This article is written by Sushant Kandwal, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.com.
Under the doctrine of adverse possession, a person who is not holding the title to the land but holding the possession of the land owned by someone else for a considerable period may acquire a valid title to it, provided that the adverse owner is in possession for a sufficient period as per the Limitations Act. In India, any person in possession of a property for a period of more than 12 continuous years may claim unfavourable possession of the property.
The idea of Adverse Possession was emanated from England around 1275 and created with a view to allowing a person to claim the right of “seisin” from his ancestors. Many thought that it was difficult to enforce the original law on “seisin” and, around 1623, a statute of limitation had been enacted in a place which allowed an individual in possession of the property for twenty years or more to gain title to that property. The early English policy was intended to prevent legal battles about property rights that were time-consuming and expensive. The doctrine was also established to avoid the wasting of land by requiring owners to control their property or suffer the loss of title. Subsequently, the definition of adverse possession was introduced in the United States.
The doctrine of Adverse Possession was critical to the American during their period where number of property disputes related to Possession of Immovable property by means of Adverse Possession was surging. Therefore, some states has reduced the limitation period for the acquisition of land by means of Adverse Possession to five years, whereas in some states it remained as long as forty years. Since, the doctrine of Adverse Possession was against the property owned by the government, hence, the US government has amended the practice of owning the property by means of Adverse Possession.
During the colonial era, prior to the promulgation of the Bill of Rights, the State also seized the property from private citizens without compensation. Initially, undeveloped land was the most common form of property purchased by the Government as it pursued the construction of a public road. Under the colonial regime, it was assumed that the advantages of the road would often outweigh the value of unimproved land in a newly opened region. The theory of Adverse Possession emerged at a time when lands were vast, particularly in the United States of America, and the evidence was scarce in order to silence the title of the possessor and to prevent fanciful arguments from erupting. The principle of Adverse Possession occurs in order to correct probable or existing deficiencies in the real estate titles by imposing a restriction statute on any conflicts over ownership and possession. A landowner should be protected in title to his land; otherwise, long-lost heirs of any previous owner, owner or landowner of centuries past would have a legal right to it.
After our country’s independence, we have seen registered title documents and more proper, if not ideal, title entries in government records. The circumstance has changed, and the law calls for reform. Law is not a dry matter, it is not static, it is complex. Law is dynamic in the sense that it is continually evolving due to changes in culture, such as new demands, specific traditions and outdated concepts. It shall alter by enacting new laws or by amending or replacing existing ones. It also changes by the creation of new precedents and the overturning of an existing precedent by the courts. The subject of adverse possession has also been re-defined by the needs of the society as well as by operation of law.
Elements establishing adverse possession
- CONTINUITY IN ADVERSE POSSESSION: The Possession and occupancy of the property by the trespasser/claimant shall be continuous, uninterrupted and unbroken for the entire statutory limitation duration.
- HOSTILE POSSESSION: Possession must be aggressive, often referred to as adverse, if the title is to mature from adverse possession. Hostile Possession means that the Claimant/ occupier is occupying the land despite knowing that he/she doesn’t hold any legal title to occupy or possess the said property. Possession must be aggressive, often referred to as adverse, if the title is to mature from adverse possession. Hostile Possession means that the Claimant/ occupier is occupying the land despite knowing that he/she doesn’t hold any legal title to occupy or possess the said property. There will be no conflict or conflict about the title as long as the claimant continues to claim the land and hold it against the interests of the owner and the world as a whole. Possession must be aggressive from the start and must continue throughout the limitation period. One form of hostile occupation arises when the claimant enters and stays on the land under the colour of the title. The colour of the title is the appearance of the title as a result of an act which appears, by its language, to give the applicant a valid title, but does not, in fact, appear to be defective. Unless, for example, a person has a legitimate disability at the time of the execution of an act, the grantee-claimer would not obtain the actual title. However, the grantee-claimer has the colour of the title because it would appear to anyone reading the document that the good title had been conveyed. If for the full statutory period, the claimant owns the land in the manner specified by statute, his or her colour of the title shall become the real title as a result of adverse possession.
- ACTUAL POSSESSION: Actual possession: an adverse possession must be actual possession, such as the construction of a house, the erection of a shed or some structure, the fencing of a property, the grazing of cattle on the land, the farming and harvesting of crops on the land, the planting and cutting of trees, etc. for the whole statutory limitation period.
- EXCLUSIVE POSSESSION: During the statutory limitation period, the claimant must be in the sole physical possession of the property against the legitimate right, assertion, and title of the rightful owner or other claimants. Land development, the building of a house, or the erection of boundary walls are examples of “exclusive ownership.” It must not be taken possession of or pseudo-possession.
Acts that do not constitute adverse possession
- PERMISSIVE POSSESSION: It cannot be converted into an adverse possession, particularly where possession is lawful from the outset unless other transparent actions have been committed by the occupant that will have the effect of denying the title of the true owner. The permissive character of possession can be inferred from the circumstances of the case, even without clear evidence. As soon as the plaintiff shows his intention that the permissive possession would cease, the permissive possessor would cease to enter the property and, if he does not do so, his continued presence would be incorrect and would make him liable to surrender possessions along with mesne profits.
