Adverse Possession Cannot Exceed What Is Actually Possessed: Bombay High Court

In a significant ruling balancing legal finality with practical reality, the Bombay High Court on 6th February 2026 partially allowed a 30-year-old appeal by M/s. Shri Tirthankar Co., modifying a decree of adverse possession in favour of the Respondents. Justice Kamal Khata, sitting in civil appellate jurisdiction, exercised powers under Order XLI Rules 32 and 33 of the Code of Civil Procedure to limit the declaration of ownership by adverse possession to the extent of actual, measured possession—just 38 square metres instead of the 170 square yards granted by the Trial Court.

The judgment in First Appeal No. 945 of 1994 arises from a suit originally filed in 1974, which was dismissed in 1994 by the Bombay City Civil Court. The trial court had gone further to declare the Defendants owners by adverse possession over 170 square yards of land from CTS No. 185 in Goregaon. However, during the pendency of the appeal, a Court Receiver’s report dated 13 October 1995 recorded that the Defendants were actually in possession of only 38 sq. metres (409 sq. ft.), a finding that has since governed the conduct of both parties under a status quo order for more than three decades.

“The decree merges into the appellate court’s order, and can be moulded to reflect ground realities and equitable considerations.”

Counsel for the Appellant submitted that in view of the longstanding adherence to the status quo order dated 10 November 1995, and the absence of possession beyond the said 38 sq. metres, the Appellant would not press the appeal on merits but only sought a modification of the decree in line with the measured facts.

Justice Khata accepted this position, holding:

“In these peculiar facts and circumstances of the case, and having regard to the unequivocal statement made on behalf of the Appellant, this Court is of the view that the ends of justice would be met by accepting the said statement and modifying the impugned decree accordingly.”

Relying on the Supreme Court's ruling in Chandi Prasad v. Jagdish Prasad [(2004) 8 SCC 724], the Court reiterated the principle that an appellate court is fully empowered to vary or modify a decree even when the appeal is not pressed on merits, especially where the decree has merged into the appellate proceedings and factual developments require such adjustment.

“Status Quo Has Effectively Regulated Possession for Over 30 Years”

A key factor influencing the Court’s decision was the stability created by the Receiver’s measurement and the parties' adherence to the status quo order since 1995. The Architect's report, prepared under Court directions, had clearly demarcated the area held by the Respondents, and the Court saw no reason to disturb this long-standing equilibrium.

The Court noted:

“Since 1994, for more than thirty years, the parties have regulated their possession strictly in accordance with the status quo order dated 10 November 1995.”

Given this context, the Court held that there was no basis for the Trial Court’s wider declaration of ownership by adverse possession over 170 sq. yards and confined it strictly to the 38 sq. metres (409 sq. ft.) shown in the Architect’s plan.

“Adverse Possession Cannot Exceed What Is Actually Possessed”

While the suit itself stood dismissed, the appellate court carved out a limited declaration in favour of the Respondents—confirming their title by adverse possession only to the extent they physically occupied, as per the Receiver’s report.

The Court’s order clarified:

“It is, however, declared that the Defendants have acquired ownership by adverse possession only in respect of the portion of land admeasuring 38 sq. metres (409 sq. ft.) from out of CTS No. 185, village Pahadi, Goregaon, as shown in orange colour in the plan annexed to the Architect’s report dated 13 October 1995.”

Thus, while the Plaintiff’s prayer for full possession was rejected, the Court prevented the decree from being used as a springboard for unjust enrichment beyond actual possession.

Appellate Court Powers Must Serve Equity and Precision

This judgment not only affirms the flexibility available to appellate courts under Order XLI CPC, but also lays down a critical precedent on how claims of adverse possession must conform to measured and proven facts. It demonstrates that a court is well within its rights to mould relief based on the equities revealed during the pendency of litigation, especially where status quo has stood unchallenged for decades.

In doing so, the Bombay High Court has ensured that equity, possession, and legal decree all align, preventing speculative claims of ownership from overriding ground realities.

Date of Decision: 6 February 2026