Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Nazeer, AS Bopanna* and V. Ramasubramanian, JJ has explained the scope of Section 11A of the Land Acquisition Act, 1894 and has held that the same shall be applicable to cases in which the acquiring authority has not complied with the requirement of sub­section (3A) to Section 17 of Act, 1894 by tendering and paying 80% of the estimated compensation before taking possession since possession in such cases cannot be considered to be taken in accordance with law and the vesting is not absolute.

Further, if the requirement is complied with and possession is taken after tendering and paying 80%, though there is need to pass an award and pay the balance compensation within a reasonable time, the rigour of Section 11A of Act, 1894 will not apply so as to render the entire proceedings for acquisition to lapse in the context of absolute vesting. The right of land loser in such case is to enforce passing of the award and recover the compensation.

Noticing that both Section 11A and sub-section (3A) to Section 17 of Act, 1894 were inserted in Act,1894 to enable the land losers to exercise their right conferred on them, the Court made clear that the benefit of said provision is available only to be invoked by the land loser and cannot be invoked by the acquiring  authority to claim lapse by pointing to noncompliance since the ‘vice’ of non-compliance cannot be permitted to be converted into a ‘virtue’.

The Court, however, clarified that if such question arises for consideration in any other case under   Act, 1894 or any other enactment relating to land acquisition containing pari materia provisions, this decision is to be applied only prospectively and cases which have attained finality shall not be reopened.

The Court explained the scheme of Section 11A and Section 17 in detail and observed that under Section 17 of Act, 1894, possession is permitted to be taken even before the award is passed. Though such power was absolute earlier, sub-section (3A) was inserted in 1984 imposing a precondition of 80% of the estimated compensation to be tendered and paid to the persons interested in the land.

The word employed in sub-section (3A) of 13 Section 17 of the Act, 1894 is “shall” and it is to be tendered and paid “before   taking   possession”. Hence, there is no discretion available to the acquiring authority. In fact, the last sentence of sub-section (1) of Section 17 uses the word “thereupon” with respect to vesting. This word “thereupon” is correlated to taking possession and payment in terms of sub-section (3A) is a sine qua non for taking possession. Therefore (1) payment of 80% (2) taking over possession thereafter and (3) vesting of land in the government take place in a sequence. Absent anyone of these in the sequence, the emergency provision fails.

“It is a prerequisite condition to acquire and take possession of the land since such acquisition is permitted by exempting the requirement of the procedure under Section 5A and possession is permitted to be taken prior to an award being passed under Section 11 of Act, 1894.”

It was further explained that the requirement to tender and pay 80% of the estimated compensation before taking possession assumes significance so as to carve out an exception for non-applicability   of ‘lapsing’ as contemplated under Section 11A of Act, 1894. This is so, since the terms “vesting absolutely” and “lapsing” cannot co-exist and cannot go hand in hand. Therefore, 80% of the estimated compensation, the payment of which only if tendered and paid, the vesting would become absolute and in such event the consequence of lapsing in respect of absolutely vested land cannot occur and as such, in that circumstance alone Section 11A though applicable will not take effect.

“The right of the land loser would be to enforce passing of award which will include the balance 20% of compensation even if it is beyond two years and get adequately compensated in terms of Section 23 and 34 of Act, 1894 for the delay if any.”

However, when Section 17(1) is invoked but the requirement thereunder which is a pre-requisite condition is not complied, even if possession is taken, such possession cannot be considered as legal so as to vest the land absolutely if the pre-requisite condition for payment of 80% before taking possession is not complied. In such circumstance, by legal fiction it looses its character as an acquisition under Section 17 and since the absolute vesting does not take place, it will lapse if the further process is not complied and the award is not passed within two years from the date of declaration.

But, even when the pre-condition is not complied, if the land loser does not challenge the   acquisition and/or taking of possession as illegal, but concedes to the position, the possession taken does not become per-se illegal and the vesting will be absolute and in such event it cannot be considered to have lapsed until the land loser exercises the right.

