When does possession become adverse?
Ravikant Soni
(Querist) 01 November 2011
This query is : Resolved
In a lease when does the possession of lessee become adverse?
Article 66 and 67 of Limitation act provide limitation period in matters of a lease.
Lessee has not been paying rent to landlord for more than 12 years. Can he claim defense of adverse possesion?
Case law required!!!!1
No written contract as to terms of lease between the parties.
ajay sethi
(Expert) 01 November 2011
the lesee has been in posession of land for over 12 years . the intention of leseee to posess land in exclusion of others is clear .
the lessor has not taken any steps to take posession of land for over 12 years although lesee has not been paying any lease rent .
in my view he can claim defence of adverse posession
kuldeep kumar
(Expert) 01 November 2011
in my view possession is adverse.one thing make me think so lease deed whether oral or written should hv been reduced in wrting n regd.this is mandatory.
Raj Kumar Makkad
(Expert) 01 November 2011
The concept of adverse 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.
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.
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
kuldeep kumar
(Expert) 01 November 2011
gur ji lessee has got in his side prescriptive right i think.now ball is in lessee's court.
prabhakar singh
(Expert) 01 November 2011
VERY lucidly explained position of law by mr.
makkad and i entirely support it.
once a lessee admits his entry as a lessee,adverse possession is out of his court
to prove,the moment he pleads,he ensures his eviction.
There may be possibility where lessee tenancy was terminated by the lessor but there after eviction suit was not initiated,in that case lessee may plead his possession adverse to the lessor but he shall have to prove it hostile to the knowledge of lessor from a particular date from which his possession became hostile in the knowledge of lessor.
An other circumstance may be where decree of eviction was passed against lessee but the same was not executed with in time prescribed by law.
The fact that lessee has not been paying rent yet land lord has not taken any action for any period of time does not confer any
right to lessee to plead adverse possession as that simply bars the lessor his right of realization of rent but that causes the lessee defaulter and not adverse possessee.
Ravikant Soni
(Querist) 02 November 2011
Prabhakar sir I would like to draw your kind attention towards this rulling...
http://www.indiankanoon.org/doc/660374/
would it work here?
prabhakar singh
(Expert) 02 November 2011
The following is the operative portion of the judgement with which you must have already gone.To bank upon it you need not setup a right adverse to landlord rather you need to aver in your defence that suit of land lord is clearly barred by time,you are in Rajasthan,the judgement is from mumbai which has decanted from a judgement
of of gujrat,and of late supreme court has criticized the law of adverse possession in an appeal of hariyana state claiming adverse possession against an individual respondent from gurgaon who was not even called for hearing. Such positions forewarns us to take proper defence at least in tenant matters.Take care of protections available to you under state tenancy law.Do not deny relation ship in cases there is least doubt that on conclusion of evidence it may go established.So simply take a defence
that the "suit is barred by law of limitation"and try to build a case under this case law while cross examining the landlord.Take care that it was a case of subtenancy also and breach of tenancy was proved right from day 1 upon which the opinion of two high courts are different;Gujrat is of view is that its a continuing breach hence art.113apply but bombay is of view that art.66 would apply.
"After hearing both the learned Counsel, and after perusal of the Trial Court judgment and the lower Appellate Court judgment, it is clear that in the instant case, though the tenancy was created in favour of Respondent No. 1, the Respondent No. 1 never stayed in the suit premises, right from inception, i.e. 1st February, 1969. On the contrary, the Respondent No. 1 had illegally sub-let the same to Respondent Nos. 2 and 3 from 1st February, 1969. If that be so, the breach of tenancy conditions occurred on 1st February, 1969, and the suit ought to have been filed within 12 years, as per Article 66 of the Limitation Act. Ex-facie the suit is barred by law of limitation. I respectfully do not agree with the judgment of the Gujarat High Court, that in case of illegal subletting, there would be a continuing cause of action. The said view is contrary to the provisions of Article 66 of the Limitation Act. 13. Under the aforesaid facts and circumstances, I do not find any jurisdictional error or any perversity in the lower Appellate Court's judgment holding that the suit was barred by law of limitation, which is impugned in this Petition. There is also no illegality in the above judgment. Hence, there is no merit in the above Petition, hence Rule standsdischarged, however, with no order as to costs."
Ravikant Soni
(Querist) 02 November 2011
Prabhakar Sir,
There is a strange situation of tenancy law exist in Rajasthan.
Rajasthan premises control of rent and eviction act 1950 has been abolished. New act RAJASTHAN RENT CONTROL ACT 2001 came into force in district head quaters areas only. Small towns still waiting for enforcement of new rent act.
Therefore the eviction cases are filed under 106 TP act. Where there is no any better defense for tenants.
In suits under TP act onlythree things are to be proved i.e. landlordship, tenancy and determination of tenancy. And a decree of eviction may be passed.
