A party claiming adverse possession must prove that his possession is peaceful, open and continuous #indianlaws

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 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.

The instant appeal had its origin in a suit filed by the respondent in the Court of City Civil Judge, Bangalore.

A suit was filed for declaration of title to the suit property wherein it was claimed by the Respondent in the instant appeal that she had purchased the property from its previous owner and had constructed a building thereupon. The said suit property was part of land, hereinafter referred to as the ‘scheduled property’, was acquired by the State Government for Bangalore Development Authority (Appellant/ BDA), for which Notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 1984 followed by a declaration under Section 6 of the Act in the year1986. Possession thereof was handed over to the BDA in the year 1988 however, apparently the actual possession of the suit property remained with the original owner who then sold it to the Respondent in the year 1994. It is on this basis Respondent filed the suit on the ground that she was in possession of the said property for more than 12 years even after the acquisition thereof by the State Government and, in this manner, had perfected her title by adverse possession.

Appellant contested the said suit by raising the plea that since the scheduled property had been acquired by the Government for formation of the layout and with effect from the date of final notification entire land vested with the Government; the Respondent was precluded from claiming the possession thereof on the ground that it was already with her. Further, as the land vested with the Government, the limitation under Article 112 of the Limitation Act, 1963 was 30 years and not 12 years and, therefore, the Respondent could not claim adverse possession before the expiry of 30 years.

Trial Court decided all the issues in favour of the Respondent and suit was accordingly decreed declaring that Respondent is the owner in possession of the suit property having perfected her title by way of adverse possession. High Court vide its impugned judgment affirmed the decree passed by the trial court.

Appellant submitted that even if it is presumed that limitation period for claiming adverse possession is 12 years, in the instant case, that ingredient has not been satisfied by the Respondent even on the basis of admitted facts. Further in order to lay claim of ownership on the basis of adverse possession, it has to be proved that such adverse possession is open and uninterrupted to the enjoyment of BDA for more than 12 years, which essential requirement had not been satisfied.

Primarily, it was the thus the plea of adverse possession which Court took into consideration for adjudication. Making reference to various precedents, Court came up with following as key essentials to satisfy claim of adverse possession:

1. In the eye of the 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.
2. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner.
3. 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 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.
4. 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.
5. 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 on what date he came into possession, the nature of his possession, whether the factum of possession was known to the other party, duration of his possession and his possession if, was open and undisturbed.
6. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
7. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant’s possession becomes adverse.
8. “Animus possidendi” is one of the ingredients of adverse possession. Unless the person possessing the land has the requisite animus the period for prescription does not commence.
9. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession 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.

The act of the BDA in demolishing the existing structure said property would amply demonstrate that there was no unhindered, peaceful and continuous possession of the suit land.

Based on above principles, appeal was allowed and thereby claim of adverse possession as raised by Respondent in the instant appeal was declined.

[Bangalore Development Authority vs. N. Jayamma]

(SC, 10.03.2016)

Civil Appeal No. 2238 of 2016