PLEA OF ADVERSE POSSESSION

PLEA OF ADVERSE POSSESSION

WHAT IS REQUIRED TO BE PROVED

Possession is a branch of law of property. Acquisitiveness and possessiveness are basic instincts of man which are founded on economic needs, amongst others. Possession has always been a means of acquiring title to property. It was the earliest means recognized by mankind of appropriation of anything tangible by one person for his own use to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirming and creating title.

“nec vi, nec clam, nec precario” is the basic principle which says that the possession must be a peaceful, open and continuous possession.

The Courts in India, have held that the intention to claim exclusive possession in hostility against the possession of true owner makes said possession adverse. Thus animus possidendi must be evidence by the manner of occupancy which again depends upon the nature of the property. The trespasser must be in actual physical possession of the property over a sufficiently long period; that possession must be to the knowledge, either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. It is such possession which becomes juridical possession, that is protected by law, even against the true owner. “Legal Possession”, “Juridical Possession”, “Possession in law”, means the same thing.

Trespasser in settled possession has the same protection of law, though his possession is wrongful in its origin. A tenant whose tenancy has been determined, though in the contemplation of law he is a trespasser, in as much as he is in possession without the owner's consent, has clear protection of law in retaining possession, till he is evicted in due course of law, through the machinery of the Courts. His possession is not like that of a squatter, but legal or juridical.

Possession is single and exclusive. It is indivisible. Two persons cannot, at the same time, have possession of a thing, except jointly or in common. In the case of joint owners there is unity of title and unity of possession. In the case tenants in common there is unity of possession but the titles are according to individual rights of each co-sharer.

Law of limitation and prescription are founded on the reasons of public policy. In nearly every system of law it is recognized that, if a person has been in possession of a thing, for a considerable time, defects in his title and manner of acquiring ownership are cured. The justification for this institution is to be found in inconvenience and hardship of disturbing a possession which has been long enjoyed.

Mere possession however long does not necessarily means that it is adverse to true owner and adverse possession means hostile possession which is expressly or impliedly in denial of title of true owner.

Hon'ble Supreme Court in T.Anjanappa & others -v- Somalingappa & another, reported in 2006(3) CCC 328, has held that,

“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 e adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a 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 constituted 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.

Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.

It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of 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. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the formers hostile action.

CONCLUSION :

Adverse possession implies that it commenced in wrong, and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to contract, it cannot be adverse. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Intention to dispossess on the part of the adverse possessor is essential to prove adverse possession.