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Limitations Of Adverse Possession

The concept of adverse possession is much used in Courts dealing with right, title, possession, and interest on immovable property. Physical control or exercising dominion with consciousness in the mind of a person having dominion over an object that he has it amounts to possession. Adverse possession means a hostile possession against the true owner. It is a type of actual possession by a person which is expressly or impliedly in denial of title of the true owner.

The claimant of adverse possession denies title of true owner dispossessed by him. Adverse possession is hostile possession, under a claim or colour of title, actual, open, notorious, exclusive, and continued for a definite period required by law giving rise to an indefeasible right maturing into ownership with the adverse possessor by operation of Law of Limitation. But all possessions clothed as adverse possession don't extinguish title of true owner. In the present article an effort has been made to note down checks/hindrances to adverse possession.

Cases Where Claim Of Adverse Possession Can't Be Taken:
  1. When there is no rightful claimant to the property in question, no claim of adverse possession can be raised:
    1. In a suit for adverse possession the claimant must plead and prove that a particular person is true owner, and his possession is hostile to said true owner. When the rightful true owner is yet to come into existence then there cannot be adverse possession. See The Dy. Commissioner For Hindu Religious Charitable Endowment Board v. K. SidhdhivinayagaMudaliari[1971 (1) M.L.J. 422];Dodipatla Kameswara Rao v. TaramitalaSomanna[AIR 1955 A.P. 212]
    2. The right to 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.PalaniyandiMalavarayan v. Vadamalai Vidayan', [2 MLW 723] & [AIR 1916 Mad. 1001 (A)].
    3. Since however there were no properly constituted trustees of the plaintiff-temple there was no person with knowledge of the acts of the defendants or capable of taking proceedings necessary for the protection of the suit property and, therefore, possession was not adverse until the appointment of trustees in 1900. Manickkam Pillai v. Thanikachallam Pillai, [AIR 1917 Mad 706 (1) (B)]
    4. With regard to the question, 'If Article 120 of the Limitation Act is applicable, when does limitation commence to run?' it has been observed that:
      There can be no cause of action until there is a party capable of suing and until there is a cause of action there can be no question of the law of limitation coming into operation.A.N.C.T. Subbiah Thevar, Trustee of Sree Vedapuriswaraswami Koil and Others Vs. N.R. Samiappa Mudaliar and Others, [AIR 1938 Mad 353] :[(1938) ILR (Mad) 586] : [(1938) 47 LW 344] : [(1938) 1 MLJ 334]
  2. Possession acquired in view of contract can't be adverse:
    1. A person in possession based on a contractual transaction cannot be permitted to plead adverse possession; K. Ramabrahmam v. G. Narsingh Rao [2006 (6) AndhLD 353].
    2. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.Achal Reddy v. Ramakrishna Reddiar [AIR 1990 SC 553]
    3. A possession of immovable property delivered in view of contract for sale cannot take shape of adverse possession. Baruna Giri v. Raj Kishore Giri [AIR 1983 Ori 107], State Bank of Travancore v. A.K. Panicker [AIR 1971 SC 996], Shiv Kumar v. Ahodhia Nath [AIR 1972 J & K 125 (F.B.)], Tajibai v. Hassan Khan [Air 1987 MP 219], Sarat Kumar Panda and another. -Vs.- Sashibhusan Tripathy and another [AIR 2014 Orissa 182], Brundaban Ghanta v. Saila Beg [2018 (II) CLR 31], Ramanath v. Umesh Ch. Behera [2019 (I) CLR 19]
    4. Possession of vendor on property sold after execution of sale deed cannot be adverse. It would be subject to nature and terms of the contract of sale and contemporaneous agreement reached between parties. Gulab Chand Chaurasia v. Ram Sewak [1989 A.W.C. 1485]
  3. No adverse possession in the absence of "a competitor"
    Unless "a competitor" capable of suing or taking steps to oust the adverse possessor is there, the adverse possession could not commence. Dodipatla Kameswara Rao v. TaramitalaSomanna [(1954) 2 M.L.J. 228], Venkateswara Sarma v. S. N. Venkatesa Aiyar [(1941) 1 M.L.J. 644 (K.B.)]
