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Adverse possession

Adverse possession

June 30, 2022

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This article is written by Parth Verma, a student of the School of Law, Christ University, Bengaluru. This article seeks to elucidate upon the doctrine of adverse possession and its implications.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

It is a well-known fact that a person who is the owner of a piece of land or any property has the right to possess, preserve and manage the same at their discretion. In other words, they are free to make any decision regarding the same. However, many times when this property is decided to be given to some other individual such as a tenant by the owner either on rent or on a lease they might lose their right or title over their land in certain exceptional circumstances. This might happen when the tenant possesses the land for a period of more than 12 years without the owner’s will or consent. Despite the property still being within the ownership of the landlord, the law would favour the possessor in this situation and not the owner.

As a result, it becomes a very relevant question thereby to determine whether such a doctrine is even required and should some changes be brought into it.

What is adverse possession

Adverse possession essentially means when a tenant possesses the property of the owner when they are not legally entitled to do the same overtly i.e., without any attempt regarding the concealment from the owner. In such a situation, if they continue to hold the property unlawfully for more than 12 years and the owner, despite having the same, doesn’t take any action over these years, they would lose their right to claim the property by filing a suit in the court of law upon the expiration of this term. As a result, the person in the possession of the property will acquire a prescriptive title over the land through adverse possession.

This concept is based on the legal maxim ‘vigilantibus non-dormientibus subvenit lex’ which means that the law favours only the active citizens and not those who are dormant or in other words, are not concerned about their rights. This concept, at times, might be unfair to the lawful owner of the property due to which it is subject to certain exceptions. Yet, in such a situation, the landlords failed to enforce the rights available to them. Hence, they shall not be allowed to reinforce the same or re-enter their land after a long passage of time. The person who possessed the land even if unlawfully has certain expectations due to the long passage of time which is 12 years in which no action was taken. It could prove to be unjust to the possessors if some action is taken after so long when they have become accustomed (habituated) to using that property.

For the possession to be adverse, there are several essential elements required to be fulfilled, and such elements have been derived from the various case-laws which are discussed below.

Illustrations

a) A person X provides his land on rent to Y for a period of 6 months. However, even after the expiry of the time period, he continues to possess the property. Despite knowing about the possession, X doesn’t take any action and Y continues to possess the property for 12 years. In such a situation, Y can claim adverse possession over the property and after 12 years, X can’t claim the ownership of the land.

b) An individual B was employed by C to maintain his house while he is not there. B started staying on C’s property while C returns after 12 years. In this situation, C can’t claim ownership of the property and the possession would be transferred to B. This is an example of a possession that was adverse from the very beginning.

c) A person named X entered into a property owned by the Government but not in operation and started staying in it. As a result, the period of adverse possession began as soon as X entered into the Government property. If the Government files a suit against the person after 30 years of continuous possession, then X would be able to claim adverse possession of Government-owned property because the period of limitation which was 30 years to file a declaratory suit got over.

The doctrine of adverse possession

The doctrine of adverse possession states that when a person holds the property owned by any other individual for an uninterrupted period of more than 12 years, they would become the lawful owner of the land. This doctrine was introduced initially in India in 1907 and was based on the following principles:

There should be no question regarding the ownership of the property i.e., the property that has been possessed by the tenant unlawfully must be lawfully owned by the landlord and there shall be no question upon it.
The person who is possessing the property shall be considered the owner of the same if for a longer period of time there has been no intervention on part of the original owner.
A person who owned the property but later on left it without doing anything is considered to have waived off their right on that property or the land.

Later on, several developments took place in the doctrine itself according to the changing context of India’s changing conditions.

Legal protection for adverse possession

In India, there are no specific laws explicitly mentioning or explaining this given doctrine. Yet under the Limitation Act, 1963 there are a few provisions that deal with this doctrine.

a) Section 27 of the Limitation Act, 1963 reaffirms the limitation period to file a suit on the part of the property owner to be 12 years. After the other party has possessed the property for more than 12 years continuously, no action shall lie against them.

b) Article 64 and Article 65 of the Limitation Act, 1963 lay down the onus on the tenant to prove the dispossession of the property for the period of 12 years. At the same time, the burden to prove the period of adverse possession within 12 years falls on the landlord.

c) For adverse possession of any kind of Government property the period to claim the ownership for the Government or any public organization has been fixed at 30 years. In other words, it is only after 30 years of uninterrupted possession on the part of the person that no action for claims could be filed in case of Government ownership.

