HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR

DRAFTING, PLEADING AND CONVEYANCE

Projects

On

“Concept of Adverse Possession and its consequences”

Submitted to: Submitted by:

Mr. Parvesh Rajput Sumit Sharma
Faculty : Drafting, Pleading and Conveyance Roll No: 157

Sem:VIII

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 ACKNOWLEDGEMENTS

The successful completion of any task would be, but incomplete, without the mention of
people who made it possible and whose constant guidance and encouragement crowned my
effort with success.

I would like to thank my course teacher Mr. Parvesh Rajput for providing me the topic of my
interest. Also I would like to thank our Vice Chancellor for providing the best possible facilities
of I.T and library in the university.

I would also like to extend my warm and sincere thanks to all my colleagues, who contributed
in innumerable ways in the accomplishment of this project.

Sumit sharma
Roll No.157
Semester VIII

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 Contents
Acknowledgement ..................................................................................................................... 2

Objectives……………………………………………………………………………………..4

Research methodology………………………………………………………………………...4

Introduction................................................................................................................................ 4

The Legal Position and Principles Governing Adverse Possession .......................................... 6

Justification for Adverse Possession ......................................................................................... 8

Criticism of Adverse Possession ............................................................................................... 8

Consequences …………………………………………………………………………………9

Factual Matrix .......................................................................................................................... 10

Draft of Plaint for Adverse Possession .................................................................................... 11

[Plaint].................................................................................................................................. 11

[Written Statement] .............................................................................................................. 13

Bibliography ............................................................................................................................ 15

Statute: ................................................................................................................................. 15

Books/Papers: ...................................................................................................................... 15

Web Source: ......................................................................................................................... 15

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 OBJECTIVES

The main objectives of this project are :-

1. To study the concept of Adverse possession

2. To study the legal position and principles of Adverse possession

3. To study the consequences of Adverse possession

RESEARCH METHODOLOGY

This is a doctrinal research project. This research paper is based on secondary and electronic
sources. Websites and articles have also been referred. Footnotes have been provided wherever
needed, to acknowledge the source. The method of research used in the proposed study is
analytical, comparative, critical and empirical in nature.

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 Introduction

Adverse possession is legal doctrine that allows a person who possesses or resides on someone
else's land for an extended period of time to claim legal title to that land. If successful in proving
adverse possession, the claimant is not required to pay the owner for the land.

Adverse possession is sometimes called squatter’s rights, although squatter’s rights are a
colloquial reference to the idea rather than a recorded law.
The claim to rights and interests in relation to property on the basis of possession has been
recognized in all legal systems. Uninterrupted and uncontested possession for a specified
period, hostile to the rights and interests of true owner, is considered to be one of the legally
recognized modes of acquisition of ownership. The prescription of periods of limitations for
recovering possession or for negation of the rights and interests of true owner is the core and
essence of the law of adverse possession. Right to access to Courts is barred by law on
limitation. The conditions necessary for the acceptance of a claim based on adverse possession
have been laid down basically by way of Judge-made law. Several exceptions to the concept
of adverse possession based on legal relationship between the title holder and the person in
actual possession as well as the character of land are also recognized by law. Permissive
possession or possession without a clear intention to exercise exclusive rights over the property
is not considered as adverse possession.1

Adverse possession is of two kinds, according as it was adverse from the beginning, or has
become adverse subsequently. Thus, if a mere trespasser takes possession of as property, and
retains it against him; his possession is adverse ab initio. Where a person possesses property in
a manner in which he is not entitled to possess it, and without anything to show that he
possesses it otherwise than an owner (that is, with the intention of excluding all persons from
it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of
a field of B’s, he is in adverse possession of it unless there is something to show that his
possession is consistent with recognition of B’s title.

The concept of adverse possession contemplates a hostile possession i.e. a possession which is
expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be
possession by a person who does not acknowledge the others rights but denies them. The

1
http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf

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principle of law is firmly established that person who bases his title on adverse possession must
show by clear and unequivocal evidence that his possession was hostile to the real owner and
amounted to denial of his title to the property claimed.