  4. No adverse possession in case of estate not recognized in law:
    1. Adverse possession can be claimed about property recognized by law. It cannot be claimed against property/estate not recognized in law. Jeth Bhai Parbhudas v. Natha Bhai Bavaji [ILR 28 Bom. 399], Ajmer Singh v. Smt. Bhagat Kaur [63 Punjab L.R. 10]
    2. Right of fishery by a person as a member of the public to fish in a non-tidal river is not recognized by law. It cannot be acquired by adverse possession.
  5. There can be no adverse possession as to non-alienable land.
    1. Alienation of Watan lands is prohibited in the interest of the State. Title by adverse possession on said land is incapable of acquisition by a stranger. Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande [AIR 1923 P.C. 205].
    2. The Inam land (Zamindari) impartible and inalienable cannot be acquired by adverse possession.Karimullakhan v. Bhanupratap Singh [AIR 1949 Nag 265]. A person if creates a deed having no alienable right or violating law by document being void, adverse possession will not start. Amarendra Pratap Singh v. Tej Bahadur Prajapati [2004 (II) OLR SC 117].
  6. Adverse possession cannot be claimed by a non-tribal on property belonging to a tribal person in tribal area covered by Orissa Scheduled area, Transfer of Immovable Properties by Scheduled Tribes Regulation 1956 (Odisha Regulation 2 of 1956). LincaiGamango v. Daya Nidhi Jena [2004 (I)CLR (SC) 208], Amarendra Pratap Singh v. Tej Bhadur Prajapati [98(2004) CLT 19(SC)], Hembo Oram v. Addl. Dist. Magistrate [2008 (Supp-II) OLR 1043], Jogendra Panda -Vs.- Collector, Kalahandi and ors. [AIR 2014 Orissa 167], Subasini Patra v. A.D.M. Mayurbhanja, [vide O.J.C. No. 2840 of 2001 D.O.D. 14.07.2017 by Hon'ble High Court of Orissa]
  7. Adverse possession cannot be claimed by a non-scheduled caste person on property of a scheduled caste person by-passing requirement of permission under Section 22, 22(A) of OLR Act.
  8. There can be no adverse possession when possessor was ignorant of possessing land of someone else.
    The animus to hold the land adversely to the title of the true owner can be said to have started only when the claimant derived knowledge that his possession over the suit land is an act of encroachment as to true owner. A person mistaking property of another as his property cannot raise plea of adverse possession due to lack of hostile animus on his part. Devi v. Sajjan Kumar [AIR 2003 SC 3907], [2006 (2) CLR 472 (SC)], [2005 (3) CCC 295 (Knt.)],
  9. No adverse possession can be claimed by a person in possession as trustee.
    When trustee is entrusted with the property, he does not take it in his own (personal) capacity with hostile animus. He possesses the property as trustee and cannot claim adverse possession. Dodda Narayan Sa v. A.Hanumanthappa[AIR 1953 Mys. 25].
  10. No adverse possession if the claimant was invitee or dependant.
    Possession of invitee or dependant of property is not treated as adverse possession in the eyes of law. Nur Mahamad v. Sher Khan [AIR 1977 Gau. 15].
  11. There cannot be adverse possession against a person kept out of possession by process of law.Friends Bureau v. Corporation of Calcutta[AIR 1980 Cal. 57].
  12. Husband and wife cannot claim title by adverse possession against each other.
    Their possession on property each considered as joint occupancy during the continuance of the marriage relationship.
  13. Possession of parent and child, guardian and ward cannot be adverse against each other. Such possession is considered as permissive possession and cannot be adverse possession.
  14. No adverse possession by a member of a joint family against the other as to undivided property:
    Under the concept of joint family, the person in possession of the property holds the property in representative character and for the benefit of others. Thus, there is no scope of adverse possession. But plea of ouster to the exclusion of other joint family members can be raised.
  15. Adverse possession cannot be claimed against next reversioner.
    No adverse possession can be acquired against the next reversioner during the lifetime of limited owner. Kalawatibal v. Solrya Bai [AIR 1991 SC 1581].

