Can a Tenant or Licensee Claim Adverse Possession?

Adverse possession is a doctrine that allows a person in long, continuous, hostile, and uninterrupted possession of immovable property to acquire ownership rights by operation of law. However, when the person in possession originally entered the property with the consent of the owner, such as a tenant or licensee, the application of this doctrine becomes highly restricted and legally complex. Courts in India have consistently held that permissive possession stands on an entirely different footing from hostile possession.

A tenant or licensee cannot ordinarily claim adverse possession against the landlord or licensor because their possession is permissive, and it can become adverse only after a clear, open, and communicated repudiation of the owner’s title followed by continuous hostile possession for the full statutory limitation period.

This article provides a detailed, structured, and comprehensive analysis of whether and under what exceptional circumstances a tenant or licensee can claim adverse possession under Indian law.

Understanding Adverse Possession in Brief

Adverse possession arises when a person occupies immovable property:

Without the permission of the true owner,
Openly, continuously, and exclusively,
In denial of the owner’s title,
For the statutory limitation period prescribed under the Limitation Act, 1963.

Once the limitation period expires, Section 27 of the Limitation Act extinguishes the true owner’s right to recover possession.

Who Is a Tenant and Who Is a Licensee?

Before examining adverse possession claims, it is important to understand the legal status of tenants and licensees.

Tenant

A tenant is a person who occupies property under a lease, express or implied, in consideration of rent or premium. The tenant acknowledges the landlord’s ownership and derives the right to possess from that ownership.

Licensee

A licensee occupies property by permission of the owner without any interest in the property. The possession of a licensee is purely permissive and revocable.

In both cases, possession originates from the consent of the true owner.

Nature of Possession of a Tenant or Licensee

The possession of a tenant or licensee is described as:

Permissive possession
Possession in recognition of the owner’s title
Possession subordinate to the rights of the owner

This foundational characteristic directly conflicts with the concept of hostile possession, which is essential for adverse possession.

Why Permissive Possession Cannot Become Adverse Automatically

Indian law draws a clear distinction between permissive and hostile possession.

Key principles include:

Law presumes possession to be lawful.
Permissive possession cannot be adverse in law.
Length of possession alone does not convert permissive possession into adverse possession.

Therefore, mere continuation in possession after expiry of lease or licence does not make the possession adverse.

Legal Position Under the Limitation Act, 1963

Article 65

Article 65 provides a limitation period of 12 years for suits for possession based on title, starting from the date when possession becomes adverse.

For tenants or licensees:

Possession does not become adverse merely on expiry or termination of tenancy or licence.
The limitation period starts only when possession becomes hostile in law.

Section 27

Section 27 extinguishes the owner’s right only after the limitation period runs out from the date possession becomes adverse, not from the date permission ends.

Judicial View: Tenant or Licensee and Adverse Possession

Indian courts have consistently held that:

A tenant or licensee cannot claim adverse possession unless there is a clear repudiation of the landlord’s or licensor’s title.
Such repudiation must be open, unequivocal, and to the knowledge of the owner.

Courts treat such claims with extreme caution due to the fiduciary and contractual nature of the relationship.

When Can a Tenant or Licensee Claim Adverse Possession?

Although rare, adverse possession by a tenant or licensee is not legally impossible. It can arise only if all the following conditions are satisfied:

1. Clear Repudiation of the Owner’s Title

The tenant or licensee must clearly and unequivocally deny the title of the landlord or licensor.

This repudiation must be:

Explicit or clearly implied from conduct,
Inconsistent with the continued recognition of the owner’s title.

Silent continuation in possession is insufficient.

2. Communication of Repudiation to the Owner

Repudiation must be brought to the knowledge of the true owner.

This can be through:

Express notice,
Conduct so open and hostile that the owner is deemed to have knowledge.

Without communication, possession remains permissive in law.

3. Hostile Possession Thereafter

After repudiation:

Possession must be hostile,
In denial of the owner’s title,
Continuous and uninterrupted.

The limitation period starts only from this point.

4. Completion of Statutory Limitation Period

The tenant or licensee must remain in hostile possession for:

12 years (private property), or
30 years (Government property).

Any interruption resets the limitation clock.

Mere Overstay Does Not Create Adverse Possession

One of the most common misconceptions is that:

A tenant who overstays after termination of tenancy acquires adverse possession.

Courts have consistently rejected this view. Overstay creates:

Unauthorised possession,
But not adverse possession.

Unauthorised possession becomes adverse only after hostility is clearly established.

Payment of Rent or Acknowledgment of Ownership

Any act that acknowledges the owner’s title destroys adverse possession.

Such acts include:

Payment of rent,
Request for renewal of lease,
Seeking regularisation,
Entering into settlement discussions.

Acknowledgment resets the limitation period and reaffirms permissive possession.

Tenant or Licensee Under Agreement to Sell

A person in possession under an agreement to sell:

Holds possession in recognition of the owner’s title,
Cannot claim adverse possession unless the agreement is repudiated and hostility is asserted.

Courts treat such possession as permissive.

Tenant or Licensee in Government Property

Claims of adverse possession by tenants or licensees against Government property face:

A longer limitation period of 30 years,
Much stricter judicial scrutiny,
Strong public interest considerations.

Such claims are rarely accepted.

Burden of Proof on Tenant or Licensee

The burden of proof lies entirely on the tenant or licensee claiming adverse possession.

They must prove:

Date and manner of repudiation,
Knowledge of the owner,
Continuous hostile possession thereafter,
Completion of limitation period.

The standard of proof is extremely high.

Evidence Required to Support Such a Claim

Courts may examine:

Documentary evidence showing assertion of ownership,
Revenue records changed unilaterally,
Construction or alienation acts inconsistent with tenancy,
Witness testimony showing open denial of ownership,
Absence of rent payment for the hostile period.

Even then, courts remain cautious.

Common Reasons for Rejection of Such Claims

Courts commonly reject adverse possession claims by tenants or licensees due to:

Absence of clear repudiation,
Continued acknowledgment of ownership,
Inconsistent pleadings,
Lack of documentary evidence,
Family or fiduciary relationship.

Adverse Possession in Family or Informal Tenancies

In family arrangements:

Possession is presumed permissive,
Hostility is even harder to prove,
Courts demand very clear evidence of ouster.

Such claims rarely succeed.

Practical Guidance for Landlords and Licensors

Property owners should:

Issue timely notices after termination,
Initiate eviction proceedings promptly,
Avoid long inaction,
Maintain records of ownership and rent.

Prompt action prevents adverse possession claims.

Practical Guidance for Tenants and Licensees

Tenants or licensees should understand that:

Long possession does not create ownership,
Adverse possession claims are exceptional,
Wrongful claims may weaken their legal position.

Legal advice is essential before asserting such claims.

Conclusion

A tenant or licensee cannot ordinarily claim adverse possession under Indian law because their possession is permissive and in acknowledgment of the owner’s title. Permissive possession, however long it continues, does not become adverse automatically. Only in exceptional circumstances—where there is a clear, open, and communicated repudiation of the owner’s title followed by continuous hostile possession for the full statutory limitation period—can such a claim even be considered.

Indian courts apply extreme caution in examining adverse possession claims by tenants and licensees, given the contractual and fiduciary nature of their relationship with the owner. Therefore, such claims remain rare exceptions, not the rule, and succeed only when supported by strong evidence and legally consistent conduct over a long period.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304