The Case of Adverse Possession in India

 

Name – Siddhesh Bhosle 

College - Government College of Law, Mumbai. Year III - Three Year LL.B. Course.

INTRODUCTION

Adverse Possession was a system or practice in common law introduced by the British in India. The original purpose was to increase and improve land usage, thereby earning revenue for the Government exchequer. Adverse Possession means acquiring a property through unsolicited means. As the name suggests, it is a possessory title that is opposed to the original owner's proprietary, legal, or documentary title. In simple terms, if an occupant, especially an unauthorized occupant, continues to occupy a property for 12 years without any interruption from the owner, they acquire the status of the owner of that property. 

For possession to be adverse, it must be possession by such a person who does not acknowledge the other's rights but denies them. A person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed. It is also more aptly referred to as ‘hostile possession’ in modern parlance, in light of the views of the Supreme Court of India which are discussed further below.

It is, however, essential to note that permissive possession that is given by the original owner’s consent, say unto a servant or an agent does not amount to adverse possession. It is true even for tenants who came to property by an owner’s permission to some extent, but the Courts interpret every such appeal based on its merits in such a case; because the lawmakers who created the statute left some room to solve the matter; such that every possible human circumstance that may befall a person can be accounted for. Only then suitable is passed by the courts.

For example - If the original owner of property delivered possession but refused to execute the necessary documents for transfer even after taking valuable consideration or monies from another, that affected person who per se a tenant, as he came in possession through permission, cannot be without a remedy. It derives from one of the fundamental principles of law that for any legal wrong, a legal remedy must exist or must come into existence, as the case may be.

THE STATUS: ADVERSE POSSESSION IN LAW

The principle of adverse possession is governed and administered broadly under The Limitation Act, 1963 (36 of 1963) of India. Almost all of the rationale to be followed by the courts with regards to adverse possession are formulated through decisions of the judiciary in landmark cases of the Supreme Court. While interpreting the correct applicability of the statutes of the Act and how the doctrine of adverse possession operates, the Court in Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 held that:-   

“Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts the right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires a prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case a suit can be filed by a person whose right is sought to be defeated.”

“Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitations to sue and extinguishment of rights. There may be a case where a person who has perfected his title by virtue of adverse possession is sought to be ousted or has been dispossessed by a forceful entry by the owner or by some other person, his right to obtain possession can be resisted only when the person who is seeking to protect his possession, is able to show that he has also perfected his title by adverse possession for the requisite period against such a plaintiff.”

Therefore, the plea of adverse possession can be used - as a shield by the defendant and - as a sword by the plaintiff seeking a declaration of title based upon his previous possession, even if he is ousted by the former owner or persons claiming through him, or others. 

If rightful owner does not commence an action to take possession within the period of limitation, his rights are lost and person in possession acquires an absolute title. 

In Krishnamurthy S. Setlur v. O.V. Narasimha Setty, the honorable Court reaffirmed the same and went even further to uphold that ‘a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, the consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within the ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession.’

The law respects possession and Courts usually frown upon dispossession which is carried out perforce or not under the law. The statutory recognition of which in rule form can be seen under Section 6 of the Specific Relief Act, 1963 which provides a remedy to a person who is dispossessed without his consent from an immovable property otherwise than in due course of law and can bring a suit for seeking recovery of possession notwithstanding any other title that may be set up in such suit.

In addition, adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible. It extends to all the legal heirs of the possessor and persons claiming through him.

ESSENTIALS OF ADVERSE POSSESSION

In the view of jurists, to sustain a plea of adverse possession and establish a successful claim, the following are the essentials:-

The date on which the possession commenced.

That the possession was openly known to the public in general.

The nature of the possession- whether it was hostile or permissive.

If the possession was permissive, to begin with, when did it become hostile in nature and set up in opposition to the original/former owner.

The continuity of the possession, of peaceable nature in general except unto the former owner, who is known of the hostile nature of possession of another.

The duration of the negatory possession is of prime importance and that it was quiet, peaceable, and in denial of the title of the original owner.

EXCEPTIONS TO THE RULES OF ADVERSE POSSESSION

The general exceptions to the rule of adverse possession are few. They are as follows:-

If the owner is a minor.

If the owner is of unsound mind.

If the owner was/is on deputation while serving in the armed forces, or 

As far as the Government (Central or State) property is concerned, the period of limitation for any suit (except a suit before the Supreme Court) is 30 years and the starting point of limitation is the same as in the case of a suit by a private person (vide Article 112, Schedule I of Limitation Act).  Acquisition of easements by prescription is provided for by Section 25 of The Limitation Act.

 For all things said and done, the highest Court of the land has set out this much as certain - The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the law of limitation in Article 65 as 12 years. 

CONCLUSION

It is of utmost importance for owners to remain diligent and vigilant with regards to their property, as continuing neglect may amount to another person in occupation perfecting their title through adverse possession.

As in the other parts of the world - “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”- In India, the statement reads closest to “No one shall be deprived…  or as provided for by the laws in India, and by the general principles of international law.”

Therefore as an owner, one is best served in practice by following, “To be forewarned is forearmed.”