Adverse possession- Law needs amendment

m v ghodke (service) 23 June 2009

Yes it should be amendment

Manish Singh (Advocate) 23 June 2009

Dear Sir,

but onlu living at a place for more than 12 years doesnot give him title of the property. if h acts as an agent thn he can not be declared as an owner. bt f trespasser id allowed to enjoy the property for more than 12 yrs it means we are sleeping over our rights nd in this situation law shall not help us.

in my opinion the law concerning eviction of unauthorised occupant should be made much in favour of the real owner and the eviction mattr should be completed in 6 months.

Swami Sadashiva Brahmendra Sar (Nil) 24 June 2009

thanks mr godke and Manish ji ! let us wait for sugestions of other friends.

Shree. ( Advocate.) 25 June 2009

Dear All,

Yes truely the law needed to amended or else abolised.

Latest authorities which lay down the proposition on the point of adverse possession are below:

In P.T.Munichikkanna Reddy and Others Vs.Revamma and Others, Civil Appeal No. 7062/2000 decided on 24.04.2007, theApex Court was pleased to make the following observations :-

"It is settled law that mere possession even if it is true for any number of years will not cloth the person in enjoyment with the title by adverse possession. As indicated supra, the important ingredients of adverse possession should have been satisfied. Adverse possession in one sense is based on the theory of presumption that the owner has abandoned the property to the adverse possession on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. [See Downing v. Bird 100 So. 2D (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock 227 Ark. 1085 : 303 S.W.2d 569 (1957); Mannotv. Murphy 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929)]. To understand the true nature of adverse possession, Fairweather v. StMarylebone Property Co [1962] 2 WLR 1020 : [1962] 2 All ER 288 can be considered where House of Lords referring to Taylor v. Twinberrow [1930] 2 K.B. termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation oflaw:

Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

1.Application of limitation provision thereby jurisprudentially "willful neglect"

element on part of the owner established Successful application in this regard

distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor

effectively shifts the title already distanced from the paper owner, to the adverse

possessor. Right thereby accrues in favour of adverse possessor as intent to

dispossess is an express statement of urgency and intention in the upkeep of the

property."

In other recent authority reported in T. Anjanappa Vs. Somalingappa, 2006(8)JT 382, it was held that mere possession, however, long does not necessarily means

that it is adverse to the true owner and in order to constitute adverse possession, the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. It was further held that classical

requirement are that such possession in denial of true owners' title must be peaceful,open and continuous

In Govindammal Vs. R. Perumal Chettiar, AIR 2007 SC 204 it was held that there must be a hostile open possession, denial and repudiation of rights of competitor and this denial and repudiation must brought home to competitors.

In Bhura Mogiya Vs. Satish Pagariya, 2001(9) SCC 385 it was held that

permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted and acquired adverse title to property to

the knowledge of true owner for a period of 12 years and above.

In Roop Singh Vs. Ram Singh, AIR 2000 SC 1485 it was held that mere possession for along time does not result in converting permissive possession into adverse possession.

In Krishnamurthy S. Setlur Vs. O.V. Narasimha Setty, 2007 (3) SCC 569 it was held :"The right extinguished is the right which the lawful owner has and against whom aclaim for adverse possession is made, therefore, the plaintiff who makes a claim for adverse possession has to plead and prove the date on and from which he claims to be in exclusive, continuous and undisturbed possession. The question whether

possession is adverse or not is often one of simple fact but it may also be a conclusion of law or a mixed question of law and fact. The facts found must be accepted, but the conclusion drawn from them, namely, ouster or adverse possession

is a question of law and has to be considered by the court."

1 Like

Shree. ( Advocate.) 28 June 2009

Adverse Possession – A heavy burden lies on the shoulders of the plaintiff to gain the benefit on the basis of adverse possession.

The submission made by the Counsel for the defendant/respondents that a heavy burden lies on the shoulders of the plaintiff to gain any benefit on the basis of adverse possession. The witnesses examined on behalf of the plaintiff are also of no help. Findings regarding adverse possession by the two Courts is absolutely legal and nothing has been brought on record to establish the right of adverse possession by the plaintiff. Court do not find any error of law in the two judgments while discarding the case of the plaintiffs adverse possession and thus refrain from interfering in the findings of fact.

(Mool Chand v. Smt. Neelam Devi and Another; 2008 (105) RD 243)

RAKHI BUDHIRAJA ADVOCATE (LAWYER AT BUDHIRAJA & ASSOCIATES SUPREME COURT OF INDIA) 29 June 2009

Thanx Mr. Shree for the judgements.

V.V.RAMDAS (Advocate) 04 August 2009

Mr Sree thanks a lot for you contribution. I think you are encyclopedia of decisions.

Pvt_RajKing (Private) 17 September 2010

The law as laid down by the Supreme COurt and many High COurts is clear as to what the adverse possession is and isn't and the specific set of criteria to be met etc... A plain reading of the judgments referred above and more (i have many local and international judgments if you need. send me a PM) is NOT in favor of adverse possession and it is indeed very difficult to setup a case for adverse possession.. that is a good thing as far as the law...BUT....

The problem is with police and local courts...

POLICE folks strongly believe that once someone is in possession then the true owner can't touch him which is a rediculous stand and is against the law. Even senior police officers believe in it.... They failed to appreciate that the possessory right is something that the possessor has to establish thru court and cannot claim straight away as a right with the law enforcement or any other authorities... This has not be recognized by law enforcement folks yet..

I have a situation in Tamil Nadu in which one of my land was tresspassed and cultivated in my absence as we don't live there... (we have been living in other state for more than a decade).... When we learned of the tresspass, we stopped him from entering the land.... we didn't cultivate but the left over crop/seeds grow out of rain and have some plants there that can be harvested and the tresspasser now cliams again that he seeded them and thus wants to harvest... He is bribing the police guys and the police guys are so dump that they are telling me that I should let them harvest that crop because he cultivated once before getting kicked out...

I am telling them that the police cannot decide who is in possession; only the revenue court or a civil court can, but they are not listening...

Does anyone know of any good judgment(s) against police interference in such civil matters? I would appreciate your help with the same..

Thanks