Mere Raising Of Plea Of Adverse Possession Does Not Shift Burden Of Proof To True Owner: Bombay High Court
The Court held that permissive possession does not become adverse merely because the owner knows about the occupation and that limitation begins only when the possession becomes adverse to the owner.
Justice Sandeep V. Marne, Bombay High Court
The Bombay High Court has held that merely raising a defence of adverse possession does not shift the burden of proof to the true owner.
The High Court clarified that the person asserting adverse possession must establish that the possession was settled, adverse to the owner’s title and made known to the owner.
The Court was hearing a second appeal under Section 100 of the Code of Civil Procedure, 1908, challenging an appellate decree which had affirmed the Trial Court’s direction to the defendants to demolish the construction over the disputed property and deliver vacant possession to the plaintiffs.
A Bench of Justice Sandeep V. Marne observed: “… merely because the Defendant has raised a defence of adverse possession, there is no question of shifting the burden of proof onto the true owner. The burden would continue on the shoulders of possessor to prove that possession is settled, is adverse to the title of owner and that the same was made known to the owner.”
Advocate R.D. Soni appeared for the appellants. Advocates D.S. Mhaispurkar & Rajendra M. Haridas appeared for the respondents.
Background
The plaintiffs claimed ownership of land at Village Mohone in Kalyan. According to them, Maniben, the sister of their predecessor-in-title, was permitted to reside on the property and look after it while the plaintiffs lived in Mumbai. They alleged that she subsequently constructed structures over part of their land without their knowledge or consent.
The defendants resisted the suit by claiming that the construction had existed since 1962 and that they had acquired title over the occupied portion by adverse possession. They also contended that the suit was barred by limitation and that the disputed property had not been described with the precision required by Order VII Rule 3 CPC.
The Trial Court decreed the suit in December 2009, directing the defendants to demolish the construction and deliver vacant possession. It also restrained them from transferring the property or parting with possession and directed an inquiry into mesne profits. The First Appellate Court affirmed that decree in October 2013.
The High Court admitted the second appeal on questions concerning whether an adverse-possession defence shifted the burden to the true owner and whether the suit satisfied Order VII Rule 3 CPC. It subsequently framed an additional question concerning limitation.
Court’s Observations
Adverse-Possession Defence Admitted Ownership And Encroachment
The Court observed that the defendants’ plea of adverse possession admitted the plaintiffs’ ownership of the disputed property as well as the defendants’ occupation of a portion belonging to them. It held that this narrowed the factual inquiry and relieved the plaintiffs of the burden of separately establishing encroachment.
The Court observed: “By raising the defense of adverse possession, Defendant Nos.1 to 6 admitted two aspects. Firstly, they admitted that Plaintiffs are the owners of the suit property bearing Hissa No.3/3/C (Chalta Nos. 447A to 452A, 453, 539, 594 and 403A). Secondly and more importantly, Defendant Nos.1 to 6 admitted the position that they have encroached upon the suit property. Thus, raising of defence of adverse possession narrowed down the scope of inquiry about encroached land.”
The Court held that the burden nevertheless remained upon the defendants to prove every ingredient of adverse possession. Referring to Ravinder Kaur Grewal v. Manjit Kaur (2019), it stated that the claimant had to establish possession that was adequate in continuity and publicity and adverse to the competing owner’s title and knowledge. The Court added that long possession or possession as a trespasser was not synonymous with adverse possession.
Permissive Possession Cannot Become Adverse Without Hostile Assertion
The Court found that Maniben had entered the property with the permission of the plaintiffs’ predecessor-in-title. It held that a permissive user could not claim settled possession adverse to the owner merely because the occupation continued for a long period.
Referring to Maria Margadia Sequeria Fernandes v. Erasmo Jack De Sequeria (2012), the Court noted that a person permitted to occupy premises gratuitously does not acquire a right or interest in the property through prolonged possession.
The Court held: “Once permissive use is established, the plea of adverse possession fails. Since Maniben entered the suit property through the permission granted by Shambhuprasad, the plea of adverse possession could neither have been raised nor established in the facts and circumstances of the present case by Defendant Nos.1 to 6. Permissive use of the property is antithetical to a plea of adverse possession. This is because, to establish the plea of acquisition of title in the immovable property by prescription, it needs to be established that the claimant is in settled possession.”
The Court further held that the defendants had failed to establish that their possession became adverse or that any hostile claim had been made known to the owners.
Suit Was Not Barred By Limitation
The Court stated that Article 65 of the Limitation Act, 1963 prescribes 12 years for a title-based suit for recovery of immovable property, beginning from the point at which the defendant’s possession becomes adverse to the plaintiff.
The Court held that knowledge of permissive occupation did not start the limitation period because such possession was not adverse to the owner.
The Court explained: “A permissive possessor occupies the immovable property with the permission of the owner and, so long as such permissive possession continues, he/she cannot ordinarily set up a claim of adverse possession. As observed above, plea of adverse possession can never be raised by a permissive user. Therefore, even if owner acquires knowledge about possession of immovable property by the permissive user, the same does not become adverse to the owner and therefore the period of limitation does not begin to run. In my view, therefore the suit filed by the Plaintiffs was perfectly within limitation.”
Other Findings
The Court rejected the appellants’ objection that the property had not been adequately identified under Order VII Rule 3 CPC. It observed that the defendants understood the disputed portion, had admitted that their construction extended into the plaintiffs’ land and had not raised a specific objection to the property’s description before the lower courts.
Referring to Pratibha Singh v. Shanti Devi Prasad (2003), the Court also held that an inaccurate property description was a curable defect which could, where appropriate, be addressed during execution under Section 47 CPC.
Conclusion
The High Court held that the defendants had failed to establish adverse possession because their predecessor’s occupation was permissive. It also found that the suit was within limitation and could not be dismissed under Order VII Rule 3 CPC.
The Court dismissed the second appeal with costs and declined to interfere with the First Appellate Court’s decree affirming the Trial Court’s direction to demolish the construction and deliver vacant possession to the plaintiffs.
Cause Title: Chandrahas Jethalal Patel and Others v. Nirmalaben Shambhuprasad Patel and Others (Neutral Citation: 2026:BHC-AS:42879)
