possession to the real owner arises. It is needless to say that the entries in the revenue records does not constitute a record for possession. Cist receipts cannot have any bearing since mere payment of cist cannot lead to an inference of possession and enjoyment of the land, see. ChintakuntaVenkata Subba Reddy’s case, 2021 (3) ALT 127. Similarly, mere long possession of plaintiff will not prima facie confer any title as is ruled in Kalkatiya Infra, rep. by its Managing Partner, K. Karunakar Reddy, Warangal Vs. Shyamapanth Venkatram and others, 2022 (2) ALT 154 [DB]. Any adjudication by Revenue Officials also cannot be relied upon, because they are not competent to decide title prima facie, as was held in Thota Venkata Reddy’s case, 2020 (4) ALT 512.
Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recover possession and to render him remediless.The rule is such that suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65, Ravinder Kaur Grewal and others Vs. Manjit Kaur and others, 2019 (5) ALT (SC) 38 [Full Bench]. There is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse posssession to sue to evict a person or to protect his possession. Section 27 of Limitation Act, 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit forpossession of any property. The right ripened by prescription by his adverse possession is absolute and on dispossession, he can sue based on title as envisaged in the opening part under Article 65 of Act. Under Article 65, the suit can be filed based on the title for recovery of possession within 12 years of the start ofadverse possession. A person inpossession cannot be ousted by another person except by due procedure of law and once 12 years period of advrse possession is over, even owners 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. It was observed in Smt. P. Shailaja Kumari @ Shaila Kumari, Hyderabad Vs. Vasantha Malavika and another, 2019 (4) ALT 191, after the Limitation Act, 1963 came into operation, it is not necessary for the plaintiff to state when she is dispossessed unlike under the Limitation Ac, 1908; and if the petitioner were to establish title, she would be entitled recovery ofpossession unless the defendant establishes better title and he is able to prove that he has acquired such title by adverse possession. Under Article 65 of the Limitation Act, the period of limitation of 12 years for filing a suit for possession of immovable property or any interest therein based on title begins to run when the possession of the defendants becomes adverse to the plaintiff, KunchakurthyVeera Sangaiah’s, 2018 (6) ALT 66 [DB].
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. 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 byanother 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. 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. See. Krishnamurthy S. Setlur (D) by Lrs. Vs. O.V. Narasimha Setty (D) by Lrs., 2019 (5) ALT (SC) 382 [DB].
In law, possession of one of the co-owners is deemed to be the possession of other co-owners as well, though only one co-owner is in exclusive possession., Ref. S. Ramachari’scase, 2021 (4) ALT 383 and thus in this ruling, it was held that a suit for partition, without a prayer for cancellation of sale deeds executed by coparceners of plaintiff without authority, is maintainable. Article 142 of Limitation Act, 1898 governs a suit for possession of immoveable property when the plaintiff while in possession has been dispossessed or “has discontinued the possession ”. The period of limitation under Article 142 is 12 years, ref: M.Siddiq’s case, 2019 (6) ALT (SC) 383. The Magistrate did not have jurisdiction to determine questions of ownership and title. The proceedings under Section 145 could not have resulted in any adjudication upon title or possession of the rightful owner as that is within the exclusive domain of civil courts. In a suit filed for possession based on title the plaintiff is bound to prove his title and pray for a declaration that he is the owner of the suit land because his suit on the basis of title cannot succeed unless he is held to have some title over the land. However, the main relief is of possession and, therefore, the suit will be governed by Article 65 of the Limitation Act, 1963. This Article deals with a suit for possession of immovable property or any interest therein based on title and the limitation is 12 years from the date when possession of the land becomes adverse to the plaintiff. In the instant case, even if the case of the defendants is taken at the highest, the possession of the defendants became adverse to the plaintiffs only on 19.08.1978 when possession was handed over to the defendants. Sopanrao and another Vs. Syed Mehmood and others, 2019 (6) ALT (SC) 71 [Full Bench].
Concept of Adverse Possession:
The doctrine of adverse possession is succinctly discussed by the Supreme Court in Shri Uttam Chand (D) through Lrs. Vs. NathuRam (D) through Lrs. & Ors., 2020 (5) ALT (SC) 89 [DB]. In T. Anjanappa ((2006) 7 SCC 570 = 2007 (2) ALT 1.2 (DN SC)), the Apex Court has set aside the finding of the High Court that the defendants claiming adverse possession do not have to prove who is the true owner. If the defendants are not sure who the true owner is, the question of them being in hostilepossession as well as of denying the title of the true owner does not arise. The Court held as under:
“12. The concept of adverse possession contemplates a hostile possession i.e. apossession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that hispossession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the propertyadversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property.
13. Possession to be adverse must bepossession by a person who does not acknowledge the other’s rights but denies them:
“24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to beadverse. It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners.” (See Vidya Devi v. PremPrakash [(1995) 4 SCC 496] , SCC p. 504, para 24.)
14. Adverse possession is that form ofpossession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person’s title.Possession is not held 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 e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
“ 14. … Adverse possession means a [hostilepossession ] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. …
15. Where possession can be referred to a lawful title, it will not be considered to beadverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that hispossession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543, p. 554 : AIR 1995 SC 895, p. 902] , SCC p. 554, paras 14- 15.)”
