‘Lex vigilantibus, non dormientibus, subvenit’, a Latin maxim, which means that the law aids the vigilant and not the sleepy, governs the concept of adverse possession. Over the years, the Hon’ble Courts of India, have time and again, analysed the concept of adverse possession. Lately, the Hon’ble Supreme Court of India on August 09, 2023, in the matter of Government of Kerala and Anr. vs. Joseph and Others (“Captioned Matter”), while expanding further on the law on adverse possession and ownership of immovable property, held that, for granting a claim of adverse possession over a disputed property, “a clear, continuous and hostile possession would have to be established by way of cogent evidence and animus possidendi must be demonstrated.”
Just to get to some basic facts of the case. In the Captioned Matter, the property situated at Kudayathoor Village, Kerala, forming the subject matter of the dispute (“Subject Property”), is a government Puramboke land, and the said fact is undisputed. The Tahsildar, District Thodupuzha, on February 20, 1982, issued a notice to Joseph, being the original occupier of the Subject Property, for unauthorised occupation of the Subject Property. An appeal was filed against the said notice, which was later dismissed by the Assistant Collector, Idukki, vide its order dated March 11, 1983. Pursuant to the death of Joseph, the legal representatives of Joseph, filed a suit for injunction on April 14, 1983, which was allowed by the District Court on July 31, 1987. Upon an appeal filed by the State, the said Court further confirmed its original decree with a judgment and order dated July 21, 1990 (“Captioned Order”).
Thereafter, the District Judge, Thodupuzha, upon the first appeal filed by the State vide its order dated April 3, 1995 (“First Appeal Order”) passed in the appeal suit no. 3 of 1991, set aside the Captioned Order and reversed the finding of the District Court on the basis that the requirements of adverse possession, i.e. the possession being open, assertive, hostile and continuous, were not met. Contrastingly, in the Second Appeal no. 740 of 1995 filed before the High Court of Kerala (“High Court”), vide order dated August 5, 2009 (“High Court Order”), the Captioned Order passed by the District Court was upheld, granting the claimants adverse possession over the Subject Property and thereby, overturning the judgment rendered by the Court of First Appeal, i.e. the First Appeal Order. Accordingly, the State has filed an appeal before the Hon’ble Supreme Court of India against the High Court Order, i.e. the Captioned Matter. In the said appeal, Justice Sanjay Karol examined whether the claimants have perfected their title over the Subject Property by way of adverse possession.
The essential element laid out by the Apex Court in the Captioned Matter was that a person claiming adverse possession must show clear and cogent evidence to substantiate claims of adverse possession. The Apex Court, while deciding the said matter, elaborated on the meaning of the term, “adverse possession” and held that for possession to be adverse, “Possession must be open, clear, continuous and hostile to the claim or possession of the other party; all three classic requirements must coexist – nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial to title and knowledge“. The Hon’ble Court further stated that mere possession over a property for a long period of time does not grant the right of adverse possession on its own. The Hon’ble Court also stated that the clear and continuous possession must be accompanied by animus possidendi, i.e. the intention to possess or dispossess the rightful owner.
The Court further detailed that though the burden lied on the landowner to prove their title, the burden of proof rests on the person claiming adverse possession, and accordingly in the Captioned Matter, it was on the claimant to prove their possession to be openly hostile to the rights of the Government. However, barring testimonies of villagers, no decisive statements were made. Instead, reliance was placed on the basis of the estimated age of trees on the land. It was held that an estimation of the age of trees cannot be termed as sufficient proof required to disturb the title to the Subject Property, that undisputedly rests with the Government. Moreover, the factum of the claimant having ever claimed the possession hostile was not established. Lastly, there was no proof of residence, except that the property was being enjoyed with the assumption that the property belonged to the claimants.
The Apex Court while reversing the High Court Order, held the findings arrived at by the High Court to be erroneous, and accordingly restored the First Appeal Order. In light of the above, the following are the key takeaways on adverse possession:
- the burden of proof lies on the person claiming adverse possession;
- a mere long period of possession does not translate into the right of adverse possession;
- where possession can be referred to a lawful title, it will not be considered to be adverse;
- a plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse;
- clear, continuous, and hostile possession must be established by way of cogent evidence accompanied by animus possidendi; and
- concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession.
Relying on several judicial pronouncements, this judgment provides extensive clarity on the fundamentals of adverse possession. It certainly will aid in reducing frivolous ownership claims vis-à-vis adverse possession.
Watch this space for more on adverse possession, as we shall continue to track any significant developments in this area.