So I was searching a light of hope to get rid of rigidity of statute such as 106 TP Act.
Moreover in my case a notice also had been given to my client 20 prior to filing of suit under section 106 TP act for deternination of Tenancy.
The cronological order of facts are...
1- Tenancy is more than 50 yrs old.
2- Notice for determination was given to my client in 1990
3- The landlord declined to receive rent.
4- landlord filed suit in 1992 for eviction on the ground of default in paying rent.
5- Suit was dismissed in 1998
5- Tenant was paying rent in the court till 1998 but same was not withdrawn by landlord till now.
6- A new notice for eviction and determination of tenancy given to my client in 2011.
7- Suit is filed under section 106 TP act.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 02 November 2011
Haryana case is landmark judgment for adverse possession where the SC without even issuing notice to other side heavily fined the Haraya Govt.
In the present case only relief can be got is on the basis of default in rent but for that also courts normally grant time and the burden to prove that rent is not recieved in landlord.
prabhakar singh
(Expert) 02 November 2011
Dear Mr. Soni!
"Suit was dismissed in 1998" on merit or in default of appearance of plaintiff in presence of defendant or in absence of both parties.Please clarify??
Ravikant Soni
(Querist) 02 November 2011
Prabhakar Sir,
Suit was dismissed due to non production and thereafter closure of evidence on the part of plaintiff.
M V Gupta
(Expert) 02 November 2011
Dear Mr. Soni,
The question of adverse possession in the case of a tenant continuing in possession of the leased property does not arise. Attention is invited to Section 116 of the TP Act and also the Rent control legislation giving protection to such tenants against eviction so long as they continue or willing to continue to pay the rents as per the expired lease agreement. Such tenants would in terms of Section 116 of the TP Act are regarded as tenants holding over or tenants by sufferance if there is no consent of the LL.In your case there has been an effort on the part of the LL to evict the tenant and his suit for evction was dismissed for technical reasons. Tenat also deposited rents in the court during the pendancy of the Suit. So, I am of the firm, opinion the tenant cannot claim adverse possession or title on that basis. Pl read commentory at pages 1265 and 1266 of TP Act by Mulla 9th edition. In Mumbai we have plethora of cases of this nature and the LLs are not in a position to get possession of the property even on ground of default in payment of rents as the tenants deposit rents during the pendency of the suit for eviction.
dev kapoor
(Expert) 02 November 2011
In AIR 1980 MP 183 (FB) following qns are decided as under:
1. The questions referred for the opinion of the Full Bench are as follows:--
(1) Whether the rights of a Bhumiswami can be extinguished by dispossession when he is out of possession for more than twelve years?
(2) Whether a person in possession in his own rights and adverse to the recorded Bhumiswami can claim the rights of a Bhumiswami acquired by adverse possession?
ANd
The final judgment is answered as under:
"Our answer to the questions referred to us is therefore as follows:--
(1) The rights of a Bhumiswami can be extinguished by dispossession when he in out of possession for more than 12 years.
(2) A person in possession in his own rights and adverse to the recorded Bhumiswami can claim the rights of a Bhumiswami acquired by adverse possession but when he puts forth such a claim before the State Government his right can be recognised only if it is found that such rights were lawfully acquired as indicated above."
This apart it is settled lazw that "Possession(adverse possession) is best title against the whole world but against the true owner":
All friends here have done commendable research work & exhibit their experience.
Well done Sirs,Keep it up.Thats in true spirit of the Forum.
prabhakar singh
(Expert) 02 November 2011
Dear SONI!
It is here i would like to differ with others
that be it one reason or the other the tenacy
was determined on the part of the landlord lord in the year 1990.Hence the cause of action to evict the tenant arose in year 1990
and a suit was also filed,which got dismissed for one reason or the other but the cause of action to sue and evict continued to run since 1990 and completed 12 years in [1990+12=2002]even if i proceed to carry it till 1998,being the dismissal of suit [1998+12=2010] though that can never be its logical end because cause of action survived only up to 2002 because once it starts to run it continues to run to complete its race fixed by time law.
No fresh tenancy between the land lord and tenant was created after the dismissal of the suit in year 1998,let there be any reason,the tenancy was determined in year 1990 it self.It is a very crucial aspect of your case.Then what was there left as relation between the two to be determined in the year2011.is there any pleading in the suit that a fresh tenancy was created after dismissal of suit in year 1998,i am sure,there might be none.But these are the matters of building the case in evidence by cross & chief,the defence should be only that the suit is clearly barred by time.Go cool in conducting this case.
When tenancy was already determined by notice in year 1990,and no fresh tenancy was created WHAT RELATION EXISTED THERE TO BE TERMINATED IN YEAR 2011, OBVIOUSLY NONE.
THE CAUSE OF ACTION TO SUE AND EVICT STARTED TO RUN IN YEAR 1990 AND CONTINUOUSLY RUN TO EXPIRE IN YEAR 2002.
