ADVERSE POSSESSION UNDER INDIAN LAWS
Authored By – Dev gupta
At the time of writing, the country is witnessing a surge in litigation related to the possession of a specific piece of land. Most of such cases arise during the redevelopment of structures, where a party who had originally built an illegal structure is now claiming a piece of the pie. Such factors lead on to become hurdles to the project due to which other legal tenants / occupiers are deprived of their legal right to happiness and property and are often trapped in a series of legal proceedings spanning years to come. To overcome such a nuisance, the time is high for us, the people to learn about the laws to know whether there stands a case of adverse possession.
MEANING AND ITS ESSENTIALS:
Adverse possession means the legal process whereby the non-owner occupant of a piece of land gains title and ownership of that land after a certain period of time. Following are the essentials of Adverse Possession as per the Indian Laws
- The Defendant must be in actual possession.
- The possession must be adequate in continuity, publicly and in some extent to show that it is adverse on the owner. The possession must be open, notorious, actual, exclusive and adverse.
- There must be an intention to hold the property.
- Possession cannot be adverse if its commencement can be referred to a lawful note.
- The possession does not become adverse to the plaintiff when there was no notice or knowledge, or circumstances that could have given notice or knowledge to the plaintiff.
- The possession is not adverse until the plaintiff is entitled to immediate possession.
- A wrongdoer gains title only to the land which is actually held by him. Thus if a party holds a specific piece of land on a bigger land, they do not automatically own the whole land.
MAXIM GOVERNING THE LAW: Adverse Possession and its requisites are governed by the Legal Maxim “ VIGILANTIBUS NON DORMIENTINUS JURA SUBVENIUNT” which means THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT THOSE WHO SLEEP OVER THEIR RIGHTS.
THE LIMITATION ACT, 1963: The timeframes and period of remedies for adverse possession is governed by the Limitation Act in India. Article 64 and Article 65 of the schedule read with Section 27 of the Limitation Act, 1963, any person in possession of private land for 12 years or government land for over 30 years can become the lawful owner of that land. The Limitation act does not directly provide for the acquisition of ownership by possession; but it provides for the obverse case, where the right to property may become extinguished by non-possession for a length of time. If an owner, whose land has been encroached upon, suffers his right to be barred by the law of limitation the practical effect is the extinction of his title in favour of the party in possession. There are varying degrees and timeframes with regards to adverse possession provided for in the Limitation Act, 1963. These deal with the spectrum of cases ranging from Suits relating to accounts, contracts, declarations, to decrees and instruments etc. all of the above are dealt with in THE SCHEDULE of the ACT.
HISTORY OF ADVERSE POSESSION: The concept of “title by adverse possession” dates back to the Hammurabi Code in 2000 BC. Its development continued through statutes of limitation in England, with the Property Limitation Act being a milestone. Like much of the other laws, in other Commonwealth Countries, the law of India was heavily influenced by the British Laws. The law of limitation was introduced in India through the “Act XIV of 1859” to which significant changes were enacted by The Limitation Act, 1963.
SUPREME COURT ON ADVERSE POSSESSION:
The Supreme Court of India Via its judgment in Government of Kerala & Anr v/s V. Joseph and others summarised the requisites of adverse possession as ““Party claiming adverse possession must prove that his possession must be ‘nec vi, nec clam, nec precario’ i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.” Some of the key points also put forward in the above case are as follows –
a. the burden of proof lies on the person claiming adverse possession
b. a mere long period of possession does not translate into the right of adverse possession.
c. a plea of possession must be pleaded with proper particulars, such as when the possession became adverse.
d. concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession.
In Karnataka Board of Wakf v/s Government of India, the Supreme Court observed as under “In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect the status of his title. But the position will be altered when another person takes possession of the property and asserts a right over it…” The Court further observed that a plea of adverse possession is not a question of law but one of fact and law blended.
CONCLUSION:
Time and again the Supreme Court of India has shed light to the fact that currently the Adverse Possession Laws in India are inadequate. The current laws are deemed to have many ambiguous elements and hence produce varying levels of interpretation. Currently, Adverse Possession in India is something that can be easily gotten away with. A person who rightfully owns a land upon some justifiable neglect be deprived of his right over the land due to another party claiming it to be theirs. India faces many instances where citizens are plunged into years of forestalled proceedings. Stalls are built on foot-paths or other easements, original blueprints of buildings have to be altered all due to the phenomena of adverse possession whereby even an illegal occupant has to be satisfied since he has occupied the said piece of land for the said many years.