The Court, hence, concluded that Section 11A though applicable to the cases of acquisition initiated under Section 17(1) of Act, 1894 the consequence of it will not affect the case where the land has absolutely vested on compliance of sub-section (3A) to Section 17 of Act, 1894 and 80% of estimated compensation is tendered and paid.

[Delhi Airtech Services Pvt. Ltd v. State of UP, 2022 SCC OnLine SC 1408, decided on 14.10.2022]

*Judgment by: Justice AS Bopanna

For Appellant: Senior Advocate Sudhir Chandra

For Respondent 1: Senior Advocate Ravindra Kumar

For Respondent 2: Senior Advocate Ravindra Raizada

Op EdsOP. ED.


On intention to claim adverse possession, Powell v. Macfarlane1 is quite illustrative and categorical, holding in the following terms: If the law is to attribute possession of land to a person, who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).

The three-Judge Bench of the Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur2 has finally removed an anomalous position on adverse possession that “at the end of 12 years the adverse possessor has perfect right to possession of the property to the exclusion of owner but has no title to the property while the owner lost his right to possession but continues to have the title to the property”.

The Bench of Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ. pointed out that historical development of adverse possession requires that adverse possessor had to establish “the essential requirements of adverse possession, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge shall co-exist at the same time.3 Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it”.4

Another principle was that “Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required.”

The author wishes to begin this essay with the three-Judge Bench decision in Sarangadevar Periya Matam v. Ramaswami Gounder.5

In Sarangadeva Periya Matam6 on death of the plaintiff-respondent, his legal representative pursued the appeal “claiming title to the lands by prescriptive right on adverse possession on reason that the plaintiff, since 1915, and his predecessors-in-interest were in adverse possession of the lands”, and “on the expiry of 12 years in 1927 he acquired prescriptive title to the lands under Section 28 7 read with Article 1448 of the Limitation Act, 1908”.

Accepting his arguments on the above first contention,9 the Bench of Bachawat, R.S. Subba Rao, K. and Mudholkar, J.R., JJ. after an exhaustive review of earlier decisions, held that:

10. … by the operation of Article 144 read with Section 28 of the Limitation Act, 1908 the title of the math to the suit lands became extinguished in 1927, and the plaintiff acquired title to the lands by prescription. He continued in possession of the land until January 1950. It has been found that in January 1950 he voluntarily delivered possession of the lands to the math, but such delivery of possession did not transfer any title to the math.10

On the next issue, the Supreme Court held that “the suit was instituted in 1954 and is well within time”11 when it was found by Their Lordships that:

7. … the present mathadhipathi was elected in 1939 when the title of the math to the suit lands was already extinguished by adverse possession. By his election in 1939 the present mathadhipathi could not acquire the right to possess and enjoy or to recover properties which no longer belonged to the math.12

The appeal was dismissed.

In Des Raj v. Bhagat Ram13, the plaintiff-respondents filed the suit “for declaration of title and for a permanent injunction based on adverse possession against defendants-appellants”. After observing that “the factual aspects of the matter which are neither denied nor disputed,” the Bench of S.B. Sinha and Markandey Katju. JJ. declared that ”the plaintiff-respondent had remained in possession for a long time i.e. since 1953 and that in his plaint, the plaintiff did not specifically plead ouster but mofussil pleadings, as is well known, must be construed liberally, and be construed as a whole”14 on quoting Devasahayam v. P. Savithramma,15 declared that:

19. Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent. There cannot be any doubt whatsoever that having regard to the changes brought about by Articles 64 and 65 of the Limitation Act, 196316 vis-à-vis Articles 14217 and 144 of the Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is also furthermore not in dispute that the possession of a co-sharer is presumed to be possession of the other co-sharers unless the contrary is proved.

20. A plea of adverse possession or a plea of ouster would indisputably be governed by Articles 64 and 65 of the Limitation Act, 1963.

