 Good evening, friends. As usual, Wednesday, Sunday, then you always try to find a speaker who can understand and make us understand the topic. Law on adverse positions, we all have known that has traversed a legal journey on various aspects. We had requested Mr. Amit Kumar Deshpande, a senior advocate from Karnataka to share his knowledge. He has already shared his knowledge on various aspects, which is readily available on the YouTube channel of Beyond Law CLC. Being a Sunday, we would not take much time and we request Mr. Amit to take over the session. Over to you. Welcome, everyone. Thanks, Vikasji. Very good evening to all and especially thanks to all the audience who is interested in legal knowledge sharing. I would start with seeking an apology if I am not accurate and complete. We are today going to discuss about a very typically difficult concept in law relating to the property that is the law on adverse possession. As we would proceed to understand the ingredients and the other necessary things about this concept, we will come to know how paradoxical it is and then advocates conundrum as to how exactly one can plead and establish this plea in his litigation. We all know that possession of a thing or possession of a property is very dear to humans. How so ever primitive it could be when there is a civil society existing, there are rules or law made concerning protecting the possession of a person over a thing. This is very beautifully explained by Salmond in his book on jurisprudence. I will read to the learned audience here, the excerpt of that part of the book also a little later. I personally feel that it will be an anomaly in law where a person is held entitled to have legal possession over the property while another person is held entitled to hold title to the property or ownership to the property. I always feel that jurisprudence over ages and over different parts of the globe have always ensured that the legal right to possess and the legal right of ownership rests in one person though the legal right to possess can be something different and distinct from the physical occupation or possession of the property. This is where we need to understand the concept of adverse possession which basically affects right over property but is found reference in the law of limitation. We all know that the basic notion of law that the law of limitation does not extinguish the right but bars the remedy. However, we all must remember like for any other law and rule there is an exception to this rule also and the exception is the law on adverse possession, the plea of adverse possession coupled with the plea of prescription. So my dear friends, we need to understand if we have to help a litigant in pleading his drafting the plaint or written statement or in ensuring that he establishes the said plea in the court of law. We all must have the knowledge and references to not only the law relating to property the transfer of property act but also the law relating to the limitation act. The concept of adverse possession is available not only in India but in various other countries. Few of the countries have mentioned that the statutory limitation, the statutory time for a person to acquire ownership by virtue of adverse possession is 30 years. In some other countries it is only five years. In some countries it is 12 years and this way there is some variance in the length of time. However, the concept of adverse possession is still continued to be retained in the laws of various jurisdictions of the world. I will also a little later apprise you all about the recommendations of the Honorable Supreme Court of India and the reports of the Law Commission of India on this aspect. Now to come to understand the concept or the genesis of this concept of adverse possession. Adverse possession is a concept that is not defined in any statute or enactment but is evolved by the judicial dicta. There are various pronouncements of various courts and the law has been evolved through these judgments, clarified, reiterated. As I said, few relationships are as vital to humans as that of possession and we may expect any system of law however primitive to provide rules for its protection. The concept or doctrine of adverse possession is evolved from the need to avoid disorder in society. I can understand the audience thinking deeply as to how this concept of adverse possession could be used to avoid disorder in society. I will explain it a little later also. It is assumed to be not conducive for the civil society to admit legal possession of a person without conferring upon the higher right of ownership. Otherwise, there will be uncertainty on the legal right over the property. Now this concept of adverse possession as I said is historically evolved across all jurisdictions of the world. The basis of which evolution is lost in the march of the complex requirements of its ingredients. Various scholars have accepted that if a person holds possession of a thing or a property and if he is not certain about the possession being protected then there will be chaos and disorderliness in the society and therefore it is accepted that possession should be protected. However, it is not all types of possessions that are protected by law and are enlarged into a right of ownership. The plea of adverse possession itself is an antithesis to the concept of legal ownership and therefore very strict norms and rules that are evolved that have been evolved are required to be established by a person to fulfill his plea of adverse possession. So far as the Indian context is concerned, articles 64, articles 65, articles 111 and article 112 of the Limitation Act 1963 refer to the time within which a suit for recovery of possession can be brought. It refers to the possession of the adversary becoming hostile to the right of the shooter. These four provisions coupled with section 27 of the