Adverse Possession and its applicability in Lease and License
Property is perhaps the most important and the most complicated and extensive branch of modern law. Under this field of law, the rights, claims, duties and obligations of the parties involved with any kind of property become the subject of study. Possession is one of the most significant concepts whenever an immovable property is in question. Possession is such a right which is not subject to ‘ownership’. Even when the possessor is not the owner, he is still protected by the law, provided his claim is actionable or has a valid defense for his possession so as to show a ‘settled possession’.
The presumption of the law is that every possession starts legally .ie was permissive, unless proved to the contrary. Practically speaking, a peaceful possession for period is the prima facie evidence of the title sufficient for the maintenance of the claim of a party, unless the opposite party can show a better title. It is on this principle on which the Doctrine of Adverse Possession rests.
An Adverse possession is commenced in wrong and is aimed against right. A person is said to hold a property adversely to the real owner when that person, in denial of the owner’s right excluded him from the enjoyment of his property. As per the meaning provided by the ‘Webster’s Law Dictionary’, Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession.
Now license, as defined by Section 52 of the Easements Act, 1882 is as follows:
Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.
In the furtherance of the present study, adverse possession in matters of License shall be seen. Also, it shall be seen whether a licensee’s possession can ever be adverse or not? If at all it can, then under what circumstances?
Lastly, the concept of Lease shall be covered vis a vis the above mentioned content.
As defined by Section 105 of the Transfer of Property Act, 1882:
A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
The concept of adverse possession contemplates a hostile possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s right but denies them. The law establishes that a person who bases his title on adverse possession must clearly unequivocally through evidences that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
Anyone, including corporations, the federal government, states, and municipal corporations, can be an adverse possessor.
Distinction between ‘possession’ and ‘adverse possession’:
Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. On the other hand, a possession to be adverse, the possession not by the true owner, but by a person who objects or denies the right of the true owner and his title over the property. Again, only ‘possession’ cannot constitute the claim of adverse possession.Possession may or may not arise out of settled right, but a person claiming adverse possession has no right their upon. It is to be noted that mere user cannot assert such proprietary rights, as also laid down in Framji Cursetji v. Goculdas Madhoji.
The person who contends that he is in adverse possession should admit the ownership of the true owner. Thereafter, he should prove that he has become owner by virtue of adverse possession. Thus, the burden of proof lies on the one who asserts.
Elements establishing Adverse Possession
In order that adverse possession ripen into legal title, no permissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. The character, location, present state of the land, and the uses to which it is put are evaluated in each case. The adverse claimant has the burden of proving each element by a preponderance of the evidence.
Adverse possession consists of actual occupation of the land with the intent to keep it solely for oneself. Merely claiming the land or paying taxes on it, without actually possessing it, is insufficient. Entry on the land, whether legal or not, is essential. A trespass may commence adverse possession, but there must be more than temporary use of the property by a trespasser for adverse possession to be established. Physical acts must show that the possessor is exercising the dominion over the land that an average owner of similar property would exercise. Ordinary use of the property—for example, planting and harvesting crops or cutting and selling timber—indicates actual possession. In some states acts that constitute actual possession are found in statute.
Open and Notorious
An adverse possessor must possess land openly for the entire world to see, as a true owner would. Secretly occupying another's land does not give the occupant any legal rights. Clearing, fencing, cultivating, or improving the land demonstrates open and notorious possession, while actual residence on the land is the most open and notorious possession of all. The owner must have actual knowledge of the adverse use, or the claimant's possession must be so notorious that it is generally known by the public or the people in the neighborhood. The notoriety of the possession puts the owner on notice that the land will be lost unless he or she seeks to recover possession of it within a certain time.
Adverse possession will not ripen into title unless the claimant has had exclusive possession of the land. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own, in opposition to the claims of all others. Physical improvement of the land, as by the construction of fences or houses, is evidence of exclusive possession.
An adverse claimant cannot possess the property jointly with the owner. Two people may, however, claim title by adverse possession as joint tenants if they share occupancy of the land. When others or the general public have regularly used or occupied the land with the adverse claimant, the requirement of exclusive possession is not satisfied. Casual use of the property by others is not, however, inconsistent with exclusive possession. Generally, easements do not affect the
exclusive possession by an adverse possessor. In some jurisdictions easements exercised by the public or railroad rights of way will destroy exclusive possession.
Possession must be hostile, sometimes called adverse, if title is to mature from adverse possession. Hostile possession means that the claimant must occupy the land in opposition to the true owner's rights. There need not be a dispute or fighting over title as long as the claimant intends to claim the land and hold it against the interests of the owner and the entire world. Possession must be hostile from its commencement and must continue throughout the statutory period.
One type of hostile possession occurs when the claimant enters and remains on land under color of title. Color of title is the appearance of title as a result of a deed that seems by its language to give the claimant valid title but, in fact, does not because some aspect of it is defective. If a person, for example, was suffering from a legal disability at the time he or she executed a deed, the grantee-claimant does not receive actual title. But the grantee-claimant does have color of title because it would appear to anyone reading the deed that good title had been conveyed. If a claimant possesses the land in the manner required by law for the full statutory period, his or her color of title will become actual title as a result of adverse possession.