The Bench of S.B. Sinha and Markandey Katju, JJ. also declared that:

22. The mere assertion of title by itself may not be sufficient unless the plaintiff proves animus possidendi. But the intention on the part of the plaintiff to possess the properties in the suit exclusively and not for and on behalf of other co-owners also is evident from the fact that the defendant-appellants themselves had earlier filed two suits. Such suits were filed for partition. In those suits the defendant-appellants claimed themselves to be co-owners of the plaintiff. The claim of hostile title by the plaintiff over the suit land, therefore, was, thus, known to the appellants since both suits were dismissed in the year 1977…. It may be true, as has been contended on behalf of the appellants before the courts below, that a co-owner can bring about successive suits for partition as the cause of action, therefore, would be a continuous one. But it is equally well settled that the pendency of a suit does not stop the running of “limitation”. The very fact that the defendants despite the purported entry made in the revenue settlement record-of-rights in the year 1953 allowed the plaintiff to possess the same exclusively and had not succeeded in their attempt to possess the properties in Village Samleu and/or otherwise enjoy the usufruct thereof, clearly goes to show that even prior to institution of the said suit the plaintiff-respondent had been in hostile possession thereof.18

The Court observed that:

“Article 65 of the Limitation Act, 1963, therefore, would in a case of this nature have its role to play, if not from 1953, but at least from 1968 when the plaintiff made his hostile declaration claiming title for the property at least in his written statement in the suit filed in the year 1968. Thus, at least from 1968 onwards, the plaintiff continued to exclusively possess the suit land with the knowledge of the defendants- appellants.”19

Dismissing the appeal, the Bench of S.B. Sinha and Markandey Katju, JJ. held that:

“…having regard to the peculiar facts obtaining in the case, we are of the opinion that the plaintiff-respondent had established that he acquired title by ousting the defendant-appellants by declaring hostile title in himself which was to the knowledge of his co-sharers.”20

In Ravinder Kaur21, the Bench of Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ. clearly held that:

62….a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner, as the case may be, against whom he has prescribed. In our opinion, the consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.

(emphasis supplied)

Then coming to another dimension on “claim of adverse possession over public lands”, the Court declared that:

63. When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences; hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.22

The “concomitant effect of adverse possession” was also explained when the Court observed:

“Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on reentry except as provided in Article 65 itself.”23

The Bench of Arun Mishra, S. Abdul Nazeer and M.R. Shah, JJ. declared that “plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff” overruling Gurdwara Sahib v. Gram Panchayat Village Sirthala,24 State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj25 and Dharampal v. Punjab Wakf Board26 as not correct.

Comments of the author

On careful reading of Ravindra Kaur Grewal27, the following principles can be noted:

  1. The cardinal principle of law of property was that possession, let us say, legally acquired by any person i.e. the owner or lessee, etc. cannot be forcibly taken away by others except under the authority of law as it is popularly known that “possession is nine points in law”.

    In the above circumstances, a suit for possession under Section 6 of the Specific Relief Act, 196328 can be brought against the trespasser29 or appropriate orders can be passed protecting possession of a person under Section 145 of the Code of Criminal Procedure, 197330 when there is any dispute over immovable properties.

  2. Even before the end of 12 years or more, the adverse possessor can protect his adverse possession against any other person except the owner of the property.

  3. After completion of 12 years or more, the erstwhile owner's right, title and interest in the property passes on to the adverse possessor, his right to possession shall not be disturbed even by owner. Therefore, adverse possession as “as sword” can be used his adverse possession on strength of Article 65 of the Limitation Act, 196331 to claim the decree for title to the property on completion of 12 years.32

  4. On extinguishment of the owner's title, the adverse possessor can even evict the owner on being dispossessed by him since he cannot be remediless. As corollary, adverse possession can be used “as shield” under Article 64 of the Limitation Act, 196333 to ward off any interference to possession even by the true owner.

  5. An adverse possessor completely silent on being ousted from possession by subsequent adverse possessor, the latter has identical rights as explained above, against everyone, including the owner at the end of 12 years.

  6. The subsequent adverse possessor in the above circumstances, cannot tack on the earlier period of adverse possession already completed by the former to his advantage, but shall hold adverse possession afresh for period of 12 years in view of observation of the Full Bench that “two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period.”

  7. Another principle given on tacking by the Full Bench, on the other hand, was that “tacking is based on the fulfilment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right,”34 the legal heirs of adverse possessor can tack the earlier period to their advantage to complete 12 years.