Indian Limitation Act 1963 would clarify how a person holding hostile possession can prescribe and enlarge his possession into a right of ownership. Section 27 of the Limitation Act 1963 refers to the extinguishment of title by virtue of prescription by lapse of time and limitation. This is the exception which I was referring to when I said that the general norm or understanding underlying the limitation law is that the law of limitation only bars the remedy but does not extinguish the right. For example, in a suit for recovery of money, the plaintiff may not be able to sue for recovery of a time barred debt. However, the same person can take a plea of adjusting the said amount as a defendant in a suit filed by his opponent even though there may be a bar of limitation. That's the distinction which we need to understand. The articles 64-65 were also with a little difference with the little variation available in the earlier limitation act which was repealed by the limitation act 1963. The Indian Limitation Act 1908 articles 142-144 were the articles which prescribed the limitation for a plaintiff to file a suit for recovery of possession. There has been a stark difference between the requirements under the earlier enactment under article 142 and 144 and in the present enactment under articles 64 and 65. Before I could explain further, let us have a look at the relevant provisions. As I said section 27 of the limitation act 1963 reads extinguishment of right to property. It says, at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. So this gives a person to prescribe and seek establishment of his right. Article 64 and article 65, though deal with the limitation for suits filed for recovery of possession of the property, they differ slightly in this fashion. Article 64 speaks about the limitation for a suit for possession of immobile property based on previous possession and not on title. When the plaintiff while in possession of the property has been dispossessed and the limitation for that is 12 years and the 12 years have to be reckoned from the date of disposition. So let us understand what is article 64. If a person is in possession of a property and if he is dispossessed and if he wants to seek recovery of such possession of the property, then he needs to file the suit within 12 years from the date of dispossession. The words are very clear. This suit where article 64 would be applied is based upon the previous possession of the shooter and is not based upon the title of the person. When we read article 65 of the limitation act, it says for a suit for possession of immobile property or any interest therein based on title, that time limited is 12 years and this 12 years would commence when the possession of the defendant becomes adverse to the plaintiff. Kindly reread this. The 12 years would begin when the possession of the defendant becomes adverse to the plaintiff. So this is the only provision under the limitation act referring to which the concept of hostility or the plea of adverse possession can be understood. Now this should be necessarily a suit for recovery of possession of immobile property or an interest therein and such prayer should be based upon the title of the shooter over the immobile property. So here he is required to establish that he has the title to the property and having lost possession, he is entitled for recovery of the possession as he is the owner or having title to the property. Now this is a case where once the plaintiff sues based upon his title for recovery of possession of the immobile property, it is for the defendant to plead that the possession of the defendant has become adverse to the plaintiff. I may also tell you that if the defendant does not take up the plea that his possession is adverse to that of the plaintiff and if the plaintiff is having title to the property and he establishes the same, then the suit for recovery of possession based on title would never be barred by the law of limitation as the defendant does not plead that his possession has ever become adverse to the plaintiff. So therefore if a suit for recovery of possession based on title has to be barred by the law of limitations, it is essential that one verifies whether the defendant has actually taken up the plea of adverse possession or not. Articles 111 and 112 are also the ones which govern the recovery of possession but in a slightly different situation. This is in respect of a suit by or on behalf of any local authority for possession of any public street or road or any part thereof from which it has been dispossessed or which it has discontinued the possession and for such a suit the limitation is 30 years from the date of the dispossession or discontinuance. Article 112 refers to any suit except a suit before the Supreme Court in the exercise of its original jurisdiction any suit by or on behalf of the central government or any state government including the government of the state of Jammu and Kashmir and in that 30 years is the limitation when the period of limitation would begin to run under this act against a like suit by a private person. These are the relevant provisions of law which we need to understand however I am hoping that the audience is aware that these are not limited to this only references to other provisions other concepts are also required for one to understand thoroughly however this is the fundamentals of this concept of plea of adverse possession. What are the ingredients of the plea of adverse possession? Article 65 of the limitation act 1963 is under focus here where we have just now read that in a suit for recovery of possession of immobile property or interest therein based on title the suit is to be filed within 12 years from the date when the defendant's possession becomes adverse to that of the plaintiff. Now for the defendant or in this case whoever is raising the plea of adverse