    Transferee by life estate holder is not entitled to raise plea of adverse possession against full owner GuruvayoorDevaswom Managing Committee, Thrissur -Vs- P.K.Varkey Son of Kunhippalu and others. [AIR 2014 KERLA 152]
  16. No adverse possession against alienee of an undivided interest can commence in favour of non-alienating co-parceners till the alienee becomes entitled to possession by partition. By operation of law, he is not entitled to possession of un-divided joint family interest till he gets it by filing suit for partition. Possession of non-alienating co-parceners would not therefore be adverse to the alienee seeking partition. M.V.S. Manikayala Rao v. Narsimha Swami [AIR 1966 SC 470], Smt. Dei v. Baidhar Barik [2002 (II) OLR 211].
  17. Disruption to period to claim adverse possession by operation of law:
    1. Symbolical possession availed to dispossess the defendants sufficiently, because they were parties to the proceedings in which it was ordered and given.Sri Radha Krishna Chandraji v. Ram Bahadur [AIR 1916 PC 197(2)].
    2. Delivery of symbolic possession by executing Court to auction purchaser interrupts adverse possession. M.V.S. Manikayala Rao v. M. Narasimha Swami [AIR 1966 SC 470], [2008 (II) OLR 904].
  18. Where possession is lawful in the inception, it will not become adverse by subsequent arrangement, unless hostile animus was expressed at any particular time to the knowledge of lawful owner. (Smt.) Chanchala @ Tuani Pradhan v. Harihar Behera [2004 (Supp.) OLR 175].
  19. State cannot acquire title by adverse possession against its subject. Vidya Devi v. The State of H.P.[2020 (I) CLR (SC) 505].
  20. No adverse possession plea can be taken by Sebayat against the deity.
    The property endowed to idol - Shebayat in possession of property is not entitled to claim the possession adverse to the idol.Sree Sree Ishwara Sridhara Jew v. Sushila Bala Dasi [(1954) AIR(SC) 69]/[(1954) 1 SCR 407], Shyamasundar Nath Suthoo v. Raghunath Jew Thakur [AIR 1954 Ori 78]. Shri Jagannath Mahaprabhu v. Bhagaban Das [AIR 1951 Ori 255].
  21. Tenant cannot take plea of adverse possession against its landlord as to the property given on rent.
    Possession of tenant is always permissive and such permissive possession cannot be said to be adverse unless specific plea is taken and established. Krushna Chandra Nath v. Kulamani Mohapatra [2009 (Supp.-1) OLR 530].Rajkishore Subudhi v. Sri Lachhaman Balaji Dev [2022 (I) CLR 711].
  22. No adverse possession on a property which is classified and reserved for any public purposes like water body, road, park etc. No adverse possession plea can be taken when public is actual beneficiary possessing and enjoying. The claimant of adverse possession is himself a member of the public. He can't claim adverse possession against himself.
  23. In the case of properties reserved for public purposes, a dual ownership is being created in legal ownership and beneficial ownership. The legal ownership is vested in the Government while the beneficial ownership is vested in the beneficiaries/public. The occupier should not only prove his animus as against the legal owner but also as against the beneficial owners i.e. general public. Interestingly, the occupier is also one of the beneficial owners for whose benefit the said property is classified and reserved by the legal owner. In such circumstances, the occupier cannot have an animus as against each one of the individuals of the public. When the occupier himself is a beneficial owner, the question of acquiring title by adverse possession does not arise at all.The private rights of an individual to acquire title by adverse possession cannot be upheld when the same is put up against the public rights of the beneficial owners. Thankappan v. The State of Tamil Nadu [(2022)1 LW 708].
  24. Permissive possession cannot ripe into adverse possession.
    Raj Kishore Subudhi v. Sri Lachhaman Balaji Dev, Bije Danda Sahi, Ranapur Town. [2022 (I) CLR 711], Kurella Naga Druva v. Lalla Jani Kamma [2008 SAR (Civil) 783]. Sri Sarbeswar Mohanty v. Chintamani Sahoo [88 (1999) CLT 433 (SC)], State Bank of Travancore v. Arvinda Kunju Panicker [AIR 1971 SC 996], Nirakar Das v. Gourhari Das [1995 (I) OCR 526], Narasingha Muduli v. Padma Charan Naik [(1989) 31 OJD 633 (Civil)], Harischandra Jal v. Indrajit @ Jita Das [2019 (II) CLR 1016], Madhusudan v. State of Orissa [2019 (II) CLR 1001].
