One Cannot Claim to Own and Trespass at the Same Time — Adverse Possession Begins Only When Ownership Is Disclaimed - Mutually Destructive: Bombay High Court

“Plea of Ownership and Adverse Possession Are Mutually Destructive” - In a detailed judgment Bombay High Court, through Justice Gauri Godse, dismissed a Second Appeal that attempted to set aside concurrent findings of two lower courts granting possession and mesne profits to a widow who sought to reclaim her husband’s property from her own sister. The Court decisively ruled that a person claiming ownership of land cannot, at the same time, assert adverse possession, as both claims are mutually inconsistent and legally incompatible.

The Court held that mere long possession or entry in revenue records does not amount to adverse possession, especially when the defendant herself claimed ownership based on an unproven gift.

“The defendant cannot at once claim that she is the owner and simultaneously assert hostile possession,” the Court said, adding that adverse possession requires an explicit denial of the true owner's title, which was absent in this case.

High Court concluded that the plaintiff’s title was proved, the defendant’s possession was unauthorized, and the suit filed in 1987 was well within limitation under Article 65 of the Limitation Act, 1963.

“Suit for Possession Is Not Barred by Limitation When Defendant’s Possession Never Became Adverse”: Court Clarifies Application of Article 65

The main issue before the Court was whether the suit for possession filed by the plaintiff in 1987 was barred by limitation, given the defendant’s possession since 1971. The defendant, who was the plaintiff’s sister, had claimed that the suit land was gifted to her and had her name entered in Mutation Entry No.49 in the revenue records. However, this entry was cancelled in 1984 after an official inquiry found no supporting gift deed or the plaintiff’s consent.

Justice Godse, examining the legal position under Article 65 of the Limitation Act, reiterated that the 12-year limitation period begins only when the possession of the defendant becomes adverse to the true owner, not merely from the date of entry into possession.

“There is no material on record to show that the defendant’s possession was adverse to the plaintiff,” the Court said. “The suit based on title can be filed within 12 years from the commencement of adverse possession. If such possession is not proved, the limitation does not even begin to run.”

Thus, the Court upheld the finding that the plaintiff only became aware of the unauthorized possession on 26th March 1984, and the suit filed in June 1987 was timely.

“Mere Mutation Entry Doesn’t Prove Ownership or Adverse Possession”: Court Calls Out Misuse of Revenue Records to Claim Title

The defendant’s primary reliance on Mutation Entry No.49, made in her name in 1971, was categorically rejected by the Court. Justice Godse emphasized that a mutation entry in the 7/12 extract is not evidence of ownership or even of valid possession.

“Mere entry in revenue records without a valid underlying document of title cannot confer ownership,” the Court said, echoing the settled legal position upheld by the Supreme Court in Prem Nath Khanna v. Narinder Nath Kapoor.

The plaintiff successfully established that the defendant's name was wrongly entered without her knowledge or consent, and that too during a time when she was still a minor. The mutation was cancelled by the Tahsildar in 1984, and the plaintiff’s name restored.

According to the Court, once this wrongful entry was rectified, and the plaintiff sought recovery of possession promptly thereafter, the defendant’s plea of limitation collapsed.

“To Prove Adverse Possession, One Must Plead Hostility, Knowledge, and Duration — All Missing in Defendant’s Case”

The Court drew extensively from Supreme Court jurisprudence to clarify what constitutes valid adverse possession. Relying on Karnataka Board of Wakf v. Government of India, Neelam Gupta v. Rajendra Kumar Gupta, and Ravinder Kaur Grewal v. Manjit Kaur, the Court reiterated that:

“Plea of adverse possession is not a pure question of law but a blended one of fact and law. A person who claims adverse possession must show:
(a) on what date they came into possession,
(b) what was the nature of their possession,
(c) whether the factum of possession was known to the true owner,
(d) how long their possession continued, and
(e) whether it was open, uninterrupted, and hostile.”

In this case, the Court found that the defendant never renounced the plaintiff’s title, and in fact claimed ownership herself under a supposed gift — which completely defeated her alternative plea of adverse possession.

“The pleas on title and adverse possession are mutually destructive. The latter cannot begin to operate until the former is renounced,” the Court concluded.

“Trespasser’s Possession, No Matter How Long, Does Not Become Adverse Without Animus Possidendi”: Plaintiff’s Right to Recover Property is Absolute

The Court decisively rejected the argument that the defendant’s long-standing possession since 1971, by itself, gave rise to a claim of adverse possession.

Citing Ravinder Kaur Grewal, the Court reaffirmed that:

“Trespasser's long possession is not synonymous with adverse possession. The owner can take possession from a trespasser at any point in time unless 12 years of hostile possession are proved.”

The absence of animus possidendi — that is, intent to possess the property in denial of the owner’s title — was fatal to the defendant’s claim.

As the Court held:

“The defendant’s possession, not being under any legal title and not proven to be hostile to the true owner, remained unauthorized. She was, therefore, a trespasser with no right to retain possession.”

The Bombay High Court's judgment reinforces the strict legal standard for claiming adverse possession, especially where the defendant’s own case is based on a claim of ownership. The decision highlights that:

• Long possession does not automatically become adverse possession.

• Mutation entries are not proof of ownership.

• Contradictory defences weaken credibility, especially when ownership and adverse possession are claimed simultaneously.

The Court’s reasoning provides clarity on Article 65 of the Limitation Act, confirming that the limitation period starts only when adverse possession begins, which must be specifically pleaded and clearly proved.

Finding no error in the concurrent findings of the lower courts, the Second Appeal was dismissed, confirming the plaintiff’s right to reclaim possession and mesne profits.

Date of Decision: November 3, 2025