Adverse Possession: Why Tenants Cannot Claim Adverse Possession Against Landlord

In the heart of a legal saga spanning decades and echoing through the annals of property law, the case of “Brij Narayan Shukla v. Sudesh Kumar” emerges as a compelling narrative of ownership, possession, and the intricate dance between Adverse Possession and landlord-tenant relationships.

In the present case, the Hon’ble Supreme Court of India (“Apex Court”) handed down a landmark judgment in 2024 where they observed that tenants cannot claim adverse possession from their landlords as their possession is only permissive in nature. The Judgment was passed while hearing an appeal filed by the Plaintiff that challenged the judgment of the Hon’ble Allahabad High Court, Lucknow Bench (“Allahabad HC”) which had dismissed the suit for possession as it was time-barred.

In the legal dispute, Mr. Brij Narayan Shukla, the Plaintiff, asserted ownership of an open plot in Village Hardoi, Uttar Pradesh, based on a registered sale deed from the previous landowner in 1966. However, in May 1975, when the Plaintiff attempted to commence construction on the land, the Defendants, represented by Sudesh Kumar, objected to this, and prevented further progress claiming that they had Adverse Possession of the land. Consequently, the Plaintiff initiated a lawsuit in 1975 seeking an injunction to halt interference with his plans, along with potential possession of the land as an alternative relief. The Defendants contested the Plaintiff’s claims by referencing prior legal proceedings involving the previous landowner and tenants dating back to 1944. They argued that a lawsuit for overdue rent concerning the disputed land was initiated under Section 145 of the Criminal Procedure Code, 1973 (“CrPC”) in May 1966. During these proceedings, it was determined that the Defendants owned the land in question.

The Trial Court adjudged the Plaintiff as the lawful proprietors of the contested land, affirming their possession, and granted the injunction sought in the suit. Dissatisfied, the Defendants pursued an appeal before the District Judge, who upheld the Plaintiff's ownership and possession, determining that the statutory period of 12 years for establishing rights via Adverse Possession commenced in 1966, thus rendering the suit filed in 1975 timely. Subsequently, the Defendants lodged a second appeal with the Allahabad HC, invoking Section 100 of the Code of Civil Procedure, 1908 (“CPC”), wherein the lower courts' decisions were overturned, leading to the dismissal of the Plaintiff’s suit on grounds of limitation. The Allahabad HC concluded that the Defendants had indeed perfected their rights through Adverse Possession since 1944, coinciding with the initiation of the initial suit for rent arrears. Upon further appeal to the Apex Court, the Court refuted Allahabad HC’s rationale, asserting that even if the Defendants had been in possession prior to 1966, such possession could not have been adverse as they were tenants. Furthermore, the Apex Court pronounced that the Plaintiff’s suit which had been filed in 1975 fell well within the 12-year limitation period, thereby escaping the time bar.

"The defendant respondents were tenants and therefore their possession was permissive as against the then landlords. There was no question of them claiming any adverse possession from 1944."

The Doctrine of Adverse Possession is predicated upon the maxim “vigilantibus non-dormientibus subvenit lex,” signifying that the law aids those who are vigilant and not those who are negligent or dormant. This legal doctrine confers ownership of a particular immovable property upon an individual who has continuously resided there for a specified duration (typically 12 years if private property and 30 years if Government property), notwithstanding the legal ownership by another party. The genesis of this doctrine can be traced to the landmark case of “Amarendra Pratap Singh v. Tej Bahadur Prajapati,” where the Apex Court expressed that if a trespasser occupies a property for an uninterrupted period of 12 years, with the owner being aware of such occupation but not taking any steps to eject the trespasser, then by the owner's inaction, the trespasser attains legal ownership of the property.

