The process of Adverse Possession provides the title of the property to the person who is in continuous possession of the property for 12 years without the permission despite not being the owner. In short, if a person occupies the property of another person whether through legal or illegal mode, and remains in that property continuously for 12 years or more without the permission of the owner while this fact is known to the owner of property, but the owner does not take any action to take the possession back from him, the occupant gets the title of that property and becomes the owner himself after the expiry of 12 years.
Essentials of the Adverse Possession:
- There has to be an actual possession or actual physical entry by the person who intends to acts like an owner regarding the property.
- The possession must be continuous for 12 years or more without the interference.
- The possession must be impermissible by the owner or hostile i.e. occupancy must be against the right of the owner without his consent.
- The fact of impermissible possession by the occupant or his intention to act as an owner must be known by the owner for the 12 years or more.
- The occupant must have sole or exclusive possession of the property, however in case of joint occupancy; all occupants can claim adverse possession against owner.
- The Acquisition must be made obvious to the entire world by open occupancy. For Ex. Making fence, doing construction or improving property openly and this can be seen by the general public without permission of the owner.
Supreme Court on Adverse Possession:
- Supreme Court in M. Karim vs. Mst. Bibi Sakina on 14 February, 1964 held that Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.
- Supreme Court in Nair Service Society Ltd vs. Rev. Father K. C. Alexander & Ors on 12 February, 1968 reaffirmed the principle held in Perry v. Clissold [1907] A.C. 73, and provided “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.”
- Supreme Court in Amrendra Pratap Singh vs. Tej Bahadur Prajapati & Ors on 21 November, 2003 described the process of Adverse Possession and held that “The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.”
- Supreme Court in Dagadabai (Dead) By Lrs vs Abbas @ Gulab Rustum Pinjari on 18 April, 2017 held that “It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.
It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.”
- In Mallikarjunaiah vs. Nanjaiah on 26 April, 2019, the Supreme Court while describing essentials for acquiring title by adverse possession held that “Mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner”.
- In Ravinder Kaur Grewal vs. Manjit Kaur on 7 August, 2019, Supreme Court held 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, 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 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. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.
When we consider the law of adverse possession as has developed vis-à-vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.”
- Recently, the Honorable Supreme Court in the case of Vidya Devi v State of Himachal Pradesh & Ors on 8th January 2020 held that the plea of adverse possession cannot be taken up by the state while justifying its forcible expropriation of private property without following due procedures of law.
Limitation Act, 1963 on Adverse Possession:
- Section 27 of the Act states Extinguishment of right to property. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
- Article 64 of the Act states limited period of 12 years for claiming possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed. The period of limitation of 12 years begins from the date of dispossession. For ex. In case a person, who is not the owner of the property but has the rightful possession of the property, is dispossessed from the property by a person who is not the owner, he can claim the possession back by filing a suit within 12 years of that dispossession. If no suit is being filed by that person or owner to get the possession back, the occupant who continuously possessed the property during 12 years acquires title to the property by the process of adverse possession.
- Article 65 of the Act states the limited period of 12 years to claim the possession of immovable property or any interest therein based on title. The period of limitation of 12 years starts from the date when the possession of the defendant becomes adverse to the plaintiff. For ex. In case a person, who is not the owner or permissive possessor of the property, occupies the property to the adverse of the owner, the owner can claim the possession back by filing a suit within 12 years of that adverse possession. If no action is being taken on part of the owner while knowing the fact of adverse possession and the occupant continues to occupy possession for 12 years or more, the occupant acquires the title to the property and owner loses the right to claim possession of the property.
- However, By virtue of Article 112 of the Act, the government has the period of 30 years to claim the possession back from the adverse possessor; otherwise the adverse possessor gets the title after 30 years of continuous occupancy.
Adverse Possession by Tenant
In case of possession by tenant under a lease agreement, license agreement or implied lease agreement under Article 116 of the Transfer of Property Act, 1882 (when the owner accepts rent even after termination of tenancy), the possession is permissive and not adverse. However the tenant gets the chance of claiming title by adverse possession if the owner or tenant breached any term of the contract or did any action which lead to the cancellation of tenancy but the tenant continues to remain in the exclusive possession of the property even after that for 12 years or more while being hostile and open to the adverse of the owner.
So, in short we can say that the Supreme Court and the legislature, both has tried to maintain the balance between the interest of the owner and the adverse possessor regarding the property to avoid any discrepancy or injustice to the right of both sides.
Also Read: Adverse Possession