For deciding whether the alleged acts of a person constitute adverse possession, the animus of
the person doing those acts is the most crucial factor. Adverse possession is commenced in
wrong and is aimed against right. A person is said to hold the property adversely to the real
owner when that person in denial of the owner’s right excluded him from the enjoyment of his
property.

The Legal Position and Principles Governing Adverse Possession

The Supreme Court of India in the case of Karnataka Board of Wakf v GOI2 observed, “in the
eye of 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
rights over it and the person having title omits or neglects to take legal action against such
person for years together.”

In the case of Amrendra Pratap Singh v Tej Bahadur Prajapati3 it was stated that “The process
of acquisition of title by adverse possession springs into action essentially by default or inaction
of the owner”.

The essential requisites to establish adverse possession are that the possession of the adverse
possessor must be neither by force nor by stealth nor under the license of the owner. It must be
adequate in continuity, in publicity and in extent to show that the possession is adverse to the
paper owner.

The law on adverse possession is contained in the Indian Limitation Act, 1963, Article 65,
Schedule I of The Limitation Act prescribes a limitation of 12 years for a suit for possession of
immovable property or any interest therein based on title. It is important to note that the starting
point of limitation of 12 years is counted from the point of time “when the possession of the

2
(2004) 10 SCC 779
3
(2004) 10 SCC 65

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defendants becomes adverse to the plaintiff”. Article 65 is an independent Article applicable to
all suits for possession of immovable property based on title i.e., proprietary title as distinct
from possessory title.

Article 64 governs suits for possession based on possessory right. 12 years from the date of
dispossession is the starting point of limitation under Article 64. Article 65 as well as Article
64 shall be read with Section 27 which bears the heading – “Extinguishment of right to
property”. It lies down: “At the determination of the period hereby limited to any person for
instituting the suit for possession of any property, his right to such property shall be
extinguished.”

That means, where a cause of action exists to file a suit for possession and if the suit is not filed
within the period of limitation prescribed, then, not only the period of limitation comes to an
end, but the right based on title or possession, as the case may be, will be extinguished. The
section assists the person in possession to acquire prescriptive title by adverse possession.
When the title to property of the previous owner is extinguished, it passes on to the possessor
and the possessory right gets transformed into ownership. Section 27 is an exception to the well
accepted rule that limitation bars only the remedy and does not extinguish the title.

The legal position as regards the acquisition of title to land by adverse possession has been
succinctly stated by the Judicial Committee of the Privy Council in Perry v Clissold4:

“It cannot be disputed that a person in possession of land in the assumed character of owner
and exercising peaceably the ordinary rights of ownership has a perfectly good title against
the entire world but the rightful owner. And if the rightful owner does not come forward and
assert his title by the process of law within the period prescribed by the provisions of the statute
of Limitation applicable to the case, his right is forever extinguished and the possessory owner
acquires an absolute title.”

This statement of law has been accepted by the Supreme Court of India in the case of Nair
Service Society Ltd. v K.C. Alexander5. The Bench consisting of three Judges observed thus:

“The cases of the Judicial Committee are not binding on us. But we approve of the dictum in
1907 AC 73. No subsequent case has been brought to our notice departing from that view. No

4
(1907) AC 73, at 79
5
AIR 1968 SC 1165

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doubt, a great controversy exists over the two cases of (1849) 13 QB 945 and (1865) 1 QB 1.
But it must be taken to be finally resolved by 1907 AC 73. A similar view has been consistently
taken in India and the amendment of the Indian Limitation Act has given approval to the
proposition accepted in 1907 AC 73 and may be taken to be declaratory of the law in India.”