  25.  Occupancy right cannot be acquired by adverse possession.
    Champabati Bewa @ Kabi v. Kanhu Mallick Vol. 33 [(1991) OJD 154 (Civil)]; Bachana Kumari Dei vs. State of Orissa &Ors. 2022(I) CLR-1047
  26. Payment of penalty in encroachment case, a setback to plea of adverse possession.Smt. Tribeni Biswal v. State of Odisha &Ors[2015 (II) CLR 645], Narendra Pattasani v. Collector of Khurda[2022 (I) CLR 9], State of Orissa v. Jaladhara Sha [2019 (I) CLR 456/ AIR 2019 Ori 48]
  27. Right of Adverse Possession cannot be claimed against an abutting Govt. land existing between a private land and public road. Adikanda Swain v. Debraj MishraDecided on 13.08.2015 by Hon'ble High Court of Orissa[LAWS (ORI)-2015-8-97]
  28. Sub-merging of part of land by water interrupt period for adverse possession.
    Sub-merging of part of land by water does not affect the legal possession of the plaintiff. There would be no continuance of adverse possession when the land remains submerged and when it is put out of use and enjoyment. In such a case the party having title could claim constructive possession provided the title had not been extinguished by adverse possession before the last sub-mergence. There is no difference in principle between seasonal submersion and one which continues for a length of time.M. S. Jagadambal v. Southern Indian Education Trust[AIR 1988 SC 103]
  29. he concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour. Dr. M.S. Patil Vs. Gulbarga University and Others AIR [2010 SC 3783], State of Orissa v. Mamata Mohanty [(2011) 3 SCC 436].
  30. Where the assertion of right is secret and not open, the possession cannot be held to be adverse.
  31. There cannot be acquisition of title by way of adverse possession when the claimant was not in adequate term of possession prior to the suit. Khageswar Naik V. Domuni Bewa [AIR 1989 Ori 10]
  32. No adverse possession can be claimed against property of deity.
    As the god is incapable of managing his property he should be deemed a perpetual minor for the purpose of limitation.Chttar Mal vs. Panchu Lal, [AIR 1926 All 392], Vidya Varuthi Thirtha vs. Balusami Ayyar, [AIR 1922 PC 123], Rama Reddy vs. Rangadasan[AIR 1926 Mad 769],
  33. Where the plaintiffs claim to be the owners of suit property on the basis of inheritance, they cannot plead adverse possession over the very same property.-M. Venkatesh and Ors. Vrs. Commissioner, Bangalore Development Authority [2015 (II) CLR (S.C.) 981]; Adverse Possession and Inheritance These are two inconsistent alternative pleas, which are not permissible. Lavkush Malviya Vrs. Smt. Suman Devi & others2019 (1) Civil Court Cases-433 (Allahabad)
So, in short, one can say that the Hon'ble Apex Court, Hon'ble High Court, and the legislature of India, both have tried to maintain a thoughtful balance between the interest of the owner and the adverse possessor regarding the property keeping in view the right of both sides. By the laws laid down by the Hon'ble Courts and legislators' weaker sections of society have been protected. Public policy, rule of law, interest of deity has also been protected in above mentioned case laws. Hence in every case the adverse possession does not ripe into title of trespasser.

  1. Judgment dated 18.03.2024 in a case of M. Radheshyamlal Vs. V Sandhya and Anr. in Civil Appeal Nos.4322 � 4324 of 2024 arising out of SLP (C) Nos. 19059-19061 of 2014 of Supreme Court of India.
  2. Judgment dated 26.04.2019 in the case of Mallikarjunaiah Vs. Nanjaiah & Ors. in Civil Appeal No. 7768 of 2011 of Hon'ble Supreme Court reported in AIRONLINE 2019 SC 208
Written By: Shri Amruta Ranjan Nanda, LL.M, Judge, Family Court, Rayagada

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