possession the person who wants to raise the plea of adverse possession has to understand that he needs to at least fulfill and satisfy few of the ingredients of this plea. The primary thing of course is the actual possession of the property. The corpus possession is what it is referred to as that is the actual possession. However mere actual possession is not sufficient the person raising the plea of adverse possession must show his actual possession over the property and should also establish sufficient animus postidenti. Animus is the intention of the person holding possession of the property to possess the said property in his own right and the other ingredients which are required to be fulfilled have also to be established. So there has to be actual possession and there has to be sufficient animus. Now the three essential requirements classical requirements we may call it so which have been often referred to in various decisions of the honorable high court the honorable supreme court and also earlier by the honorable privy council judgments these latin words namely neck v neck clamp neck precario neck v the word v is force so no force neck clamp is no secrecy here and neck precario not insufficient so the possession of the person over the property should be peaceful that is without force should be open that is should not be adequate should not be his secret and it should be adequate in time it should be continuous and such possession should be exclusive this these are the classical requirements and the absence of any of these requirements would negate the plea of adverse possession therefore any student and advocate who needs to who wants to raise the plea of adverse possession must know by his heart these few ingredients especially neck v neck clamp neck precario that is he has to establish he has to plead and then provides sufficient material to establish that his possession the possession of the person was peaceful open continuous and adequate in time and exclusive we have seen many a times that the owner of the property inherently has the right to possess the property but also has the right to I may say non use of the property so here we must understand that non use of the property by the owner even for a long time won't affect his title the position will be altered only when another person takes possession of the property and asserts a right over it and therefore adverse possession is a hostile position by clearly asserting hostile title in denial of the title of the true owner but there are certain other requirements also which would seem to be running contrary to few of the statements which I have just now made and that is why I started this session saying that the concept of adverse possession the ingredients there under are quite paradoxical and it is a conundrum for the it's a riddle for the advocate to settle his draft who can raise the plea of adverse possession is also an interesting debate in the courtroom for which was there for several years whether the plea of adverse possession can be raised only as a defense in the suit for recovery of possession or the said plea can be raised by the plaintiff in a suit to protect his possession there have been several such decisions of various high courts and also that of the honorable supreme court and finally now three judges bench of the honorable supreme court in the case of Ravinder Kaur Greval versus Manjit Kaur has held that the plea of adverse possession can be raised not only as a defense but also can be raised as a plea by the plaintiff to protect his possession or to seek declaration of his right over the property however one important thing that is required to be noticed is that in law it will not be accepted if a person is simultaneously raising the claim of ownership as also hand in hand the plea of adverse possession because inherently the plea of ownership and the plea of adverse possession are inconsistent and therefore it is only when one is renounced the other can be claimed this has been clarified and upheld as a statement of law declared by the honorable supreme court of India in the case of the Karnataka State Board of Works versus government of India and in few other earlier and later decisions I will read to this learned audience what the honorable supreme court has stated in the case of government of in the case of Karnataka State Board of Works versus the government of India just the relevant portion and I also cite the I will also give you the citation of the judgment little later which you all can note it out and read it in detail later to understand the concept wholly and thoroughly the honorable supreme court says like this adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of pro owner it is a well settled principle that a party claiming adverse possession must prove that his possession is neck V neck clam neck 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 this is very interesting now what I am going to read further is this the honorable supreme court further as stated does it must start with a wrongful disposition of the rightful owner and be actual visible exclusive hostile and continued over the statutory period this judgment is referring to sm kareem versus bb sakinal reported in a ir 1964 supreme court page 1254 then personally versus suki 1993 volume 4 scc page 375 and dn venkat raya pa versus the state of karnataka reported in 1997 volume 7 scc page 567 the honorable supreme court further holds like this physical fact of exclusive possession and the animus posidenti 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 on what date he came into possession what was the nature of his possession whether the fact of possession was known to the other party how long his possession has continued and his possession was open and undisturbed a person pleading adverse possession has no equities in his favor since he is trying to defeat the