Landmark judgments relating to adverse possession in context of Limitation Law

These are the provisions in the Limitation Act that explain the doctrine of adverse possession. In the case of the Karnataka Board of Wakf v. Government of India (2004), it was laid down by the Court that when any other person takes possession of the property owned by any other person and asserts right over it. Despite this, if the landlord having the lawful ownership doesn’t take any legal action for 12 years or more, the ownership immediately gets transferred to the possessor. The guideline laid down in this case further asserts the doctrine of adverse possession.

In another landmark judgment in the case of Amrendra Pratap Singh v. Tej Bahadur Prajapati (2003), the definition of Adverse Possession was given very comprehensively. The Court stated that if a person, despite not having the right of the possession of the land, continues to prescribe the title over the land to himself for a period of 12 years without any legal action being initiated, the original owner loses the title over that land.

In another case of the Secretary of State v. Vira Rayan (1886), the Court held that the possession should be very open as well as hostile so that even the owner and the immediate neighbours can be aware of what is happening through reasonable diligence. For the factual possession of the property, there is also a need to prove the intention on the part of the possessor to exclude the others from using that property.

In the case of P.T Munchikkanna Reddy v. Revamma (2007), the Court aimed to create a distinction between the intention to possess and the intention to dispossess. However, it was criticized by many as the intention to possess any property would naturally mean the intention to prevent others from possessing it, i.e., the intention to dispossess would also be present. Hence, both are correlated to each other.

Essentials to prove adverse possession

Immovable property

The property which has been possessed unlawfully by the person must be immovable in nature such as a house or a piece of land, etc. However, the doctrine of adverse possession doesn’t pertain to any movable property.

Actual and exclusive possession

The person claiming adverse possession must have its actual possession i.e., their physical presence is mandatory to claim adverse possession. If the person is not physically present, then he/she won’t be able to claim the defence of adverse possession. Entry or trespass into the property and further using that property is necessary for adverse possession. Further, this possession shall also be exclusive on the part of the tenant and to the exclusion of the landlord.

Illustration: A person X has built a hut and grown a few trees on the land of Y. He starts living in that hut without any interruption. Then it is going to be a trespass into the land but at the same time if no action is taken by the owner, then the person could claim adverse possession of the land after 12 years and could not be removed from that land because he had actual possession of the owner’s land.

Uninterrupted possession

The possession by the person must be uninterrupted and continuous. In cases where they have possessed the property but not in a continuous manner or the possession has been interrupted by the owner of that property, they will not be able to claim adverse possession.

Possession for a definite period

The possession should be continuous and that too for a definite period which is 12 years in the case of the property held by a private individual and 30 years in the case where the adverse possession is relating to a government-owned property.

In the case of Ravindra Kaur Grewal v. Manjeet Kaur (2019), it had been held by the Court that the person who has the possession of any immovable property for more than 12 years has the right to acquire its ownership.

Hostility towards the owner

The property possessed by the person should be hostile towards the owner. They should possess and use the property just like the owner and the original owner of the property should be aware of the same. The possessor shall use the property in complete disagreement or the opposition of the owner. Further, even the period of adverse possession begins from the time when the owner gets the knowledge of the unlawful possession on the part of the tenant.

In the case of Brijesh Kumar and Anr v. Shardabai (Dead) by Legal Representatives and Ors (2019), the Court explicitly mentioned that to constitute the adverse possession there must be an assertion of a hostile possession in denial of the title of the true owner. The onus would be on the respondent to prove the nature of the possession.

Peaceful and notorious possession

The property shall be possessed by the person peacefully. They should not coerce or threaten the owner to possess that piece of property. In such a situation, it won’t fall within the purview of adverse possession.

In the case of Shri Uttam Chand v. (D) Through LRS v Nathu Ram (D) Through LRS and Ors (2020), it was held by the Court that the defendant or the person claiming the adverse possession of the property would need to prove that the possession was continuous and peaceful i.e., nec vi, nec clam, nec precario.