Justification for Adverse Possession

The rationale for adverse possession rests broadly on the considerations that title to land should
not long be in doubt, the society will benefit from someone making use of land the owner leaves
idle and that that persons who come to regard the occupant as owner may be protected. The
maxim that law and equity does not help those who sleep over their rights is invoked in support
of prescription of title by adverse possession. In other words, the original title holder who
neglected to enforce his rights over the land cannot be permitted to re-enter the land after a long
passage of time. A situation lasting for a long period creates certain expectations and it would
be unjust to disappoint those who trust on them.

Criticism of Adverse Possession

Some legal scholars in foreign countries have pleaded for abolition of adverse possession
describing it as legalized land theft and a means of unjust enrichment. It has also been pointed
out that there is no certainty in the law of adverse possession and the courts in several cases
have wrestled with the meaning of the expressions – actual, continuous, open, hostile and
exclusive possession.

The Supreme Court of India, has in two recent decisions, namely, Hemaji Waghaji v
Bhikhabhai Khengarbhai6 and State of Haryana v Mukesh Kumar7 has pointed out the need
to have a fresh look at the law of adverse possession and described the law of adverse
possession as irrational, illogical and wholly disproportionate and “extremely harsh for the true
owner and a windfall for dishonest person who had illegally taken possession of the property”

6
AIR 2009 SC 103
7
2011(10) SCC 404

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Consequences
A disseisor will be committing a civil trespass on the property he has taken and the owner of
the property could cause him to be evicted by an action in trespass ("ejectment") or by bringing
an action for possession. All common law jurisdictions require that an ejectment action be
brought within a specified time, after which the true owner is assumed to have acquiesced. The
effect of a failure by the true landowner to evict the adverse possessor depends on
the jurisdiction, but will eventually result in title by adverse possession.
In other jurisdictions, the disseisor acquires merely an equitable title; the landowner is
considered to be a trustee of the property for the disseisor.
Adverse possession extends only to the property actually possessed. If the original owner had
a title to a greater area (or volume) of property, the disseisor does not obtain all of it. The
exception to this is when the disseisor enters the land under a colour of title to an entire parcel,
his continuous and actual possession of a small part of that parcel will perfect his title to the
entire parcel defined in his colour of title. Thus, a disseisor need not build a dwelling on, or
farm on, every portion of a large tract in order to prove possession, as long as his title does
correctly describe the entire parcel.

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Factual Matrix

The plaintiff owned and possessed a plot of land measuring 60 acres in a village of Allahabad.
Late Suraj Kumar, father of the defendant gave it (land) to late Vijay Kumar on 09-09-84 by
executing a Katcha Gift Deed in presence of village people.

Late Suraj Kumar and Late Vijay Kumar were two brothers from the same parents and Late
Suraj Kumar did it because he left his native village and settled in a separate village as he
married there. Before leaving his village he gave his share of property to his younger brother
Late Vijay Kumar. Since 1985 Shri Vijay Kumar was in possession of the said land. The sons
of Vijay Kumar were also in possession of the said land.

They planted various types of valuable trees, coconut, banana trees in some portions they also
cultivated seeds of rice. They also grew vegetables and the boundary fencing was constructed
by them and the land was in their possession.

In the meantime, both the brothers have been expired. The defendants made an attempt to
occupy the land after lapse of 30 years and tried to demolish the boundary fencing, but failed
to occupy the land. The land is still under the possession of the plaintiff and they have paid the
land revenue for the suit land in his own name and he has electricity connection of his premises.

The defendants have no right over the suit land as they are not in possession of the land since
1985. The plaintiffs are in hostile possession and they have accrued the right over the suit land
by adverse possession.

Therefore, Plaintiff filed this suit against the defendants for declaration that he has absolute
right, title and interest over the suit land by virtue of adverse possession and for permanent
injunction.

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Draft of Plaint for Adverse Possession

[Plaint]

In the court of Civil Judge (Junior Division)

Suit No......of 2017

Ram Kumar, s/o Vijay Kumar, aged 43 years, r/o 36/5 MG Colony, Allahabad
........Plaintiff.