THEN EVEN IF ANY SUIT WAS STILL OPEN TO BE FILED BY THE LAND LORD DESPITE DISMISSAL IN YEAR 1998,THE CAUSE OF ACTION CONTINUED TO RUN AND EXPIRED IN YEAR 2002,HENCE NO SUIT OF EVICTION COULD LIE AFTER 2002.
EVEN IF SOME ONE WANT TO GIVE SOME GRACE MARK,WHICH CERTAINLY IS NOT AVAILABLE IN MY OPINION,THEN 1998+12=2010 IS THE LAST BREATH OF PLAINTIFF SUITS.
BUT TO ME LIMITATION HAS EXPIRED IN YEAR 1990+12=2002 AND PLAINTIFF SUIT IS CLEARLY BARRED BY TIME AND NO RELIEF OF EVICTION CAN NOW BE GRANTED TO HIM BY COURT IS MY VIEW.
PLAINTIFF HAD NOTHING TO DETERMINE IN YEAR
2011,WHATEVER RELATION BETWEEN PARTIES WAS HAD ALREADY STOOD DETERMINED IN YEAR 1990 WHERE AFTER NO FRESH RELATION OF ANY KIND WAS CREATED.HENCE PLAINTIFF HERE HAS DIED OF HIS OWN INACTION ,ITS A KIND OF SUICIDE ON THE PART OF THE PLAINTIFF,HE IS DEAD .
YOUR CASE IS COVERED BY ARTICLE 66 OF LIMITATION ACT.
Ravikant Soni
(Querist) 02 November 2011
Thanks Prabhakar sir,
Really you have no match.
Very reasoned, mature and flawless reply.
Now I have no hesitation to take defense of limitation at preference.
Thanks again.
M V Gupta
(Expert) 02 November 2011
Prabhakarji, in your analysis the effect of Section 116 of TP Act is not considered. Even if the lease period expired in 1990, the possession of the property continued to be with the Tenant as Holding over tenant with an obligation to pay rents to the LL; if the tenant did not pay the rents or offer made by t he tenant to pay is not accepted by the LL, it does not mean that possession with the tenant becomes adverse possession. Adverse possession should be in denial of the title of the owner and should be exclusive. See Bhago vs Deepchand AIR 1964 Punj 187. In the case of a tenant who is prohibited from questioning the title of the Owner, the continued possession after expiry or termination of lease cannot be regarded as hostile to title of the Owner. The LL continues have a right to evict the tenant on grounds of default in payment of rents or personal requirement etc. There is continued cause of action to bring in a suit for eviction.
Ravikant Soni
(Querist) 03 November 2011
M V Gupta sir,
For the concept of 'tenant holding over', acceptance of rent or otherwise assent to continuing possession is must together with. I think so.
In given circumstances the LL himself determinated the lease by giving notice in 1990. His intention was not to continue the lease, His intention manifested from his conduct as he filed the suit against tenant.
prabhakar singh
(Expert) 03 November 2011
If i buy the view Mr. Gupta you desire to sale me,Article 66 of Limitation Act would become redundant but the rule of interpretation demands us not to think so rather it castes us with duty to think that each word used in any legislation must not be overlooked but should be given a meaning with its context.
prabhakar singh
(Expert) 03 November 2011
ARTICLE 66 READS::.
For possession of immovable property when the plaintiff has become entitled to possession by reason of any forfeiture or breach of condition.
Twelve years
When the forfeiture is incurred or the condition is broken.
prabhakar singh
(Expert) 03 November 2011
Had there not been a suit filed by the land lord after the determination of tenancy in year 1990,and rents were received by the land lord even after determination of tenancy,i would have bought your view as envisaged in section 116 TPA enacting doctrine of holding over.But he then filled a suit of eviction that means the cause of action which started to run by notice was utilized then i can not view that "dismissal of his suit in 1998" and there after his inaction up to the expiry of period of limitation would be construed as tenant "or otherwise assents to his continuing in possession"[116TPA].TO ME IT IS NOT ANY KIND OF ASSENT BUT A FAILURE OF ONE'S OWN DUTY TO BRING A SUIT WITH IN 12 YEARS FROM THE YEAR 1990 AS THE SAME WAS UTILIZED BY FIRST SUIT SO THAT WAS RUNNING AND STOOD EXPIRED BEFORE THE SECOND NOTICE WAS SERVED.EVEN RENT DEPOSITED UP TO 1998 WAS NOT ACCEPTED SO THAT WE MAY GO INCLINED TO RESCUE HIM U/S 116 TPA.
prabhakar singh
(Expert) 03 November 2011
I hope Mr. Gupta will keep this discussion going on till one of us find a full stop for the other as the mater seems interesting for either side.
Ravikant Soni
(Querist) 04 November 2011
Me also waiting something from Gupta Sir.
