Acquisition of Ownership by Possession

The Explanation defines interruption: nothing is an interruption within the meaning of the section unless there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice of it and of the person making or authorising it.

The conditions, which is what an answer needs

Take the words of the section and list them, because each is a condition and each can be argued about.

One, PEACEABLY. Enjoyment maintained by force is not enjoyment as of right.

Two, OPENLY, for a way, watercourse or other easement. The owner must have been in a position to object. Secret enjoyment gives nothing. Note that "openly" appears in the second limb of sub-section (1) and not the first, since light and air are enjoyed visibly by their nature.

Three, AS AN EASEMENT AND AS OF RIGHT. This is the condition that decides most disputes. Enjoyment must be as of right, not by permission. A neighbour who lets you cross his field as a favour, or under a licence, gives you nothing however long it lasts, because you were never asserting a right. Enjoyment must also be as an easement, that is for the benefit of the dominant tenement, not as an owner.

Four, WITHOUT INTERRUPTION, and the Explanation makes this generous to the claimant. An interruption requires actual discontinuance, caused by another person's act, and submitted to or acquiesced in for a full year after the claimant knows of it and knows who caused it. So a neighbour who fences the path off for six months, or who fences it off and is at once sued, has not interrupted anything in the eye of the section.

Five, FOR TWENTY YEARS, or thirty years where the servient property belongs to the Government.

Six, the period must END WITHIN TWO YEARS NEXT BEFORE THE SUIT. This is sub-section (2) and it is the limb most often omitted. Twenty years of enjoyment finished long ago will not do. The twenty-year period relied on must end within two years before the suit in which the claim is contested. A claimant who enjoyed a way from 1980 to 2000 and sues in 2026 cannot rely on that period; he must show twenty years ending within two years of his suit.

The effect of satisfying all six is stated in the strongest words the Act uses anywhere: the right is absolute and indefeasible.

Section 26: the reversioner's protection

Section 25 could work an injustice. Suppose the servient land is held on a lease for thirty years. The lessee may allow a neighbour to use a path across it and never object, but the owner of the reversion has no possession and may know nothing about it. Twenty years would run and his land would come back to him burdened with an easement he never had a chance to resist.

Section 26 meets that.

Where any land or water upon, over or from which an easement has been enjoyed or derived has been held under or by virtue of any interest for life, or in terms of years exceeding three years from the granting thereof, the time of the enjoyment of the easement during the continuance of that interest or term shall be excluded in the computation of the period of twenty years, in case the claim is, within three years next after the determination of that interest or term, resisted by the person entitled on such determination to the land or water.

So three conditions for the exclusion:

• the servient land was held under a life interest or a term of years exceeding three years
• the person entitled on the determination of that interest resists the claim
• he does so within three years after the interest or term determines

If he does not resist within those three years, the exclusion does not operate and the enjoyment counts.

Extinguishment of the right: section 27

The section is one sentence, and it should be learned in its own words.

Section 27: "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."

Four things follow from it.

One, this is the exception to the whole Act. Everywhere else the Act bars the remedy and leaves the right alone; a time-barred debt is still owed. Here the right itself dies. See [Object and Features of the Limitation Act 1963].

Two, it applies to suits for POSSESSION OF PROPERTY. The words are "any property", so it is not confined to land, though land is where it matters.

Three, the extinguishment is automatic. The section does not require the possessor to sue, or to obtain a declaration, or to do anything at all. At the determination of the period, the owner's right is gone by force of the section.

Four, the possessor's title is a consequence, not a grant. Section 27 does not say the possessor becomes the owner. It says the former owner's right is extinguished. But once no one has a better right, the person in possession holds the property against the world, and that is what is meant by acquiring title by adverse possession.

Where the period comes from: Articles 64, 65 and 112

Section 27 speaks of "the period hereby limited", so you must go to the Schedule to find it.

Article 65: a suit for possession of immovable property or any interest therein based on title, twelve years, running from when the possession of the defendant becomes adverse to the plaintiff.

Article 64: a suit for possession of immovable property based on previous possession and not on title, where the plaintiff while in possession has been dispossessed, twelve years from the date of dispossession.

Article 112: any suit by or on behalf of the Central Government or any State Government, except a suit before the Supreme Court in its original jurisdiction, thirty years, running from when the period would begin to run under the Act against a like suit by a private person.

So the ordinary answer is twelve years, and thirty years where the plaintiff is the Government.

The Explanation to Article 65 settles when possession becomes adverse in three difficult cases: where the suit is by a remainderman, reversioner or devisee, only when the estate falls into possession; where the suit is by a Hindu or Muslim entitled to possession on the death of a Hindu or Muslim female, only when the female dies; and where the suit is by a purchaser at an execution sale and the judgment-debtor was out of possession at the date of the sale, the purchaser is deemed the representative of the judgment-debtor who was out of possession.

What makes possession "adverse"

Article 65 turns on the possession being adverse, and the Act does not define the word, so state what it must contain and keep to what can be defended.

Possession must be actual, open, and exclusive, held as owner, and it must be hostile to the true owner's title and continuous for the whole statutory period. The owner must be in a position to know of it, since time is running against him.

Two consequences follow from that, and both are commonly asked.

Permissive possession is never adverse. A tenant, a licensee, a caretaker or a servant holds through the owner's title, not against it. Their possession can only become adverse after they have clearly and openly repudiated the owner's title to his knowledge, and time runs from that repudiation.

Possession must be continuous. A break in possession sets the count back, because the article requires twelve years of adverse possession, not twelve years since it first began.