Versus

Kailash Kumar, s/o Suraj Kumar, aged 40 years, r/o 90/2 R. K Nagar, Allahabad ….....
Defendant.

The abovementioned plaintiff states as follows:-

1. That plaintiff was Thekedar of Railway in Jhusi, Allahabad and defendant was a Gram
Sevak in the Zilla Parishad.

2. That the plaintiff had is in possession of a plot of land Nos. 223 measuring 60 acres
situated in Jhusi village of Allahabad.

3. That the plot aforesaid formed part of a larger ancestral holding which has been
transferred in favour of the plaintiff in front of whole village and under the presence
and knowledge of original owner late Suraj Kumar.

4. That by virtue of an actual family partition and settlement and between the late
plaintiff’s father and defendant’s father of plot No 223 aforesaid fell in the lot of the
plaintiff exclusively.

5. That since the partition aforesaid, his father and thereafter the plaintiff himself had been
in actual sole proprietary possession of the plot aforesaid exclusively for more than 29
years and had been regularly using the plots in suit: paying, revenue and other taxes
exclusively.

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 6. That the defendant has no right, title or interest in the property in suit.

Sd/- Counsel for Plaintiff Sd/- Ram Kumar (Plaintiff)

VERIFICATION

I, Ram Kumar s/o Vijay Kumar, aged 43 years r/o 36/5 MG Colony, Allahabad do hereby
declare that the contents of paragraph 1 to 6 of this plaint are true to the best of my personal
knowledge. I have signed this plaint and verification clause on 16th February 2017, in the court
compound of Allahabad.

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 [Written Statement]

In the court of Civil Judge (Junior Division)

Suit No......of 2017

Ram Kumar, s/o Vijay Kumar, aged 43 years, r/o 36/5 MG Colony, Allahabad
........Plaintiff.

Versus

Kailash Kumar, s/o Suraj Kumar, aged 40 years, r/o 90/2 R. K. Nagar, Allahabad ....
Defendant.

Written statement on behalf of the defendant is as follows:-

1. That the defendant admit the content made in para 1 of the plaint.
2. That the defendant denies content made in para 2 of the plaint.
3. That the defendant denies content made in para 3 of the plaint.
4. That the defendant denies content made in para 4 of the plaint.
5. That the defendant denies content made in para 5 of the plaint.

6. That the defendant denies content made in para 6 of the plaint.

Additional Pleas

7. That the plots in suit were never in possession of the plaintiff.

8. That the defendant is and has always been in possession of plot in suit.
9. That the claim of the plaintiff is false and without any legal right, hence the suit is liable
to be dismissed with cost.

Sd/- Counsel for defendant Sd/- Kailash Kumar (defendant)

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 VERIFICATION

I, Kailash Kumar s/o Suraj Kumar, aged 40 years, r/o 90/2 R.K. Nagar, Allahabad do hereby
declare that the contents of paragraph 1 to 9 of this written statement are true to the best of my
personal knowledge. I have signed this plaint and verification clause on 27th February 2017, in
the court compound of Allahabad.

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 Bibliography
Statute:
The Limitation Act, 1963

Books/Papers:
• Murli Manohar's Art of Conveyancing and Pleading revised by Dr R. Prakash (Eastern
Book Company, 2nd ed., 2004)
• Textbook on Pleadings, Drafting & Conveyancing by Dr. A.B. Kafaltiya (Universal
Law Publishing 2014)
• Textbook on The Limitation Act by Gupta Shriniwas (Universal Law Publishing, 2nd
ed., 2012)
• Civil Procedure with Limitation Act, 1963 by C.K. Takwani (Thakker) (Eastern Book
Company, 7th ed., 2013)
• The Transfer of Property Law by Dr. Poonam Pradhan Saxena Lexis Nexis Publication
(LexisNexis Butterworths Wadhwa Nagpur, 2nd ed., 2011)
• Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property by
Law commission of India 2012
<http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf>

Web Source:
• www.manupatra.com
• www.scconline.com

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