For instance, an adverse possessor claiming through his immediate predecessor, say one of the parents, can tack the earlier possession advantageously to claim the benefit of the Full Bench decision.

On strength of the observations in State of Haryana v. Mukesh Kumar35 and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan,36 the author firmly believes that “when adverse possession itself is simply trespassing into property of others, it is not justifiable to allow tacking in above circumstances thereby aggravating the difficulties of true owner”.

The Bench of Dalveer Bhandari and Deepak Verma, JJ. in Mukesh Kumar37 observed that “Adverse possession allows a trespasser — a person guilty of a tort, or even a crime, in the eye of the law — to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling” asking the Government of India to either abolish or bring suitable amendments to law of adverse possession.

Identical observations can be found in another Bench of Dalveer Bhandari and Harjit Singh Bedi, JJ. who also wrote to the Government of India to introduce suitable changes.38

Despite the above observations on principle of adverse possession, Ravinder Kaur39 found it as a necessary, inevitable principle when the owner did not care to protect his property.

* Professor of Law, Hyderabad. Author can be reached at <>.

1. (1977) 38 P & CR 452.

2. (2019) 8 SCC 729.

3. In S.M. Karim v. Bibi Sakina, AIR 1964 SC 1254, para 5, Hidayatullah, J. observed thus: “Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.”

4. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, para 60.

5. AIR 1966 SC 1603.

6. AIR 1966 SC 1603, para 2.

7. Limitation Act, 1908, S. 28.

8. Limitation Act, 1908, Art. 144.

9. Sarangadevar Periya Matam v. Ramaswami Gounder, AIR 1966 SC 1603, para 2. Their Lordships did not think it necessary to decide the next submissions viz. (2) by the resumption proceedings and the grant of the ryotwari patta a new tenure was created in his favour and he acquired full ownership in the lands; and (3) in any event, he was in adverse possession of the lands since 1928, and on the expiry of 12 years in 1940 he acquired prescriptive title to the lands under S. 28 read with Art. 134-B of the Limitation Act, 1908.

10. Sarangadevar Periya Matam v. Ramaswami Gounder, AIR 1966 SC 1603.

11. Did the limitation commence on the date of the death of the previous mathadhipathi, or did it commence on the data of election of the present mathadhipathi?

12. Sarangadevar Periya Matam v. Ramaswami Gounder, AIR 1966 SC 1603.

13. (2007) 9 SCC 641.

14. Des Raj v. Bhagat Ram, (2007) 9 SCC 641, paras 16 and 17.

15. (2005) 7 SCC 653, 661, para 20 held: “The pleadings as are well known must be construed reasonably. The contention of the parties in their pleadings must be culled out from reading the same as a whole. Different considerations on construction of pleadings may arise between pleadings in the mofussil court and pleadings in the Original Side of the High Court.”

16. Limitation Act, 1963, Arts. 64 and 65.

17. Limitation Act, 1908, Art. 142.

18. Des Raj v. Bhagat Ram, (2007) 9 SCC 641, 648.

19. Des Raj v. Bhagat Ram, (2007) 9 SCC 641, paras 24 and 26. The Bench referred in Govindammal v. R. Perumal Chettiar, (2006) 11 SCC 600, 607-608, para 8 wherein it was held that: “In order to oust by way of adverse possession, one has to lead definite evidence to show that to the hostile interest of the party that a person is holding possession and how that can be proved will depend on facts of each case.”

20. Des Raj v. Bhagat Ram, (2007) 9 SCC 641, 650, para 31.

21. (2019) 8 SCC 729, 777-778.

22. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, 778.

23. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, para 61.

24. (2014) 1 SCC 669.

25. (2017) 9 SCC 579.

26. (2018) 11 SCC 449.

27. (2019) 8 SCC 729.

28. Specific Relief Act, S. 6 — “Suit by person dispossessed of immovable properties”.

29. The suit can be brought within 6 months of dispossession, need not be on title.

30. Criminal Procedure Code, 1973, S. 145 —“Procedure where dispute concerning land or water likely to cause breach of peace.”