These are some of the important essentials for claiming adverse possession.

Effect of adverse possession claim in declaratory suits

A declaratory suit refers to any civil suit filed before the court for the purpose of determining the rights of any individual over any given property or any assets. Any individual who by the ownership of the land is entitled to use it could file a declaration suit against the person who has been unlawfully owning or possessing the property. When the person fails to file a suit for the recovery of the possessed land within the limitation period, he/she loses the right to recover it after the limitation period. Since that property can’t be left ownerless, the concept of adverse possession comes up.

The effect of claiming adverse possession is that even when the original owner ideally has the title over their land, their claim towards the ownership and their right over the land gets extinguished through adverse possession. As a result, they also lose their right to file a suit before the court of law regarding the same. The pleading before the court for the title (by owner) and adverse possession (by possessor) are not consistent with each other and unless the title is surrendered, the period of adverse possession won’t be in effect. Hence, when any person has possessed the private property for 12 years or the Government property for 30 years in an uninterrupted manner, the original owner of the property loses his/her right to file a declaratory suit for recovering the possession.

How to prove adverse possession

The burden of proving the adverse possession lies upon the person who is claiming such a defence under the Limitation Act of 1963. To prove the adverse Possession, they would need to prove the following things before the court of law:

The date from which the property was under their adverse possession, from which the 12 years are going to be calculated.
They are also required to prove the date from which the adverse possession of the property came to the knowledge of the owner. They also need to specify the date from which the possession of property came to the knowledge of immediate neighbours.
They are required to prove that the possession of the property was peaceful. It should not be possessed by coercing the owner and should be in opposition to what the owner expects.
The person making a claim also needs to prove beyond a reasonable doubt before the court that the property owner, despite having the knowledge of the possession, didn’t take any action against the possessor.
They also need to ensure at the same time that the exceptions to this rule aren’t applicable in their given case at hand.
They are further also required to prove that the possession of the property was continuous before the Court without any interruptions by the owner of the property or any other person.

These are some of the aspects that the person in possession of the property would be required to prove before the Court to claim the defence of adverse possession.

When can adverse possession not be claimed

There are certain exceptions in the doctrine of adverse possession under which the possessor of the property can’t claim it.

No ulterior motive

In order to claim adverse possession, the person is required to show their intention to possess the property (animus possidendi) in an exclusive manner. Further, when the landlord and the tenant enjoy a fiduciary relationship among them that is built on some trust or reliance on each other, such possession won’t constitute adverse possession.

Permissive possession

When the tenant or the person concerned was allowed/permitted to possess the property by the landlord, then in that situation it won’t fall within the purview of adverse possession. Only when the Landlord decides to terminate the permissive possession of the tenant but the tenant doesn’t vacate the property, legal action could be taken against them. They might also need to pay compensation for their wrongful or unlawful possession of the land. It is only when they wrongfully possess this property for more than 12 years that they could claim adverse possession.

Lack of valid claimant

In a situation where the person is possessing a property over which nobody is claiming their ownership, there is no requirement of proving adverse possession. For example, if a given piece of land doesn’t have any lawful owner who could recover it from the person who’s adversely possessing it, the right over that land can’t be claimed through adverse possession.

Difference between adverse possession and homesteading

Adverse possession as stated in the previous sections refers to the legal doctrine which means that if an individual possesses somebody else’s property for a period of 12 years or more will acquire ownership if no action is taken by the owner despite having complete knowledge about it. Hence in this situation, the land is under the ownership of an individual i.e., there is a legal owner of the land.

On the other hand, homesteading is also a bit similar to adverse possession. In the case of homesteading, the ownership of the property is either with the Government or doesn’t have any legal owner at all. In such a situation, the first person who starts using the property or possessing the same becomes the lawful owner of that land. In other words, when a given piece of land is not owned by anyone, the first person claiming it becomes the lawful owner. Secondly, the Government can also allocate such land to any person.

The primary difference between both is that adverse possession could take place when any person already owns any land subjected to unlawful possession by the tenant or any trespasser, whereas in the case of homesteading the land is possessed by the person when it is not under the ownership of any person.

