Legal Thesaurus

Nec vi, nec clam, nec precario

Elements of adverse possession:—

(a) The possession should be shown to have been brought to the knowledge of the owner. [AIR 1934 PC 23: AIR 1919 PC 62: AIR 1984 SC 930: AIR 1978 HP 24].

(b) Possession is never considered adverse if it can be referred to a lawful title. [AIR 1950 Nag 127: ILR 1949 Cut 804].

(c) Possession must be nec vi, nec clam, nec precario. viz., possession must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. [AIR 1934 PC 23].

(d) There can be no adverse possession if the defendant himself did not know that he was occupying some body’s land. He must have the intention of using the property adversely against other claimant. [157 IC 283; See also AIR 1975 Gau 76: AIR 1970 P&H 298].

(e) Unlawful possession does not mean adverse possession. [AIR 1972 J&K 75: AIR 1976 Ori 218].
The possession necessary to support a claim of title by prescription must be adverse, that is it must be actual and uninterrupted, open and notorious, hostile and exclusive and under a claim of right for the statutory period. If any of these elements is lacking title by adverse possession cannot ripen. It is an aggressive act and it is necessary therefore that before permissive possession can be converted into adverse possession, there should be a disclaimer of the owner’s title of such a character and so open that the real owner must be presumed to know that possession adverse to his title has been taken. Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession, however long continued, adverse to him. [AIR 1959 Punj 561].

The courts are very unwilling to convert a possession, which commenced lawfully into a wrongful and adverse possession. Possession cannot become adverse so long as a legal origin can be assigned to it, i.e., its commencement can be referred to a legal title. [Yesu v. Fulchand, 4 Bom LR 964]. [Article 65, Limitation Act].

[See also Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale, (2009) 12 SCC 101; Balkrishan v. Satyaprakash, (2001) 2 SCC 498; State of Rajasthan v. Harphool Singh, (2000) 5 SCC 652].

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