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Property lawyer: the onus to prove adverse possession is upon the defendant; SC.

Supreme Court of India

Justice Abhay Manohar Sapre

The plea of adverse possession can be used as a shield but not as a Sword, that is, in the suit it can be used as a defence, but the suit cannot be be filed on the basis of adverse possession.

In the case titled as "Mallika Arjunaiah versus Nanjaiah and others", the SC has held that the burden to prove the adverse possession is on whom, who takes the plea of that. It was further held there has to be element of hostility for more than 12 years to succeed in the defence of adverse possession. In the present case, the plaintiff came to know about possession of the defendant only in 1983, and the suit was filed in 1992, which was held to within limitation.

In the said case, the suit of the plaintiff was decreed, and the defence of adverse possession was rejected of the defendant. The order of the High Court was set aside. The Appeal was allowed.

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