In the case of adverse possession, the ownership is transferred to the unlawful possessor owing to the neglect of the original owner of the property. In the situation of homesteading, the ownership is given to the person owing who uses the land for the first time. In the colloquial (informal) terms, adverse possession is the formalization of the squatter’s rights existing since ancient times. On the other hand, homesteading focuses on the formalization of the traditional Homestead Principle which states that any person can obtain the ownership of any resource found in nature such as land or forest by using it or possessing it to do something useful. Yet both of these aims to focus on acquiring ownership through possession of the land.

Hence, both the legal concepts are very important to determine the ownership of the land for any individual who is possessing it either by lawful or unlawful means.

Case laws related to the doctrine of adverse possession

Perry v. Clissold (1907)

This particular case was one of the first cases concerning adverse possession in which the final decision had been passed by the Privy Council. The Privy Council held in this given case that if any person is possessing the property in a notorious and peaceful manner that is under the ownership of any other person and they fail to come forward and assert their rightful ownership against that property, their right will get extinguished and the title would be transferred to the possessor. Though this decision was not binding on the courts after independence, the judicial opinion was reasserted by the Court in the case of Nair Service Society Ltd v KC Alexander (1966).

Kshitish Chandra Bose v. Commissioner of Ranchi (1981)

In this case, the three-judge bench of the Supreme Court reversed the decision of the High Court. The Court explicitly stated in this case that the property must be possessed by the person in an open manner without any intention of concealing the same from the owner. In such a situation even when the real owner doesn’t have the knowledge about the possession, it will not become less adverse. Even when the person possessing the property doesn’t know the real owner, it won’t make the possession less adverse.

Thakur Kishan Singh (Dead) v. Arvind Kumar (1994)

The Court, in this case, laid down a very important exception to the doctrine of adverse possession. It was stated that if the person is possessing the property with the due permission of the owner, it won’t amount to adverse possession. In other words, the permissive possession can’t lead to adverse possession which means that when an individual has been lawfully permitted to use a given piece of property then the possession of that property won’t be considered adverse possession.

Hemaji Waghaji v. Bhikhabhai Khengarbhai (2008)

In this given case, the Supreme Court highly criticized adverse possession as being highly irrational and unfair to the owner of the property. The possessor of the property who carried out an illegal task and was completely dishonest would reap the benefit of adverse possession leaving the owner helpless. Hence, the Court asked to review the provisions regarding the adverse possession and to bring about some changes to achieve a balance between its merits and demerits.

State of Haryana v. Mukesh Kumar and Ors (2011)

In this case, the Court laid down that for adverse possession to take place, the person must possess the property in an uninterrupted and uncontested manner for a definite period of time which is going to be adverse to the owner of the property. The demand of the Court even in this case was the same, that is to bring about certain changes in the law of adverse possession so that it’s favourable to both the parties.

Nanjegowda @ Gowda (D) By Legal Representatives and Anr v. Ramegowda (2017)

In this case, an appeal had been made before the Supreme Court against the decision of the High Court. The case was regarding the adverse possession of the agricultural land that was a part of the ancestral property of the family. The Supreme Court in this case clearly stated there could be no adverse possession of any family or ancestral property through a hostility among the members over the land. Hence, this doctrine doesn’t apply to a family-owned property. The Court further held that entering into the land of the Plaintiff by the Defendants amounted to criminal trespass and the documents which they produced didn’t relate to the suit land. Yet, even in the situation of criminal trespass, one could claim adverse possession despite trespass being a criminal offence.

Mallikarjunaiah v. Nanjaiah (2019)

In this given case, the court declared that just the continuous possession of the property like the true owner won’t constitute adverse possession. The possession has to be open, hostile and exclusive of any other individual. This possession and the claim for the ownership of the property should also come to the knowledge of the original owner of the property to constitute adverse possession.

Can the state claim adverse possession over citizens’ property

It has been observed above that an individual can claim adverse possession over others’ land. This happens when they openly and notoriously possess that land without any interruption for a minimum period of 12 years. This period of limitation in the case of Government/State property is 30 years.

