Licensees Cannot Claim Adverse Possession, Says Kerala High Court

The High Court of Kerala, on May 24, 2024, dismissed the second appeal in the case of A. Sivalingappa Gowder vs. N.A. Anidas, reaffirming the lower courts' judgments. The court ruled that the appellants, who claimed rights over the property through adverse possession and limitation, were merely licensees and not co-owners, thus mandating their eviction from the premises.

The dispute revolved around 98 cents of landed property and a residential building originally belonging to Anandarama Gowder. His three sons, Devaraja Gowder, Subbayya Gowder, and Sivalingappa Gowder, inherited the property. Following a family partition in 1957, Devaraja and Subbayya became the co-owners of the property, while Sivalingappa continued to reside in one portion with permission. The plaintiffs, N.A. Anidas and N.A. Ajidas, purchased Devaraja’s share in 2001 and subsequently filed a suit for mandatory injunction to vacate the appellants from the property, which was contested on grounds of adverse possession and limitation by the appellants.

The court meticulously evaluated the appellants' claim of adverse possession and limitation. It found that after the 1957 partition deed, Sivalingappa Gowder's occupancy was merely permissive, akin to a licensee status. The court observed, "The defendants could not prove the claim of adverse possession. The continued residence in the property was with the permission of Devaraja Gowder, making them licensees, not co-owners."

Justice C. Pratheep Kumar highlighted the inapplicability of Section 44 of the Transfer of Property Act, which deals with the transfer by one co-owner, to the appellants. "Since the first defendant ceased to be a co-owner post the 1957 partition, he is not entitled to joint possession or other common enjoyment of the property," the judgment stated.

Addressing the procedural appropriateness, the court asserted that the plaintiffs’ immediate legal action post-termination of the license justified the suit for mandatory injunction. The court quoted, "In cases where a licensee refuses to vacate, a suit for mandatory injunction is sufficient without necessitating a separate suit for recovery of possession."

The judgment elaborated on the principles governing the rights of licensees versus co-owners. It reaffirmed that a licensee does not possess the legal standing to claim adverse possession. The court underscored, "A licensee’s occupation, even if prolonged, does not transform into adverse possession unless it is proved to be hostile to the licensor’s knowledge and with acquiescence."

Justice Pratheep Kumar remarked, "The protection under Section 44 of the Transfer of Property Act is available only to co-owners. The appellants, being licensees, cannot invoke this protection and must vacate the premises upon termination of their license."

The High Court’s decision to dismiss the appeal reinforces the legal principles surrounding property rights and adverse possession. By upholding the rights of new property owners and clarifying the limited rights of licensees, the judgment serves as a significant precedent in property law, emphasizing the necessity of clear and convincing evidence to substantiate claims of adverse possession.

Date of Decision: May 24, 2024