Abhiram Goswami v. Shyama Charan Nandi, 1909 SCC OnLine PC 16 : (1908-09) 36 IA 148 : (1909) 6 All LJ 857 : (1909) 19 Mad LJ 530 : (1909-10) 14 CWN 1 – Besides, Anangamohini and her successors had paid rent under their lease up to 1902, and if the lease was void as ultra vires the grantor, they were at least tenants from year to year, and therefore no question of adverse possession could arise. A tenant could not while paying rent acquire an absolute proprietary tenure against his landlord.
Jagdeo Narain Singh v. Baldeo Singh, 1922 SCC OnLine PC 46 : ILR (1923) 2 Pat 38 : (1921-22) 49 IA 399: AIR 1922 PC 272 : (1923) 45 Mad LJ 460 : (1922-23) 27 CWN 925 – With regard to the claim by adverse possession, as already observed, the mahal had all along been heir in thika; the lessee collected the rents and paid a fixed sum to the proprietor. If the thikedar failed to collect the rent from any individual tenant it would not create adverse possession against the proprietor
Abdul Rahman v. Prasony Bai, (2003) 1 SCC 488 – 32. In this case, we are also satisfied that having regard to the fact that the appellant himself was the tenant of Mangal Singh, he could not have raised the plea of adverse possession. As a tenant he could not have questioned the title of Mangal Singh. The very fact that escheat proceedings were initiated at the instance of the State also points out that the State proceeded on the premise that Mangal Singh had the right title in relation to the land in question and as he died intestate without leaving behind him any legal heir/representative, the same vested in the State. The appellant, as noticed hereinbefore, was allotted the land in question admittedly on the aforementioned premise, namely, Mangal Singh at the time of his death had title to the land in question or the suit property, but he died intestate. He, therefore, cannot be permitted to prevaricate from his stand at this stage.
G. Sathyanarayana Raj v. State of Karnataka, 2012 SCC OnLine Kar 1446 : ILR 2012 KAR 1831 : (2012) 2 Kant LJ 498 : (2012) 2 AIR Kant R 581 : (2012) 1 KCCR 628 – Furthermore, adverse possession, by its very nature, must be open and hostile to the person against whom it is sought to be claimed. It is inherently illogical to accept a claim for adverse possession in circumstances where the claimant essentially bases his title on a conveyance from a person against whom adverse possession is claimed. For example, a tenant may remain in possession for decades without end, but his tenure would not metamorphosise or transform into ownership by adverse possession.
S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 KAR 4129 : (2012) 4 AIR Kant R 424 : (2013) 1 KCCR 672 – 73. From the aforesaid stand in the written statement it is clear that, the case of the first defendant is he is in possession of the land as a tenant from the year 1950. He has filed an application for grant of occupancy rights. Now the matter is in Supreme Court. When a person gets into the possession of the land as a tenant, his possession is lawful at the inception and if he is continuing as tenant, his possession is lawful and therefore, such a tenant who according to him got into land under a tenancy continuing in possession as a tenant is not entitled to the plea of adverse possession.
G.M. Venkatareddy v. Deputy Commissioner, Kolar District, 2012 SCC OnLine Kar 7533 : ILR 2012 KAR 3168 : (2012) 3 AIR Kant R 527 : (2012) 3 KCCR 1999. – A person in possession of property without the authorisation or permission of the title holder/owner of that property for the period prescribed by law, attains recognition and protection of his possession on equitable considerations comes to enjoy the rights of adverse possession. This possession must be (a) continuous, (b) exclusive and (c) open, in the sense of being obvious and not covert, and most importantly (d) hostile to the title owner. In Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591 their Lordships have clarified that “possession for howsoever length of time does not result in converting permissive possession into adverse possession”. A tenant or licencee cannot claim adverse possession; but if he sets up a claim rivalling and challenging the title of the lessor/licensor and deliberately stops payment of rent/fee, his initial legal possession transforms into the illegal occupation of a trespasser. If the period of prescription, twelve years for a citizen and thirty years for the Government, elapses without the title owner initiating legal action for regaining possession from the trespasser, the latter’s adverse possession is protected. This doctrine may appear to favour the transgressor, but it is arguable that in actuality it respects the human right to enjoyment of property possessed, j improved and developed by the transgressor, against an indolent and careless owner. A presumption can also be drawn that the title holder is not interested in the property any longer. It need not be equated with stealth, since the possession of the trespasser has to be open and hostile to the title owner. As has been explained in Taylor v. Twinberrow (1930) All ER 342 and Fair Weather v. St. Marlebone Property Co (1962) 2 All ER 288 adverse possession “is a negative and consequential right effected only because somebody else’s positive right to access the Court is barred by operation of law”. Such rights are protective in character and akin to the doctrine of ‘part performance’ can be employed only as a shield and not as a sword. Expectedly therefore, a suit for declaration of ownership cannot be predicated on a plea of adverse possession, as has been held in Prem Nath Wadhawan v. Inder Raj Wadhawan 1993 (3) PLR 70 (Delhi Section) State of Haryana v. Mukesh Kuma (2011) 10 SCC 404, contains a detailed debate on the equities which arise whenever adverse possession is pressed into service. The preponderance if opinion is that the operation of adverse possession protects a trespasser or transgressor of the law and therefore ought not to be made available. References to the modern jurisprudence in America, United Kingdom and European Commission of Human Rights prefers the abolition or non-application of this principle
Compiled by S. Basavaraj, Advocate, Daksha Legal
Daksha Legal 