Under the Indian Limitation Act, Section 28 (new section 27) and Articles 142 and 144 (new Articles 64 and 65) and other provisions deal with the subject. In order to bring a case within the statute of Limitation, there must be both absence of possession by the person who has the right and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. To acquire title by adverse possession, as evident from Articles 64 and 65 of the Limitations Act, 1963, all that the law requires is that the possession must be open and without any attempt at concealment. On the relevant date, for acquisition of title by adverse possession 12 years adverse possession is required. Mere possession does not confer title of whatever duration it might be. For perfection of one’s title on the basis of adverse possession one has to specify the date of his occupation of the land in dispute and also name the person against whom he claimed adverse possession. . Sporadic possession being common excites no particular attention. Forcible possession for more than statutory period establishes adverse possession. A series of isolated acts of trespass with no continuity of possession would fall short of the requisite; and in fact, there has been interruption, possession during such interruption must be deemed to be with the person having the lawful right.
When an Adverse Possession cannot be claimed:
Time and again the Honorable Supreme Court and many High Courts have upheld that determination of an adverse title of possession is not purely a question of law but also a matter of fact. The claim has to be decided only on the material placed by both the parties. Mere assertions would not be adequate without substantiating the same. Hence, the material should also contain concrete proof of open, continuous and hostile possession. However, following couple of instances can pointed out wherein, a claim for Adverse possession of the property is not maintainable:
Permissive possession: A Permissive possession cannot be converted into an adverse possession, especially when the possession is permissive since the inception, unless some overt acts have been done by the tenant who would have the effect of their denying the title of the true owner. The permissive character of possession can be inferred from the attendant circumstances, even without direct evidence.The moment the plaintiff indicates the intention that the permissive possession should cease, the permissive possessor should desist from entering into the property and if he does not do so, his continuance would, thereafter, be wrongful and would render him, liable to surrender possession with mesne profits.
In absence of a rightful claim: In the case of Palaniyandi Malavarayan v. Dadamalali Vidayan, it was contended before Honorable Andra Pradesh High Court with regard to adverse possession by a trust that the right to trusteeship of a temple cannot be acquired by adverse possession so long as there is no lawful trustee who could claim to recover the office from the person who claims to hold it adversely to him.
Absence of sufficient animus or intention: It is the intention to claim exclusive title which makes possession adverse and this animus possidendi must be evidenced and effectuated by the manner of occupancy which again depends upon the nature of the property. It is well settled that the possession of the agent is the possession of the principle and in view of the fiduciary relationship the existing between the parties cannot be permitted to be as adverse.
Adverse Possession in context of Lease:
A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. In short, what the lessor transfers is a right to enjoy whatever property the lessor has in the immovable property. With the expiration of the agreed period, the lease may be terminated by means of serving notice to the leasee. But section 116 of the Transfer of Property Act, 1882 provides:
Effect of holding over: If a lessee or under lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.
Section 106: Duration of certain leases in absence of written contract or local usage
In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
2.8 Can a possession during lease become adverse?
The possession taken during the lease cannot be adverse as against the lessor until the termination of the lease, the lessor being unable to sue for possession while the lease is still current. No question of adverse possession or of limitation arises when the possession of a person and their predecessors in title has continued under he leases. The same is a long established principle.
But in an event where the leasor has asserted an adverse title against the leasor and repudiated the agreement to lease, he loses his right to apply for specific performance. If a defendant had a right to maintain a suit for specific performance of the agreement to lease when the suit is instituted, then, it must follow that up till that time he was not holding adversely to the plaintiff but on the contrary was holding the land under the agreement to lease and such would not give him any title under the limitation Act.
During the continuance of a lease, the possession of a trespasser does not become adverse against the lessor. The possession of a trespasser is limited to the lands which are actually in his physical possession. This rule was first enunciated in Davis v. Kazee Abdul Ham and reaffirmed in Unush v. Raj Narain.
But when the land in question is a disputed land, and the plaintiff being in possession of this very land under a lease for more than 12 years, he would acquire a permanent tenancy right by prescription as his possession will be adverse to the recorded tenants from the very inception of the lease. But it is to be noted that the lease agreement must be in contravention of the operative law.
Adverse Possession in context of License:
The occupation of land under a license is permissive and cannot be adverse. A licensee cannot claim title only from possession, however long, unless it is proved that the possession was adverse to that of the licensor, to his knowledge and with his acquiescence.
As defined in the Easements Act, 1882, Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.
But the provision does not entail any possession upon the licensee, unlike the case of lease. A licensee is permitted to use the licensed premises, without any legal right to possession thereof. Now, as already mentioned in the above discussion on adverse possession, there must be a legal claim or rightful claim over the property. Therefore, a licensee has no right to continue in the licensed premises, after expiry of license period. The licensor is not under any sort of obligation, either to issue a notice similar to one under a lease agreement or to take any other steps.