rights of true owner it is for him to clearly plead and establish all facts necessary to establish his adverse possession the judgment in the case of dr mahesh chand sharma versus raj kumari sharma reported in 1996 volume 8 scc page 128 is also referred to whenever the plea of adverse possession is projected inherent in the plea is that someone else was the owner of the property and this is the reason why dear friends i was saying that the please of title and adverse possession are mutually inconsistent and the plea of adverse possession cannot begin to operate until the former is renounced therefore we need to understand that before the plea of adverse possession is taken up inherently in such a plea is the admission of the title or ownership of the opponent and hence once the plea of adverse possession is raised one has to admit the ownership of the opponent and thereafter take the burden on himself to prove that he is in possession of the property with sufficient animus and to prove the other ingredients which i had just now discussed i have hardly come across cases where the plea of adverse possession is raised the title of the opponent is admitted and the one raising the plea of adverse possession is able to establish that he has the possession of the property in his own right and all these ingredients have been fully satisfactorily established by material place before the court and the court has accepted such plea very few are such cases where all this has been sufficiently and satisfactorily proved and accepted by the honorable courts therefore before we take up such plea in our pleadings let us be very very clear about the ingredients of the plea and the material that is required to be provided for the purpose of establishing such plea now we come across another few confusions in the concept till now we have understood what are the ingredients of the plea of adverse possession however there are few questions which even have run into my mind as to whether mere possession long possession of the property would be sufficient or not to establish adverse possession whether permissive possession or possession under an invalid document of title can be said to be adverse possession or not to answer in one sentence the honorable supreme court has very well settled the declaration of law that a person claiming to be in permissive possession of the owner can never claim to be in adverse possession a person like a trustee or an agent or a licensee while he is occupying the property in such character cannot have cannot say that his possession as agent or licensee is adverse he has to renounce such character and then he has to establish the other essential ingredients of adverse possession I would refer to few decisions of the supreme court which have very succinctly pointed out this position of law a little later we have come across in our experience cases where a person obtains possession under a document which though purports to transfer title but the document itself is invalid and hence would not operate in law to transfer title over the property the oldest of the decision answering this situation is in the case of N. Varadha Pillai versus Jeevarath Nammal reported in AIR 1919 Privy council page 44 where the Privy council taking note of few other earlier decisions held that the possession of the of the property by a person under an invalid gift deed is hostile to the title of the donor and such possession amounts to adverse position friends the reasoning given by the Privy council can be read and it can be easily understood that when the owner of the property is giving up his right over the property and the person the other person comes in possession of the property asserting his independent right to the property and even when the document in one case the document is invalid because of the want of registration so even in such a situation where the document is not registered the title doesn't get transferred in law however the person was the owner until that moment and from the moment the other person gets the possession of the property he asserts his independent right over the property and therefore one can understand that in such a situation the plea of adverse possession can be raised this is the reasoning of the judgment rendered by the Privy council the other questions that come to my mind which I believe you all would have also thought about is in a case of co-personers one among whom might be in actual possession of the property and the others may be away from the property in the case of co-owners who all are having equal right and interest over the property who all are owners of the property collectively but one among them is in possession and the other is not in possession of the property whether the person in possession can say that he is in adverse possession the person in possession of the property in such a case cannot per se raise a plea that he is in adverse possession unless apart from establishing after pleading the necessary ingredients of adverse possession he also proves that the other owners of the property were ousted from the property it is required to note that in a case where the ouster is proved and the person is established to be in adverse possession then the co-personer or the co-owner is not entitled to say that being a co-personer possession of one co-personer shall be deemed to be the possession of all other co-personers unless this other co-personer actually does some over attack to re-enter into the possession of the property therefore the first essential requirement for a co-owner or a co-personer to raise the plea of adverse possession is to show that he has done some over act apart from the mere exclusive possession of the property for the statutory period and he having once proved his over act and established adverse possession coupled with ouster of the other co-owners then for the other co-owner to