What is the legal position of adverse possession in India?

Adverse possession

We live in a society where everything is governed and is in order. Laws are there in our society so that we can stay disciplined and if any injustice happens to us we can seek relief from the court of law. Adverse possession is a reminder for those who are the owner of the property to be aware of their interest in the property.

The doctrine of adverse possession is applied when the original owner of the immovable property leaves his property unattended for a specific period of time. This specific period of time comes under the Limitation Act, 1963. This Act sets the bar within which a person can claim his/her right over the property. It is mostly based on the assumption that the original owner of the property was not aware of his right over the immovable property. 

What do you understand by adverse possession?

Adverse possession is a term that is used in our legal system when someone acquires ownership of movable or immovable property by continuous use of it. This means that the real owner of the property can be transferred to anyone who uses the land without the knowledge of the owner and have the intention to acquire it.

What is the time limit under which adverse possession can be claimed?

The doctrine ofadverse possession is defined under article 65 of the Limitation Act which specifies the time period of 12 years up to which a claim of title over the immovable property is applicable.  But the count of 12 years starts when the possession of the defendant becomes adverse to the plaintiff. For instance, A who is the owner of the land gives his property for maintenance to B, and after 12 years if he comes back to reclaim the property, the court will not entertain his suit in his favor.

The Supreme Court of India observed in Karnataka Board of Wakt vs. Government of India[i] case that, “in the eye of the law, an owner would be deemed to be in possession of a property as long there is no intrusion.”  Thus, under section 27 and section 65 of the Limitation Act, the right of the original owner of the land extinguishes if he does not interfere within the specified time limit.

However, the time limit differs when the property is a private property, then the suit againstadverse property can be filed within 12 years under Article 65 of schedule 1 and when property is owned by government then under Article 112 of schedule 1 of the Limitation Act the limit of filing suit against adverse property is within 30 years.

What are the essentials for claiming adverse possession?

A person who is claiming to be in adverse possession of the land, he needs to prove in the court of law certain essentials[ii]:

  • There must be immovable or movable property.
  • The nature of possession must be visible, hostile, and in continuity without any intrusion for the period specified under the Limitation Act.
  • Adverse possession cannot be claimed for a short period of time under Article 65 of the Limitation Act.
  • The intention of possession of the land must be accompanied by the intention of owning the right of the ownership by such possession. In Bhimrao Dnyanoba Patil Vs State of Maharashtra[iii], 2003, the court held that, unless enjoyment of the property is accompanied by adverse animus, mere possession for a long period even over a statutory period, would not be sufficient to mature the title to the property by adverse possession.
  • When a person comes and captures a land for a specific period of time he is taking away the ownership from the rightful owner. Thus there should be dispossession of ownership by adverse possession.

However, dispossession of the true owner will not take place when the owner of the land or premise permits someone to stay on the land for how long they want, out of charity or other reasons. For instance, when the owner of a premise allows his servant to stay in a cottage without paying any rent than in this case servant cannot claim his title over the land as the owner himself allows him to stay as long he is providing his service to him.

The other scenario is when land is not in use and someone who is not the owner of the land tries to claim his right of ownership without having been in physical occupier of the land. For instance, A person is claiming over the property of person B, but he was not physically occupying it, so in this case, he cannot claim it because A was not physically staying there. In these two scenarios, the dispossession of the true owner cannot be done.

What is the current view of the Supreme Court regarding adverse property?

In a recent judgment where the Supreme Court gave judgment in favor of an old widow woman whose property has been seized by the Himachal Pradesh government for construction of a road. The government took the plea of adverse possession and even the government failed to pay compensation for 52 years.

The bench judged by Indu Malhotra pronounced that, “A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens[iv]”.

By this recent judgment, it was made clear that although the doctrine of adverse possession is given in favor of those who occupy the land for a specific period of time which is prescribed under the Limitation Act, 1963. But there is an exception to this doctrine which cannot be misused for one’s personal motive or gain. This law, on the other hand, justifies itself for those who took care of the land for a long period of time and by adverse possession they can gain ownership over the land. 

Conclusion

We live in a society where from time immemorial a large group of people has encroached for their livelihood. For their survival, these people have acquired land and built their houses for themselves and stayed there for a long time period with the intention of gaining ownership of that land.

By abolishing this doctrine those who have taken care of this land would become homeless as there is a case who has acquired land and settled without the knowledge of the real owners. This doctrine acknowledges the right of both owner and occupier by limiting the time period under the Limitation Act, 1963. There is also another argument that the property or who is not physically present in the country i.e., NRIs their property could be easily occupied by relatives or others.

There are so many other instances where the occupier has taken the plea of adverse possession but with every judgment, the definition of this doctrine has changed. The intention of gaining title over the land is the main element of this doctrine.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference

[i]Karnataka Board OfWakfvs Government Of India &Ors on 16 April, 2004.

[ii]http://mja.gov.in/Site/Upload/GR/Title%20NO.46(As%20Per%20Workshop%20List%20title%20no46%20pdf).pdf.

[iii]BhimraoDnyanobaPatil&Ors. vs State Of Maharashtra &Ors. AIR 2002 Bom 80, 2003 (3) BomCR 150, (2003) 1 BOMLR 322.

[iv]https://www.thehindu.com/news/national/private-property-is-a-human-right-says-sc/article30551819.ece

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I samridhi srivastava is pursuing B.A.LL.b from Lloyd Law college. My inclination is towards writing legal articles and doing legal research work and is also looking forward to have a career in legal journalism. I am also interested in writing shayari; reading novels of great personality like Swami Vivekanand, my experience with truth, APJ Abdul Kamal's sir autobiography etc.; reading news and listening music in my free time.