Secondly, where the possession of the defendant is permissive in character being under pure license, it is consistent with continuance of plaintiff’s title in spite of such possession, whatever may be its duration. While adverse possession implies that it is commenced in a wrong and maintained against a right. When the
commencement and continuance of possession is permitted and proper, referable to contract, it cannot be adverse.
In such a case unless the defendant succeeds in establishing that his possession has matured into title by reason of his adverse possession for over twelve years, he cannot prevent the plaintiff from obtaining possession, exclusive or joint, as the case may be, of the property by means of a suit.
But on the other hand, an adverse possession can be claimed where the licensee assumes or arrogates to himself the right of transferring the subject of the license, which in fact he cannot transfer, and this surely involves an assertion of an absolute title and consequently a denial of the title of the actual owner. In such a case the possession of the transferee must be unlawful from the date of its inception. Also, if the licensee successfully sets up a title hostile to that of the licensor after the termination of the license with continuity and required animus, claim for adverse possession can be, maintained.
In the above study, the concept of Adverse Possession, its elements and requirements for its valid claim were discussed followed by the discussion on applicability of this concept in terms of Lease and Licenses. Deciding whether a title can be adverse or not, is indeed a matter of both fact and law. At initial stage, one may say that in titles arising out of license cannot maintain adverse possession, but on analyzing different probable circumstances on case to case basis, instances may come out where the contrary can be shown. The same was highlighted in the chapter relating to Lease and Licenses. Therefore, exceptions can be discovered against any settled principle.
However, it can be said that in a defense under adverse possession, no matter whatever agreement or source of the claim over the property is, the various Courts have conclusively given more thoughtfulness and weightage to the animus possidendi of holding the possession and rendering of the title an adverse character against true ownership.
Books cited and referred:
Sarathi Vepa.P., Law of Transfer of Property,(Lucknow: Eastern Book Company) 2005
Mitra Upendra Nath, The law of limitation and prescription (in British India): including easements, with an appendix of acts, references to the latest cases and an index,( Oxford:Thacker, Spink) 1885
1. Ejas Ali v. Special Manager (1935) 68 M.L.J. 397 : AIR 1935 PC 53
2. Ram Charan v. Emperor AIR 1933 All 75
3. Balwant Singh v. Bujah 1992 Curr. C.C.126 at p.128 (P. & H)
4. I.L.R. 16 Bom. 338
5. Shivappa Shetty v. B.A. Srikanta Shetty AIR 200719 at p.22
6. Amba Gokal v. Parbat Bhuta 1992 (1) Guj. LR 339 at p. 104
7. Ram Saran v. Board of Revenue UP Alld 2003 (1) RJ 683at pp. 693
8. Alekha Subudhi v. Damodar Dalei (1991) 2 BLJR 1114 at p.1123
9. Abhoy shankar Mazumdar v. Satyendra Prasanna Bose Majumdar AIR 1925 Cal. 981
10. State bank of Travancore v. Arvindan Kunju Panicker AIR 1971 SC 996page 270
11. Ram Asre v. Muhammad Abdul Hasan Khan AIR 1915 Oudh 5
12. Kheyali Bhaiya v. Bisan Mahton 1957 BLJR 820
13. Darya Singh V. Kamla Nihala AIR 1961M.P. 179
# Ejas Ali v. Special Manager (1935) 68 M.L.J. 397 : AIR 1935 PC 53
# Ram Charan v. Emperor AIR 1933 All 75
# Balwant Singh v. Bujah 1992 Curr. C.C.126 at p.128 (P. & H)
# I.L.R. 16 Bom. 338
# Shivappa Shetty v. B.A. Srikanta Shetty AIR 200719 at p.22
# Available at www.expertlaw.com/.../adverse possession Visited on 12th October 2010
# Amba Gokal v. Parbat Bhuta 1992 (1) Guj. LR 339 at p. 104
# Extinguishments of right to property.
# Ram Saran v. Board of Revenue UP Alld 2003 (1) RJ 683at pp. 693
# Alekha Subudhi v. Damodar Dalei (1991) 2 BLJR 1114 at p.1123
# Abhoy shankar Mazumdar v. Satyendra Prasanna Bose Majumdar AIR 1925 Cal. 981
# State bank of Travancore v. Arvindan Kunju Panicker AIR 1971 SC 996page 270
# Chandrakantaben v. Vadilal B. Modi 1989 92) Guj. LR 1051
# Section 105, Transfer of Propety Acr, 1882
# Vepa P. Sarathi, Law of Transfer of Property,(Lucknow: Eastern Book Company) 2005 P 249
# Ram Asre v. Muhammad Abdul Hasan Khan AIR 1915 Oudh 5
# 8 W.R. 55
# 10 W.R. 15
# Kheyali Bhaiya v. Bisan Mahton 1957 BLJR 820
# Darya Singh V. Kamla Nihala AIR 1961M.P. 179
The author can be reached at: Radhika7@legalserviceindia.com