also prove that he had a right to claim possession a right to say that he is in deemed possession would be only upon that other co-owner to have shown some over act of re-entry in the property otherwise the general rule that should apply is that the possession of one co-owner is deemed to be is deemed to be the possession of the other co-owners in the case of a Hindu co-personary the honorable supreme court in the case of MV Manikal Rao has also held that even if the if one co-owner co-personer sells the property in such a case also the purchaser of the property only gets a right to exclusive possession of the property upon partition of the property and therefore unless there is a suit filed for general partition by the purchaser he cannot say that he is in possession of the property much less adverse possession of the property dear friends there are innumerable decisions and other reiterations by various courts in the country referring to all of those would only take so much of time and therefore I would restrict myself with the fundamentals if I can call it for us to understand the concept of adverse possession at the end of this session I would also be showing few decisions which answer all this few years ago the honorable supreme court of India taking note of the situation where the owner of the property is taken away is compelled to lose his title over the property as against a person who has wrongfully entered into the property felt the need to recommend the parliament to revisit this law prints the law commission of India in its 280th report published in the month of May 2023 and the supplementary note and also a dissent has taken note of these decisions of the honorable supreme court of India and also has taken note of the existence of adverse possession concept of adverse possession in various jurisprudences across the globe and has taken note of especially one factor where the honorable supreme court of India had highlighted that in a case the government or its agency had claimed adverse possession against a private individual and the honorable supreme court had felt that the state which has to protect the citizen and its properties cannot claim that it can prescribe right over the property of an individual citizen by adverse possession taking note of all these cases and factors the law commission of India in its 280th report actually once mentioned that it may be appropriate time to strike off the provision of adverse possession from the law of limitation the supplementary note clarified that the law of adverse possession is for the benefit of the public at large and removing the law of adverse possession in respect of government lands would lead to a chaotic situation leading to a lot of instability as people will not be able to crystallize their rights. I had referred to few concepts and statements of law these are the decisions which you all can note it in the case of Ravinder Kaur Grewal versus Manjit Kaur reported in 2019 volume 8 SCC page 729 a three judges bench of the honorable supreme court of India took note of the divergent views earlier taken by the court and finally held that the plea of adverse possession can be raised both by the plaintiff as well as by the defendant Karnataka board of works versus the government of India a judgment of the honorable supreme court of India reported in 2004 volume 10 SCC page 779 highlights the ingredients the requirements and the other essentials of the plea of adverse possession and gives much clarity to the understanding of this concept the judgment in the case of N. Varada Pillai versus Jeeva Ratnamal reported in AIR 1919 privy council page 44 deals with the case of a person raising the plea of adverse possession having come into possession of a property under an invalid document of title the judgment in the case of P. Lakshmi Reddy versus L. Lakshmi Reddy reported in AIR 1957 Supreme Court 314 deals with a situation where whether the adverse possession can be claimed by copartners or a receiver in possession and in what circumstances it is permissible and it is not permissible the judgment in the case of Achal Reddy versus Ramakrishna Reddy reported in 1990 volume 4 SCC 706 is a case where the honorable supreme court has taken note of a plea raised by a person coming into possession of a property under an agreement to sell an agreement for sale and held that a person coming into possession under an agreement for sale cannot raise such a plea of adverse possession as his possession is always permissive and under the title of the first owner of the property the judgment in the case of Thakur Pishansing versus Arvind Kumar reported in 1994 volume 6 SCC page 591 also declares as to the fact that the plea of adverse possession cannot be raised by persons in permissive possession like licensees, agents etc. The latest of the decision of the honorable supreme court rendered in the year 2023 is in the case of state of Kerala versus Joseph where several earlier judgments of the honorable supreme court are referred to taken note of and the law is very succinctly reiterated again by the honorable supreme court reading through which judgment all of you who get more clarity on the concept dear friends I here now assume that I am able to disseminate a little bit of information and knowledge of this concept of the plea of adverse possession to all of you for any misstatements incomplete statements or errors in my talk I would seek pardon kindly apologize me as I am also equally a learner along with you all Mr. Vikas sir and I am asking Dr. Vikram to unmute himself but he hasn't unmuted so I can on behalf of Dr. Vikram and associates and beyond law CLC I will thank Mr. Amit Mahadesh Pandey for sharing his knowledge and I am quite sick percent that everybody would be cherishing the way you have explained all the things in a subtle manner thank you everyone stay safe stay blessed namaskar