The state, however, cannot trespass into the private land of any citizen of the country and claim adverse possession of it. This would essentially be an encroachment into the land of citizens which won’t be justified. In other words, if any public official or Governmental institution has been possessing any private individual’s property unlawfully for any given period of time, they still can’t claim adverse possession. The reason behind it is that every democratic country has to follow the principle of the ‘Rule of Law’.

Further, the Right to Property though now no longer a Fundamental Right is still a constitutional right that can’t be violated unless through a procedure established by law. It would be a gross injustice to the citizens as their lands would be taken away from them in an unlawful manner by the state. The primary duty of the state is to ensure the welfare of all. For ensuring the people’s welfare, this doctrine doesn’t apply to the state. Hence, except for the procedure established by law, the state can’t deprive the citizens of their land by claiming adverse possession.

Can a tenant claim adverse possession

A tenant under certain circumstances can claim adverse possession before any given court of law. When the rent or the lease agreement that had been entered into between the tenant and the landlord has expired or has been revoked by the landlord, the tenant is expected to vacate the property within a stipulated time period as stated in the agreement. However, if they still keep on using that property despite the knowledge of the landlord, they can claim adverse possession after 12 years. In such a situation, after 12 years what would otherwise have constituted trespass or unlawful possession of the property would become the owned property of the tenant by claiming adverse possession. However, if after the termination of the agreement, the tenant while possessing the property keeps paying the rent to the landlord for it, he can’t claim adverse possession in such a situation. Further, if the landlord fails to take any legal action within the limitation period of 12 years, he would lose his right over the ownership of the land.

Hence a tenant can certainly claim adverse possession over the property if the lease agreement has become invalid and he/she still possesses the property for a period of more than 12 years.

Conclusion

The doctrine of adverse possession over the years has undergone several changes. Yet, it still could put the possessor of the land at an unfair advantage over the owner. They would lose their right even when it is visible that the person was unlawfully possessing the land. This doctrine as even stated by the court is highly unfair and illogical in the current times as the person who should be held liable as a trespasser is given the right to hold that property. There might be several reasons for which a person might not be able to take any action that also won’t fall within the purview of exceptions that are to be considered. Further, the rule laid down by the Court that even when the possession is visible to the general public but the owner doesn’t have the knowledge could amount to adverse possession is also disproportionate and disregards the owner’s rights.

On the other hand, there are certain reasons for which adverse possession may prove to be important. The rationale behind this concept is to facilitate the benefit of society by using the land that has been left idle by the owner. Further, the law favours those who are active and not dormant. Since, in the situation of adverse possession, the owners fail to enforce their rights and are ignorant of the fact regarding the unlawful possession of their land for a period as long as 12 years, they shouldn’t be provided with any remedy under the laws in force. Another reason is that even when a person unlawfully possesses the property for a long time without any warning being given by the owner during the entire time, they develop a certain trust that they won’t be stopped from using the property after a certain period of time. They have certain expectations which shouldn’t be violated.

From both its merits and demerits, it can be concluded that there is a need for changing the existing laws in a manner that is favourable to both the owner and the possessor. There are certain ambiguities as stated above regarding the owner having complete knowledge which is required to be considered. Therefore, only when all these gaps are addressed to facilitate the lawful possession of the land and at the same time to protect the rights of the possessor after the exhaustion of the limitation period, could it be held that the legal provisions governing adverse possession are effective.

Frequently Asked Questions (FAQs)

1. What is adverse possession?

Adverse possession is a legal concept that states that if an individual possesses somebody else’s property for a given period will acquire the ownership if no action is taken by the owner despite having complete knowledge about it.

2. What is the Act governing adverse possession in India?

The Limitation Act, 1963 consists of the various provisions dealing with the adverse possession of immovable property in India.

3. What is the limitation period for adverse possession?

The limitation period to claim adverse possession by any person has to be 12 years of possession for private property and 30 years for Government-owned property.

4. What are the essentials of adverse possession?

A. Immovable property,

B. Actual possession,

C. Hostile possession,

D. Peaceful and notorious possession,

E. Continuous/ uninterrupted possession,

F. Possession for a definite period.

5. How can a person file a suit for adverse possession?

The person claiming the adverse possession must present these details:

(a) on what date he came into possession of the property,

(b) the nature of possession,

(d) tenure of possession and

(e) dispossession of the true owner.

References

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