PRINCIPLES OF ADVERSE POSSESSION
i) Merely a bald statement that there was Adverse Possession is not enough to set up a plea of Adverse Possession. It has to be clearly set out from which date it commenced and became hostile when there was repudiation of the title.
ii) There are 3 classic requirements of plea of Adverse Possession - "Nec Vi", "Nec Clam" and "Nec Precario" meaning peaceful, open and continuous respectively and it is important to plead and prove the same.
The Supreme Court cited the case of Karnataka Board of Wakf vs Union of India (2004) 10 SCC 779 which held that when litigation was pending regarding the property, it cannot be said that the possession was peaceful or hostile in any view of the matter. The relevant paras held:
“11. 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. Adverse possession is a
hostile possession by clearly asserting hostile title in denial of the title
of the 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. 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.
(See S.M. Karim v. Bibi Sakina AIR 1964 SC 1254, Parsinni v. Sukhi
(1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka
(1997) 7 SCC 567.) 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 should show: (a) on what date he came into possession, (b)
what was the nature of his possession, (c) whether the factum of
possession 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 the true owner, it is for him to
clearly plead and establish all facts necessary to establish his adverse
possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma
(1996) 8 SCC 128.]
12. A plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See S.M. Karim v. Bibi Sakina (Supra).) In P. Periasami v. P. Periathambi (1995) 6 SCC 523 this Court ruled that: (SCC p. 527, para 5)
“Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.”
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: (SCC pp. 640-41, para 4)
“4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”"
In light of the above rulings that to take up the plea of Adverse Possession one has to take into consideration the factual aspects of the ownership as the onus of proving the right of Adverse Possession falls on the person claiming the same.
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