31. Limitation Act, 1963, Art. 65 — “For possession of any immovable property or an interest thereon based on title.”

32. Interestingly Art. 65 gives 12 years to retrieve his possession while adverse possessor shall wait for 12 years to assert his “possession as well title” to the property.

33. “For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.”

34. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, para 61.

35. (2011) 10 SCC 404, the attempts of State, through Police Department, to claim declaration of title to the respondents-defendant's land through adverse possession was not allowed. Mukesh Kumar to be taken as impliedly overruled by the Full Bench.

36. (2009) 16 SCC 517. There seems to be no necessity to think of overruling of this ruling, since the Supreme Court rejected the claim of adverse possession on reasons that “when pleading, issues framed in trial court were silent on adverse possession, both appellate courts also observed failure to prove and establish adverse possession”.

37. (2011) 10 SCC 404, para 44.

38. Of course, both were decisions of Division Benches.

39. (2019) 8 SCC 729.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: A Division Bench of Yasantha Kodagoda and Arjuna Obeyesekere, JJ., dismissed an appeal which was filed after being dissatisfied with the decision of the Board.

The Petitioner owned one half of land in extent of 2.25P situated in Mahabuthgamuwa and that he had been carrying on a business of manufacturing rubber bushes, beadings and packing under the name of ‘Sarath Rubber Industries’ at the said premises. The petitioner also stated that proceedings in terms of the Land Acquisition Act to acquire the said land for the purpose of road expansion and development work had commenced in 2012 and that the Minister had made an Order to take over immediate possession of the said land, the petitioner did not have any objection to the said acquisition even though he had to relocate his business premises. The Petitioner had accordingly submitted a claim for compensation. The Petitioner stated that the Acquiring Officer had published his award but failed to take into consideration his loss of earnings from his business and consequently had filed an appeal with the Board of Review which is pending and the instant appeal had been filed in terms of Section 28 as legislature has provided a person dissatisfied with the decision of the Board of Review with a further right of appeal on a question of law. 

The Counsel for the Respondents, Avanti Weerakoon, submitted that the land of the Petitioner with several other lands, was required for the Ambathale Road widening Project, which was funded by the Organisation of Petrol Exporting Countries (OPEC) and further submitted that other lands were acquired and only petitioner’s land remained for the takeover and the project was due to be completed by December end thus it was required urgently.

The Court while dismissing the appeal held that the Respondent was entitled to take possession of the Petitioner’s land; any time after an Order is made in terms of proviso (a) of Section 38 and directed the respondents to compensate the petitioner within a period of eight weeks. [Wanniarachchi Kankanamge Sarath v. Road Development Authority, CA (Writ) Application No: 401 of 2019, decided on 13-01-2020]

Case BriefsHigh Courts

Orissa High Court: The Bench of S. Panda and P. Patnaik, JJ., dismissed a petition filed by the petitioner for the cancellation of the lease executed in favour of the Notified Area Council by the IDCO and to restore possession of his acquired land in his favour.

The brief facts of the case were that the land of the petitioner was acquired by the State Government under the Land Acquisition Act, 1894 for the establishment of a paper mill industry. Compensation was awarded. However, the Paper Mill Company had not taken any step for the establishment of the paper mill. This was the contention of the petitioner. The opposite party contended that after acquisition due compensation was paid as per the provision of the Land Acquisition Act. It was further stated that the land was acquired for a public purpose.

The Court held that once the possession of the land is taken under the provisions of the Act, it vests in the State free from all encumbrances, whatsoever, it cannot be divested. The land so acquired cannot be restored to the tenure holder/person interested even if it is not used for the purpose it was acquired or for any other purpose. After the acquisition of land, it could be put to use for the purposes other than for what it was originally declared. The new owners have the ordinary rights of proprietors and may use the land as it thinks fit for any purpose. It is not the concern of the landowner as how his land is used and whether the land is being used for the purpose which it was acquired for. The writ petition was thus dismissed. [Kapila Majhi v. State, 2019 SCC OnLine Ori 181, Order dated 18-04-2019]