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Shivani Jain

Shivani Jain | Updated: May 27, 2020 | Category: Civil Law

Adverse Possession in India: A Conceptual Analysis

The concept of Adverse Possession deals with the process of acquisition of legal title by the individual in possession of the said property regardless of not being the owner. As per this concept, if the possessor or the person having possession (of the property in question), stays in the property for a continuous period of 12 years with the knowledge that he is not the owner of the property and also without the interference or permission of the owner, the title of the said property vests in the possessor.

What is an Adverse Possession?

Further, the term Adverse Possession was defined by the Apex court in the case, “Amarendra Pratap Singh v. Tej Bahadur Prajapati.” It is a situation when the property’s actual owner loses his ownership rights due to delay on his part to remove a trespasser or tortfeasor within a prescribed duration from the property.

After the expiry of the period prescribed for eviction, the real or the true owner is barred from commencing any legal proceeding to repossess his property. Moreover, after the expiry of twelve the concerned trespasser acquires the legal title over that property by hostile or adverse possession.

What is the Statutory Period prescribed for Adverse Possession?

The statutory period or the time prescribed of limitation for the possession of an immovable property is stipulated under Section 65 of Limitation Act, 1963. The said period is of 12 years in the case of a private property. However, a period of 30 years is specified for the Government or State or Public property. The calculation of the specified period starts from the date when the trespasser or the tortfeasor adversely possesses the property of the actual owner.

It shall be noteworthy to take into consideration that in some cases the calculation of the statutory period is suspended or deferred. Such a situation includes any pending litigation between the owner and possessor over the same property, or where the actual owner is either a minor or of unsound mind, or where the real owner is serving in the armed services.

What are the prerequisites for acquiring legal title over a property by way of Adverse/ Wrongful Possession?

The listed below are the key requirements or prerequisites for acquiring legal title over a property by way of Adverse Possession:

  1. Continuity in Adverse Possession: The possession of the property used by the trespasser or the claimant must be uninterrupted, continuous, and unbroken for the whole statutory period of limitation.
  2. Hostile Possession: The possessor must have occupied the property in question for the full statutory period of limitation. The claimant should have full knowledge that he or she does not possess any legal right over that property. Further, the intention of the trespasser or the possessor must be to acquire legal title over the property by adverse possession.
  3. Actual Possession: The adverse possession over here means the actual possession, i.e., either of the following listed for whole of the statutory period:
    1. Construction of a House,
    2. Planting and Cutting Trees,
    3. Fencing the Property,
    4. Laying of a Shed,
    5. Grazing Cattle on the Land,
    6. Farming and Harvesting crops on the land
  4. Exclusive Possession: The claimant should be in an exclusive physical possession of the property against the right, title, and legal claim, of the true owner for the statutory limitation period. Further, the cases like the construction of a house, development of the land, construction of boundary walls are some instances of ‘exclusive possession.’ Furthermore, the property shall not be in pseudo possession.

What is the Presumption as to Possession?

Usually, after the expiry of the statutory period of limitation, there will not be any cause of action. This means that the trespasser or the adverse possessor acquires the title, right, and interest of the real owner of the property. Moreover, the adverse possessor becomes qualified to deal with the said property in the manner he or she wants or desires.

The Hon’ble Supreme Court in the case, “Karnataka Board of Wakf v. Government of India and ors,” explained in detail about the characteristics of Adverse Possession. Moreover, the apex court also clarified that the onus of proving facts or the establishing title is on the claimant, i.e., the adverse possessor.  

However, the Apex Court in the case, “State of Haryana v. Mukesh Kumar and ors,” decided the case in favor of the property’s actual owner and also stated that the law relating to adverse possession was archaic and must be utterly looked into. It further said that in the case of adverse possession, a trespasser who is guilty was able to acquire the legal title over the property. Hence, this court found the legal system recompensing and rewarding an illegal act baffling.

What are the Facts to Prove for claiming Adverse Possession?

The Plea of Adverse Possession is a blend of law and fact. Hence, it is not a pure question of law. As a result, any person claiming adverse possession must show the following listed before the court:

  1. The Date of Possession
  2. The Possession was recognized to Public
  3. The Nature of the Possession
  4. The Continuity of the Possession
  5. The Duration of the Possession

Hence, any person pleading adverse possession and is trying to overthrow the rights of a true owner, is required to establish all facts essential to his adverse possession.

Who are the Exceptions to the Doctrine of Adverse Possession?

The listed below are some cases where the claim of adverse possession will not be acknowledged by the court:

  1. Co-owners: The occupancy by one co-owner shall be presumed to be in favour of all the co-owners. Hence, in order to establish ouster or ejection, a proof of something more than the mere exclusive receipt of income and possession is required.
  2. Co-sharers: Whenever a possession is under a prearrangement between the co-sharers, then no question concerning adverse or wrongful possession will arise.
  3. Shebait: It is no possible for a Shebait to claim adverse or wrongful possession, as an individual cannot demand hostile title against the deity.
  4. Permissive Occupant: The property concerned being used for a long duration by the permissive occupant is barely adequate to alter the nature of permissive possession into an adverse or wrongful possession
  5. Interference with Possession: It is a well-recognized law that mere interference by the rightful owner regarding the possession would not be sufficient to denote that he or she has been evicted or dispossessed except such interference results in ejection from any part of the land.
  6. Trespasser: Mere illegal possession by a trespasser will not result in an adverse or wrongful possession unless the same is accompanied by the assertion of hostile title.