In Kurella Naga Druva Vudaya BhaskaraRao (3 supra), the payment of tax receipts and mere possession for some years was found insufficient to claim adverse possession . It was held that if according to the defendant, the plaintiff was not the true owner, hispossession hostile to the plaintiff’s title will not be sufficient. The Court held as under:
“19. The defendant claimed that he had perfected his title by adverse possession by being in open, continuous and hostilepossession of the suit property from 1957. He also produced some tax receipts showing that he has paid the taxes in regard to the suit land. Some tax receipts also showed that he paid the tax on behalf of someone else. After considering the oral and documentary evidence, both the courts have entered a concurrent finding that the defendant did not establish adverse possession, and that merepossession for some years was not sufficient to claim adverse possession , unless suchpossession was hostile possession, denying the title of the true owner. The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, hispossession hostile to the plaintiff’s title will not be sufficient and he had to show that hispossession was also hostile to the title andpossession of the true owner. After detailed analysis of the oral and documentary evidence, the trial court and the High Court also held that the appellant was only managing the properties on behalf of the plaintiff and his occupation was not hostile possession.”
In Brijesh Kumar and another v. Shardabai(Dead) by Legal Representatives and others (5) (2019) 9 SCC 369, the Court held as under:
“13. Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner as held in M. Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 : (2017) 5 SCC (Civ) 387] . The respondent had failed to establish peaceful, open and continuous possession demonstrating a wrongful ouster of the rightful owner. It thus involved question of facts and law. The onus lay on the respondent to establish when and how he came into possession, the nature of hispossession, the factum of possession known and hostile to the other parties, continuouspossession over 12 years which was open and undisturbed. The respondent was seeking to deny the rights of the true owner. The onus therefore lay upon the respondent to establishpossession as a fact coupled with that it was open, hostile and continuous to the knowledge of the true owner. The respondent-plaintiff failed to discharge the onus. Reference may also be made to Chatti Konati Rao v. PalleVenkata Subba Rao [Chatti Konati Rao v. PalleVenkata Subba Rao, (2010) 14 SCC 316 :(2012) 1 SCC (Civ) 452], on adverse possession observing as follows: (SCC p. 322, para 15)”
15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the 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 ofpossession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.””
As to whether the plaintiff can claim title on the basis of adverse possession, the Supreme Court in a judgment reported as Ravinder Kaur Grewal and others v. Manjit Kaur and others (6) 2019 (5) ALT 38 (SC) = (2019) 8 SCC 729 has held as under:
“60. 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. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.”
The matter has been examined by a Constitution Bench in M. Siddiq (D) through LRs v. Mahant Suresh Das and others (7) 2019 (6) ALT 383 (SC) = (2019) SCC OnLine SC 1440 wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under:
“747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other.Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. DrDhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
748. A person who sets up a plea ofadverse possession must establish bothpossession which is peaceful, open and continuous – possession which meets the requirement of being ‘nec vi nec claim and nec precario’. To substantiate a plea ofadverse possession, the character of thepossession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading paragraph 11(a), it becomes evident that beyond stating that the Muslims have been in long exclusive and continuouspossession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.
xx xx xx
752. In Supdt. and Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274, Justice R S Sarkaria, speaking for a three judge Bench of the Supreme noted that the concept ofpossession is “polymorphous. embodyingboth a right (the right to enjoy) and a fact (the real intention). The learned judge held:
“13. “It is impossible to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of “possession”. Much of this difficulty and confusion is (as pointed out in Salmond’sJurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. “possession”, implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes, ibid.).”
These observations were made in the context of possession in Section 29(b) of the Arms Act 1959.
In P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, Justice Jagannadhadas, speaking for a three judge Bench of the Apex Court dwelt on the “classical requirement” of adverse possession:
“4. Now, the ordinary classical requirement ofadverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.”
The court cited the following extract from U N Mitra’s “Tagore Law Lectures on the Law of Limitation and Prescription”:
“7…An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was inpossession. (Angell, Sections 390 and 398). It is the intention to claim adversey accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession.” (6th Edition, Vol. I, Lecture VI, at page 159)
The Supreme Court held:
“7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.”
In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779 = 2004 (5) ALT 1.1 (DN SC), Justice S Rajendra Babu, speaking for a two judge Bench held that:
“11…Physical fact of exclusive possession and the animus possidendi 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 shouldshow: (a) on what date he came intopossession, (b) what was the nature of hispossession, (c) whether the factum ofpossession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.”
The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law.
In Annakili v. A Vedanayagam, (2007) 14 SCC 308, the Apex Court emphasized that merepossession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the landadverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act.”
Necvi, Necclam and Necprecario are requirments. The adverse possession requires all these three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and necprecario i.e. adverse to a competitor, in denial of title and his knowledge.A suit can be filed by plaintiff on the basis of title acquired by way of adverse possession or on the basis of possession under Articles 64 and 65 and that there is no bar under Article 65 or any of the provisions of Limitation Act, 1963 as against a plaintiff who has perfected his title by virtue of adverse posssession to sue to evict a person or to protect his possession. Under Article 65 of the Limitation Act, the period of limitation of 12 years for filing a suit for possession of immovable property or any interest therein based on title begins to run when thepossession of the defendants becomesadverse to the plaintiff. Law never intends a person who has perfected title to be deprived of filing suit under Article 65 to recoverpossession and to render him remediless. Law of adverse possession does not qualify only a defendant for the acquisition of title by way ofadverse possession, it may be perfected by a person who is filing a suit. Whenever the plea of adverse possession is introduced, inherent in the plea is that someone else was the owner of the property.” The possession should be open continuous and hostile. The plea of adverse possession was required to be proved by the party raising it on the basis of proper pleadings and evidence The burden to prove such plea was therefore on the person who raised it. A plea of adverse possession impliesan admission of title which is supposedly extinguished.