- ABSENCE OF RIGHTFUL CLAIM: “In the case of Palaniyandi Malavarayan v. Dadamalali Vidayan, it was contended before Honorable Andhra Pradesh High Court about adverse possession by a trust that the right to the trusteeship of a temple cannot be acquired by adverse possession so long as there is no lawful trustee who could claim to recover the office from the person who claims to hold it adversely to him” .
- ABSENCE OF SUFFICIENT ANIMUS OR INTENTION: It is the intention to claim the exclusive title which makes possession adverse. Animus possidendi must be proved along with the manner of occupancy by the squatter which again varies from type to type. It is a well-known principle in the fiduciary relationship that the possession of the agent is the possession of the principle and therefore the existing relationship between the parties cannot be permitted to be as adverse.
- LAWS RELATED TO ADVERSE POSSESSION
Now, let us look at the law governing the concept of adverse possession and the trend in India. The Indian Limitation Act, 1963 deals with adverse possession and the same applies to Section 27, Article 64, 65, and 112 of the SCHEDULE.
- “Section 27 Extinguishment of right to property- For instituting any suit for the possession of any property, any person needs to filed the suit within a limitation period else his right to such property shall be relinquished.
- According to Article 64 of the Limitation Act, 1963 the limitation period is prescribed of 12 years for a claim based on the previous possession; not on the title. The date of dispossession will begin from the date when the Plaintiff has been dispossessed.
- “Article 65 of the Limitation Act, 1963 provides a time limit of 12 years for a suit for possession of immovable property or any other interest on the grounds of title and that term shall begin from the point at which the possession of the defendant becomes adverse to the Plaintiff.
- Art 112 prescribes a limitation time of 30 years for any suit brought by the Central Government or any State Government, including the Government of Jammu and Kashmir( except a suit brought before the supreme court in the exercise of its original jurisdiction), the limitation period shall begin from the date laid down in the same suit by a private person.
It is evident from the above provisions of the Limitation Act, 1963 that if the claim for possession is not filed within the prescribed limitation period, then the right of the owner based on title or possession shall be extinguished and the owner who has the possession of the immovable property shall become the owner by the right. It is also important to note that Section 27 of the 1963 Act is an exception to the general rule that limitation periods prohibit only the remedy but do not extinguish the term, which means that it is analogous to the rule of substantive law.
Supreme Court in Amarendra Pratap Singh v Tej Bahadur Prajapati held that if an unauthorized person is having the possession of an immovable property adverse to the owner for a period of 12 years then the unauthorized person acquired title on account of the default or inaction on part of the real owner.
Adverse possession as a shield
The assertion of ownership by Adverse possession can be made only by way of defence, if it is disposed of as a defendant in litigation against him. Even if the plaintiff is found to be in Adverse possession of the immovable property, it cannot seek a declaration or a judgement from the Court to the effect that such adverse possession has matured into ownership. Any claim of ownership can be obtained by the claimant on the grounds of an adverse possession.
In Gurdwara Sahib Vs Gram Panchayat Village Sirthala and another, (2014) 1 SCC 669, the Apex Court held that suit needs to be filed by a person on the basis of title within 12 years from the date of dispossession under Article 65 of the Limitation Act, and the time limit commences from the date when the possession of the immovable property becomes adverse to the Plaintiff. However, if adverse possession is in the knowledge of the true owner then a defense of plea to adverse possession is only available to the defendant who is in hostile, continuous, and open possession.
Supreme Court’s comments on adverse possession
In Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan((2009) 16 SCC 517), the Apex Court criticised the doctrine of Adverse Possession and maintained that the doctrine of Adverse possession is illogical, irrational and wholly disappropriate because it punish the actual owner for not taking any action within the limitation period. Whereas, it rewards the dishonest person who has illegally taken the possession of the property. Further, the Apex Court directed the Union of India to reconsider the doctrine.
Further in State of Haryana Vs. Mukesh Kumar 2011(10) SCC 404, the Hon’ble Supreme Court has made certain important observations and reiterated to have a fresh look at the law of adverse possession as made earlier in HemajiWaghaji’s case (supra) and the same are quoted here in below:
The Apex Court held that the doctrine of Adverse Possession is borrowed from British laws and recommended the parliament to consider abolishing or amend the law of Adverse Possession to provideprovides some relief to the owner for their inaction. Adverse Possession allows the tort committer to gain a legal title to the land where he is just a trespasser for 12 years. Furthermore, Apex Court recommended some suitable amendments in the Law of Adverse Possession to the Union of India, those are:
i) To extend the period of 30 to 50 years instead of 12 years.
ii) To pay market rates or some lesser amounts to the title-holder of the property.
A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.
Till such time, the law relating to adverse possession is either abolished or amended, we in India would continue to be governed by the provisions of the 1963 Act as quoted hereinabove and the judgments of the Hon’ble Supreme Court on the same issue.
- State Of Haryana vs Mukesh Kumar & Ors on 30 September, 2011 https://indiankanoon.org/docfragment/290532/?formInput=adverse%20possession
- Palaniyandi Malavarayan v/s Vadamalai Oodayan
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