Discuss with the help of decided cases: 'Adverse Possession' under the Transfer of Property Act, 1882.

Question: Discuss with the help of decided cases: 'Adverse Possession' under the Transfer of Property Act, 1882. [HPJS 2019]

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Answer

Adverse possession means a hostile assertion, that is, a possession which is expressly or impliedly in denial of the title of the true owner.

It is well settled that a person who bases his title on adverse possession must plead and prove by clear and unequivocal evidence, that is, possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts of the defendant constitute adverse possession, regard has to be had to the animus of such defendant which has to be ascertained from the facts and circumstances of each case.

It is equally well settled that mere possession for howsoever long a period is not enough to claim title in as much as the possession has to be adverse.

In Liaq Mohammad v. D. D. A. and Others, AIR 1994 NOC (Delhi) 35, it has been held that a suit for possession based on the title, where a plea of adverse possession has been raised, would not be barred by limitation on the ground that it has been filed after the expiry of twelve years from the date of dispossession.

Equally, it can be said that once the defendant has failed to establish his adverse possession for the statutory period, a suit for possession based on title cannot be dismissed as being time-barred on the ground that the same was filed after the expiry of twelve years from the date of dispossession.

In Shishi Ram v. Megh Chand, (2012) it was held:

“12. It is settled law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means hostile possession which is expressly or impliedly in denial of the title of the true owner, and in order to constitute adverse possession, the possession/ roved must be adequate in continuity, 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 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 possession actually informing the real owner of the former's hostile action.…………………..

14. The learned first Appellate Court thus rightly concluded that when the plaintiff had filed a suit for possession based upon the title and the defendant had taken a plea of adverse possession to defend his title, in that eventuality of the defendant, 's failure to prove his adverse possession, the suit filed by the plaintiff could not have been dismissed on the ground that the defendant failed to prove the possession within a period of 12 years prior to the filing of the suit as held by the Apex Court in Indira v. Arumugam AIR 1999 SC 1549.”

Section 51 of the Transfer of Property Act allows for compensation to be claimed by a person, who puts up construction bona fide believing the property belonged to him. The suit for recovery of possession that is decreed can apply Section 51 and secure to a defendant against whom possession is sought to compensate the defendant for the construction put up by him.

Section 51 of the transfer of property act applies in terms to a transferee who makes improvements in good faith on a property believing himself to be its absolute owner.

In order to attract the provision, following key are necessary ingredients to be complied with:-

a) the occupant of the land must have held possession under colour of title,

b) his possession must not have been by mere possession of another but adverse to the title of the true owner and

c) he must be under the bone fide belief that he has secured good title to the property in question and is the owner thereof.

Section 51 gives only statutory recognition to the above three things as held by the Hon’ble Supreme Court in the recent case of Baini Prasad (D) Through LRs. v. Durga Devi, Civil Appeal No.6182-6183 of 2009,  wherein the case after encroaching upon the land in question and ignoring the absence of any title that the defendant made structures thereon at his own risk. Once it is so found, the court held that the defendant cannot be treated as a ‘transferee’ within the meaning of the TP Act and for the purpose of Section 51, TP Act.