Supreme Court Summarises Principles On Adverse Possession

Supreme Court, in its recent decision of Government of Kerala & Anr. V. Joseph and Others discussed several principles concerning the adverse possession.

At the outset the Court observed, “Possession must be open, clear, continuous, and hostile to the claim or possession of the other party; all three classic requirements must coexist- 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 knowledge.” In this regard, the Court relied upon several judgments including the landmark case of Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779.

Further, the Court reiterated that the person claiming adverse possession must show clear and cogent evidence substantiate such claim (Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591). It went on to observe that “Mere possession over a property for a long period of time does not grant the right of adverse possession on its own” (Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr., (1984) 2 SCC 286) and “Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner”.

Elucidating the importance of animus possidendi the Court opined “that permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.” (L.N. Aswathama v. P. Prakash, (2009) 13 SCC 229). The Court clarified the above plea is available not only as a defence when title is questioned, but is also available as a claim to a person who has perfected his title.

Also, mere passing of an ejectment order does not cause brake in possession neither causes his dispossession (Balkrishna v. Satyaprakash, (2001) 2 SCC 498).

More Importantly, the Court while referring to the State of Rajasthan v. Harphool Singh, (2000) 5 SCC 652, observed that when the land subject of proceedings wherein adverse possession has been claimed, belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to Destruction of a right/title of the State to immovable property. In Harphool Singh, the Apex Court held:

“12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none.”

 A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse. The Court is not to travel beyond pleading to give any relief, in other words, the plea must stand on its own two feet. (V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551)

With respect to the burden of proof the Court opined that the same rests on the person claiming adverse possession. Initially the burden lied on the landowner to prove his title. Thereafter it shifts on the other party to prove title by adverse possession.

 In the end, the Court also observed that the State, on the other hand, cannot claim the land of its citizens by way of adverse possession as it is a welfare State. (State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404)

Also Read - When Adverse Possession Is Claimed Over Government Land, Courts Must Act With Greater Care : Supreme Court

Case Title: Government of Kerala & Anr. V. Joseph and Others, Civil Appeal 3142 Of 2010

Citation : 2023 LiveLaw (SC) 621; 2023 INSC 693

Click here to read the judgment