Doctrine of Adverse Possession
Meaning of Adverse Possession
Adverse Possession is the process of acquisition of title by the person in possession of the property despite not being the owner of it. It is based upon the principle that the person who is in continuous possession of property without the permission of the owner but with the knowledge of the same, he or she is entitled to adverse possession of such property.
Table of Contents
- Meaning of Adverse Possession
- Evolution of the concept of adverse possession
- Elements for claiming adverse possession
- Actual possession
- Open and notorious
- Exclusive possession
- Continuous and uninterrupted
- Hostile possession
- Actual possession laws governing the adverse possession
- Judicial stand
- Conclusion
The evolution of the concept of adverse possession can be traced back to the “Code of Hammurabi’. There were 282 rules in the said code wherein rule 30 of the code provides that if a man left his house or garden and someone else took possession of his house or garden and used it for 3 years, then in such a case rightful owner will not be entitled to take possession of it and the person who took possession continues to use it. At present the concept of Adverse Possession is given much broader meaning by the Indian Judiciary
ELEMENTS FOR CLAIMING ADVERSE POSSESSION
ACTUAL POSSESSION– Adverse possession must be actual with intent to keep it for oneself. For example: construction of a house, planting and cutting of trees, farming and harvesting crops constitute actual possession.
OPEN AND NOTORIOUS – An adverse possessor must not possess the land secretly. The real owner must have actual knowledge regarding the adverse possession of his or her property. Possession must be observable by others and not be secretly hidden.
EXCLUSIVE POSSESSION– An Adverse possessor must have exclusive possession of the property. Exclusive possession means sole physical occupancy. The claimant must hold the property as his or her own. Casual use of the property does not constitute exclusive possession. For example: development of a land, construction of fences, building of a house contemplates exclusive possession.
CONTINIOUS AND UNINTERRUPTED- In order to claim for adverse possession, claimant must possess the land continuously and without interruption during the entire statutory period, i.e, 12 years .
HOSTILE POSSESSION– Possession must be hostile from its commencement and must continue throughout the statutory period. Hostile possession means the possessor must occupy the land against the right of the rightful owner without any dispute during the whole statutory period.
LAWS GOVERNING THE ADVERSE POSSESSION
Section 27 of limitation Act, 1963: This section provides for the extinguishment of right to property. It says when the period for instituting a suit for possession of any property is gone then the right to such property is also gone or extinguished. It means that if the rightful owner does not institute the suit for the recovery of the possession within the prescribed period, then in such a case the right of the rightful owner will be extinguished and the person in wrongful possession obtains the title over it. The principle of section 27 applies only in those cases where the limitation act does not apply. The principle laid down under this section is an exception to the general rule that the law of limitation only bars the remedy but does not extinguish the right itself. It is both procedural as well as substantial.
Article 65 of limitation Act, 1963: This article provides the limitation period within which suit for possession of immovable property can be instituted. It prescribe a period of 12 years within which aggrieved person may file a suit for recovery of possession of immovable property or any interest therein based on title. The limitation period shall begin from the date when possession of the defendant become adverse to the plaintiff.
Article 112 of limitation act, 1963: It prescribe a limitation period of 30 years for the institution of the suit by or on behalf of the central or state government including the government of Jammu Kashmir except a suit before the Supreme Court in the exercise of its original Jurisdiction.
JUDICIAL STAND
Supreme Court in the Case titled ‘Amarendra Pratap Singh V Tej Bahadur Prajapati ,(2004) 10SCC 65, held that that a person, though having no right to enter into the possession of the property of someone else, continues to be in possession for the period of 12 years, then he is entitled to acquire title by adverse possession not on his own but on account of default or inaction by the real owner.
In Gurudwara Sahib V Gram Panchayat Village Sirthala and Another (2014)1 SCC 669, the Supreme Court held that plea of adverse possession can be used only as a shield and not as a sword. The question which came into consideration before the court was ‘ Whether Article 65 of the Limitation Act, 1963 only enables the person to set up a plea of adverse possession as a defence and such a plea cannot be used by the plaintiff as a sword . By answering to the question Supreme Court held that the plea of adverse possession can only be used by the defendant as a shield and plaintiff is not entitled to any plea.
In the case titled as Ravinder Kaur Grewal V Manjit Kaur, (2019)8 SCC 729, three judges bench of the Supreme Court by overruling the judgement of Gurudwara Sahib V Gram Panchayat Village Sirthala and Another, held that plea of adverse possession can also be taken by the plaintiff and the suit for possession of immovable property or any interest therein based on title provided under Article 65 of Limitation Act, 1963 also includes title acquired by plaintiff by way of adverse possession. In this case Supreme Court clarifies that plea of adverse possession can be used both as a shield as well as sword.
CONCLUSION
The concept of Adverse Possession has been criticized by many on the basis that it is a pure infringement of the rights of the landowner. It does not even provide protection to the NRIs who are not physically present in the country and their property could easily be occupied by relatives or others. The law of Adverse Possession is thus clearly in a state of judicial flux and requires decisive legislation action to settle the position. Considering the principles of adverse possession, the law needs to be retained or amended. However, a period of 12 years is insufficient and does not conform to international statutes or article 112 of the Limitation Act, 1963 itself. Thus the limitation may be increased from 12 years to 30 years or so.