DR.

RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY, LUCKNOW

PLEADING, DRAFTING AND CONVEYANCE

Projects

On

“Suit for Adverse Possession”

Submitted to: Submitted by:

Mrs. Shakuntala Sangam Shalini
Assistant Professor (Law) Roll No: 121

Sem: VIth

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ACKNOWLEDGEMENT

A major research project like this is never the work of anyone alone. Firstly, I would like to
thank my teacher for giving me such a golden opportunity to show my skills and capability
through this project.

This project is the result of the extensive ultra-pure study, hard work and labour, put into to
make it worth reading. This project has been completed through the generous co-operation of
various persons, my teacher, and my seniors, who, in their different potentials helped me a lot
in giving the finishing touch to the project.

This project couldn’t be completed without the help of my university’s library Dr. Madhu
Limaye Library and its internet facility.

Thank you…..

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 Contents

Acknowledgement ..................................................................................................................... 1

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

The Legal Position and Principles Governing Adverse Possession........................................... 5

Justification for Adverse Possession.......................................................................................... 7

Criticism of Adverse Possession ................................................................................................ 7

Factual Matrix ............................................................................................................................ 8

Draft of Plaint for Adverse Possession ...................................................................................... 9

[Plaint] .................................................................................................................................... 9

[Written Statement] .............................................................................................................. 10

Bibliography ............................................................................................................................ 12

Statute:.................................................................................................................................. 12

Books/Papers: ....................................................................................................................... 12

Web Source: ......................................................................................................................... 12

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 Introduction
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
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

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

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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 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

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

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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
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.”

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

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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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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.

[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.

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 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)

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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