How can one Protect his Property from Wrongful Possession?

  1. If an individual wants to protect his property from any illegal or wrongful possession, he needs to hire an experienced property lawyer who deals with property matters. The foremost thing advised by a property advocate is never to leave the property abandoned and vacated for a long duration.
  2. Further, it shall be pertinent to take into consideration that NRIs are particularly easy targets for those people who make it an occupation to inhabit land unlawfully and acquire adverse or wrongful or illegal possession of the property.
  3. Furthermore, it is essential and significant to timely change the property’s caretakers. The reason for the same is that no individual gets to occupy or live in the property for a considerable period.

What is the Judicial Flux related to Adverse Possession in India?

The law concerning Adverse/ Wrongful/ Unlawful Possession being a just and equitable principle has always been a developing and progressing concept. However, the said growth and progression of it has resulted in a position of Judicial Flux.

The Apex court in the cases named, “P.T. Munichikkanna Reddy and others v. Revamma and others,” and “State of Haryana v. Mukesh Kumar and others,” made suggestions to the lawmakers that there is an urgent need to amend the law concerning adverse possession. Moreover, the Hon’ble Supreme Court stated that the main purpose for the amendment should be that a trespasser or tortfeasor must not be permitted to capitalize or gain from his fault.

Further, in the case named, “Hemaji Wagaji Jat v. Bhikhabhai Khengarbhai Harijan and others,” the law legalizing the possession of a tortfeasor or trespasser, and forcing the real owner to drop his possession because of his inaction and delay in getting back possession within the statutory period of limitation was questioned. For which the Hon’ble Supreme Court sent a recommendation to the Ministry of Law and Justice to utterly contemplate and make appropriate changes in the law concerning illegal or adverse or wrongful possession.

After that, the Government then asked the Law Commission to draft a report on the said issue on an urgent basis. As a result, the Law Commission formulated a Discussion Document cum Questionnaire on the said matter. The reason for drafting the questionnaire was to examine all the Pros and Cons relating to the law of adverse possession. Moreover, the Law Commission also considered the Positives and Negatives concerning its effect on the society if the same is abolished.

Furthermore, the Apex Court lessened the ambit of Adverse/ Wrongful Possession in the case, “Dagadabai (dead) by Lrs v. Abbas alias Gulab Rustum Pinjari.” In this case, the Hon’ble Supreme Court held that the claimant or defendant or the adverse possessor pleading possession is firstly required to acknowledge the ownership or the title of the real owner.

Also, the Hon’ble Supreme Court circumscribed the purview of the notion of adverse or illegal possession in the case named, “Mallikarjunaiah V. Nanjaiah.”  In this case, the Apex Court declared that the plea of wrongful or illegal possession can only be used as a defense. Hence, the fact of continuous possession on the land, for a longer duration of time will not cloak the defendant or the claimant with the right to hold up a defense of adverse possession. Lastly, the claim of adverse possession must be raised only for a specific limit of land.

However, recently the ambit of the law of adverse possession was broadened by the Hon’ble Supreme Court in the case, “Ravinder Kaur Grewal v. Manjit Kaur.” In this case, the Apex Court held that a plaintiff has a right to file a suit for claiming adverse or wrongful possession. It also stated that the said right is not only heritable but also transmissible. Moreover, the Apex Court has also allowed for tacking or appending of adverse possession by two or more individuals on acknowledging the said right to be a transmissible and heritable one. But it shall be noteworthy to note that the same is concerning only individual properties.

Hence, by the said judgment, the Apex Court has now amplified and broadened the playing arena from what was earlier being used as an Armor to being considered as a weapon as well. The same is beneficial for the possessor or the claimant claiming legal title by way of Adverse Possession.

Conclusion

The law concerning adverse or wrongful possession is therefore evidently in a status of Judicial Flux and urgently needs conclusive legislative action to settle the position. Moreover, time and again our Indian governments have tried to eradicate this unpretentious but then again yet deep-seated model of the law concerning possession, even if there was no legal title to defend but the same has been incapable of doing it till day.

At present, the Indian government is making efforts to entirely get rid of the concept of Adverse Possession. For which the government by way of its Union Budget 2020 to 2021, urged all the State Governments to embrace the Model Agriculture Land Leasing Act, 2016. The intent of the Central Government is, therefore, crystal clear from the whys and wherefores given by them for formulating this Act.

Further, the period of twelve years is inadequate and also does not obey with Article 112 of the Limitation Act, 1963, or International Statues itself. Therefore, the statutory period of limitation must be increased from twelve years to thirty years or so.

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Shivani Jain

Shivani Jain

Shivani has completed her B com LLB (Hons) and has the experience of writing various research papers during her college time. Earlier she was working as an Associate in a Delhi based Law Firm, but her interest in writing made her pursue Legal Content Writing as a career. Her core area of interest is in writing about various legal enactments, tax and finance.


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