A tenant ordinarily cannot assert Adverse Possession rights over a property due to the existence of a lease agreement with the landlord. However, upon lease expiration, if the tenant continues occupancy without rent payment for 12 years, uncontested by the legal owner, Adverse Possession may be claimed. The Burden of Proof rests on the occupant under the Limitation Act of 1963 (“Limitation Act”), requiring evidence that possession was continuous, uninterrupted, peaceful, and without coercion. Additionally, the occupant must demonstrate the legal owner's awareness of Adverse Possession without objection. In the case of “Balkrishna s/o. Bhagwanji Lohi and another v Prakash s/o Sheshrao Lohi and other” the Occupant was not able to give enough evidence and proof to show the specific date from which Adverse Possession began with the knowledge of the Plaintiffs. Hence the defendants cannot prove their title of plea of Adverse Possession. Adverse Possession cannot be claimed if possession is permissive, lacks continuity, or involves a fiduciary relationship. Moreover, in cases where land is unclaimed, Adverse Possession need not be established.

The Apex Court back in 2018 in Ram Nagina Rai vs. Deo Kumar Rai had said that there must be clear evidence to show when the Defendants' possession became averse to the interest of the Plaintiff. The limitation starts once the Defendants prove the “factum of adverse possession affirmatively from a particular time.” The Apex Court further said that the “defendants will not acquire adverse possession by simply remaining in permissive possession for howsoever long it may be.” The Apex Court ruled in favour of the Plaintiff since they had the title and the necessary evidence to show that the property was theirs and the Defendants could not prove Adverse Possession.

Returning to the case of “Brij Narayan Shukla v. Sudesh Kumar”, the Apex Court overturned the judgment of the Allahabad HC and said that the defendants were the tenants of the then landlord and hence Adverse Possession was not established as the possession was Permissive.

Anhad Law’s Perspective: The 2024 Judgment of the Apex Court reiterated the point that the Doctrine of Adverse Possession is a law that prevents the misuse and non-use of land, and it is not a law that de-stabilizes and removes a legal owner from their property.

The idea behind the Doctrine of Adverse Possession was to ensure that vacant land does not go wasted and is put to effective use. That it should benefit society by making use of idle land. The concept originated in response to circumstances where tenants, over time, assume responsibility for the care and maintenance of the properties they inhabit, while absentee landlords neglect their duties akin to erstwhile Zamindars back in 1793, British India. This principle rectifies inequities arising from tenants' diligent stewardship of properties without commensurate ownership rights. The Absentee Landlords' lack of oversight and maintenance obligations necessitated this concept to ensure fairness for tenants who contribute to the upkeep and preservation of properties without enjoying corresponding ownership privileges. Adverse Possession thus addresses the discrepancy between the responsibilities assumed by tenants and the absence of legal entitlement to property ownership, thereby rectifying historical injustices perpetuated by absentee landlordism. Article 65 of Schedule 1 of the Limitation Act allows 12 years within which a suit must be filed for the possession of immovable property or interest based on the title after which the Plaintiff cannot file a Suit for Possession.

The prudent consideration of Adverse Possession is imperative, given its susceptibility to exploitation for the accumulation of property.

·      Proprietors must diligently address the expiration of tenancy agreements, promptly initiate renewal procedures, and evict occupants who are unlawfully in possession.

·      Regular inspections by the legal owners are essential to verify the integrity of the tenanted premises, ensuring proper upkeep and maintenance standards.

·      In instances where a property is provided for gratuitous occupation or stewardship, it is imperative that the lawful owner routinely exercises oversight over the premises, thereby preventing prolonged periods of abandonment, which may precipitate Adverse Possession proceedings. In addition, it is important to establish a written documentation wherein the occupants explicitly acknowledge the conveyance of the property for a specific purpose.

·      The legal proprietor of the property must conspicuously display boards with signs indicating "No Trespassing, Prosecution May Ensue" to apprise potential squatters and ensure heightened vigilance.

Dhruv Gandhi (Partner) assisted by Ms. Ahona Chatterjee (Intern)