Suit for Adverse Possession

Final Project Pleading, Drafting and Conveyance

Submitted to:
Ms. Shakuntala Sangam
Assistant Professor (Law)
Department of Legal Studies
Dr. Ram Manohar Lohiya National Law University, Lucknow
Submitted b

Dr. Ram Manohar Lohiya National University, Lucknow

ACKNOWLEDGMENT
This work at hand is not the work of the researcher alone. A debt of gratitude goes to my
Pleading and drafting teacher Ms. Shakuntala Sangam for guiding me whenever help was
required. Also, sincere thanks go to my colleagues for keeping the spirit of competition alive in

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me. Lastly, I would also like to thank my seniors whose guidance helped me to complete this
research.

Table of Content

1. Introduction4
2. The Legal Position and Principles Governing Adverse Possession....................5
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3. Justification for Adverse Possession...7

Criticism of Adverse Possession.
4.
5. Factual Matrix..8
6. Draft of Plaint for Malicious Prosecution
Plaint9
Written Statement10
7. Bibliography11

Introduction

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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 effluxion of prescribed
time. 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 Bs, he is
in adverse possession of it unless there is something to show that his possession is consistent
with recognition of Bs title.
Adverse possession Indian Limitation Act, 1963, Article 65 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 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.

1 http://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf
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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 owners right excluded him from the enjoyment of his
property

The Legal Position and Principles Governing Adverse Possession.

As observed by the Supreme Court of India in the case of Karnataka Board of Wakf Vs.GOI 2 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 wont 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( emphasis supplied).
In the case of Amrendra Pratap Singh vs. Tej Bahadur Prajapati 3 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. 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 defendants
becomes adverse to the plaintiff. Article 65 is an independent Article applicable to all suits for

2 (2004) 10 SCC 779

3 (2004) 10 SCC 65
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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
lays 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 vs. 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 all
the 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. vs. K.C. Alexander5. The Bench consisting of three Judges observed thus:

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

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The Supreme Court of India, has in two recent decisions, namely, Hemaji Waghaji vs.
Bhikhabhai Khengarbhai6 and State of Haryana Vs. 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

Factual Matrix
The plaintiff owned and possessed a plot of land measuring 50 acres in a village of Allahabad.
Late Alok nath , father of the defendant gave it (land) to late Ajay Nath on

09-09-84 by

executing a Katcha Gift Deed in presence of village people. Late Alok Nath and Late Ajay Nath
were two brothers from the same parent and Late Alok Nath 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 Ajay Nth. Since 1985 Shri Ajay Nath was in
possession of the said land. The sons of Ajay Nath 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.

6 AIR 2009 SC 103

7 2011(10) SCC 404
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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.

Draft of Plaint for Adverse Possession

[Plaint]
In the court of Civil Judge (Junior Division)
Suit No......of 2014
Ram Nath, s/o Ajay Nath, a/a 43 years, Allahabad.

.........Plaintiff.

Versus
Kailash Alok, s/o Alok Nath, a/a 40 years, r/o Allahabad

........Defendant.

The plaintiff abovementioned states as follows:1. That plaintiff was Thekedar of Railway in Jhusi, Allahabd 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 50 acres
situated in Jhusi village of Allahabad.

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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 Alok Nath.
4. That by virtue of an actual family partition and settlement and between the late plaintiffs
father and defendants 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.
6. That the defendant has no right, title or interest in the property in suit.
Sd. Ram Nath.
I, Ram Nath do hereby declare that the contents of paragraph 1 to 6 of this plaint are true to my
personal knowledge. I have signed this plaint and verification clause on 28 March 2014, in the
court compound of Allahabad.
[Written Statement]
In the court of Civil Judge (Junior Division)
Suit No......of 2014
Ram Nath, s/o Ajay Nath, a/a 43 years, Allahabad.

.........Plaintiff.

Versus
Kailash Alok, s/o Alok Nath, a/a 40 years, r/o Allahabad

........Defendant.

Written statement on behalf of the defendant is as follows:1. That the defendants 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.
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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. M.N Ghosh

Bibliography:
The researcher is indebted to the following sources for information:
Primary Source:
R.D Srivastava, The Law of Pleading Drafting and Conveyancing, 2011
The Transfer of Property Law by Dr. Poonam Pradhan Saxena Lexis Nexis Publication
Civil Procedure (CPC) with Limitation Act, 1963 by Justice C.K.Takwani (Thakker)
Eastern Book Company
Secondary Source:
Consultation Paper-cum-Questionnaire on Adverse Possession of Land/Immovable Property by
Law commission of India 2012

Web Source:
Manupatra
Scconline

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