The two ideas side by side

A worked example

Wasim owns a plot. Yamini owns the plot behind it and has walked across Wasim's plot to reach the road since 2004, openly, without asking anyone.

Has she a right of way? If the enjoyment has been peaceable, open, as an easement and as of right, and without interruption for twenty years, section 25(1) makes the right absolute and indefeasible.

Wasim says he allowed it as a favour. If that is made out, the claim fails. Enjoyment by permission is not enjoyment as of right, and no length of it will do.

Wasim blocked the path with a gate for six months in 2019 and then removed it. Not an interruption. The Explanation requires the obstruction to be submitted to or acquiesced in for one year after the claimant has notice of it and of the person responsible.

Yamini stopped using the path in 2024 and sues in 2026 relying on 2004 to 2024. Section 25(2): each period of twenty years must end within two years next before the institution of the suit. Her period ended in 2024, and the suit is in 2026, so the period ends exactly within the two years; had she waited until 2027 the claim would fail on this ground alone.

The plot belonged to the Government. Section 25(3): the period is thirty years, not twenty.

The plot was under a twenty-year lease and the lessor resisted the claim a year after it expired. Section 26: the time of enjoyment during the term is excluded, because the term exceeded three years and the reversioner resisted within three years of its determination.

Now change the claim. Suppose Yamini did not merely cross the plot but occupied it, fenced it, built on it and has held it openly as owner since 2004, and Wasim sues in 2026 for possession on the strength of his title.

Article 65 gives him twelve years from when Yamini's possession became adverse to him. Twelve years from 2004 expired in 2016.

Section 27: at the determination of that period his right to the property is extinguished. It does not merely become unenforceable. Yamini need not prove that she acquired title; she needs only to show that his is gone.

Suppose Yamini had been Wasim's tenant. Her possession was permissive and not adverse. Time would run only from an open repudiation of his title brought to his knowledge.

Suppose the plot belonged to the State Government. Article 112: the period for a suit by the Government is thirty years.

Suppose Yamini left the plot for three years in the middle. The possession was not continuous, and the twelve years must run afresh.

What it does not mean

Enjoyment by permission gives nothing, under either section. Not as of right, and not adverse.

Twenty years at any time will not do. Section 25(2) requires the period to end within two years before the suit.

An obstruction is not automatically an interruption. The Explanation requires acquiescence for a year after notice.

Section 27 does not confer title on the possessor in terms. It extinguishes the owner's right, and possession does the rest.

Section 27 is not the general rule. Everywhere else the Act bars the remedy only.

Adverse possession is not established by mere long occupation. It must be open, exclusive, hostile, as owner, and continuous throughout the period.

Quick revision

Section 25(1): light or air to a building, and any way, watercourse, use of water or other easement, peaceably (and, for the second class, openly) enjoyed as an easement and as of right, without interruption, for twenty years, becomes absolute and indefeasible. 25(2): each period of twenty years must end within two years next before the suit in which it is contested. 25(3): thirty years where the servient property belongs to the Government. Explanation: an interruption needs actual discontinuance by another's act, submitted to or acquiesced in for one year after notice of it and of the person responsible.

Section 26: where the servient land was held for life or for a term exceeding three years, the enjoyment during that interest is excluded, if the reversioner resists within three years of its determination.

Section 27: at the determination of the period limited for a suit for possession of any property, the plaintiff's right to that property is extinguished. The one place the Act destroys the right and not merely the remedy. Article 65: possession of immovable property based on title, twelve years from when the defendant's possession becomes adverse. Article 64: possession based on previous possession, twelve years from dispossession. Article 112: a suit by the Government, thirty years. Adverse possession must be actual, open, exclusive, hostile, held as owner, and continuous. Permissive possession is never adverse.

Test yourself

1. State the conditions for acquiring an easement by prescription. Under section 25(1) the access and use of light or air, or the enjoyment of a way, watercourse, use of water or other easement, must be peaceably enjoyed, and in the second class openly enjoyed, as an easement and as of right, without interruption, for twenty years, and by section 25(2) that period must end within two years next before the institution of the suit in which the claim is contested. Where the servient property belongs to the Government the period is thirty years.

2. What amounts to an interruption? By the Explanation to section 25, nothing is an interruption unless there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless that obstruction is submitted to or acquiesced in for one year after the claimant has notice of it and of the person making or authorising it.

3. What does section 26 protect against? Against an easement being acquired over land during a life interest or a term of years exceeding three years, when the person entitled on the determination of that interest had no opportunity to resist. The time of enjoyment during the interest or term is excluded, provided the claim is resisted within three years next after its determination by the person then entitled to the land or water.

4. Reproduce section 27 and explain its significance. "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." Its significance is that it is the exception to the general rule that the Limitation Act bars the remedy and not the right. Here the right itself is extinguished, automatically and without any proceeding, and the person in possession is thereafter secure because no one has a better right.

5. What is the period for a suit for possession of immovable property based on title? Twelve years, under Article 65 of the Schedule, running from when the possession of the defendant becomes adverse to the plaintiff. For a suit by or on behalf of the Central or a State Government the period is thirty years under Article 112.

6. Can a tenant acquire title by adverse possession? Not while his possession remains permissive, since he holds through the landlord's title and not against it. His possession can become adverse only from an open repudiation of the landlord's title brought to the landlord's knowledge, and the twelve years run from that point.

7. What must be shown to establish adverse possession? Possession that is actual, open, exclusive and held as owner, hostile to the true owner's title, and continuous for the whole statutory period, so that the owner was in a position to know that time was running against him.