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.
Adverse Possession has been defined by Mozley and Whiteley’s law dictionary as “where one person is in possession of property under any title, and the another person claims to be the rightful owner of the property under a different title, the possession of the former is said to be an ‘adverse possession’ with reference to the latter. A rightful owner neglecting to assert his claim within a given period (12 or 30 years in India as per the Limitation Act, 1963) is henceforth barred of his right to it.
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.
Article 64 and Article 65 read with Section 27 of the Limitation Act, 1963 provides the limitation period of 12 years to claim the possession back from adverse possessor. After the expiry of these 12 years, the adverse possessor gets the right to acquire the title of the property and owner loses his title. By the virtue of Article 112 of the Act, the government gets the period of 30 years to claim the possession back from adverse possessor.
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 simple words if the owner or rightful possessor of the property who got dispossessed by the adverse possessor either in legal or illegal manner fails to take an action against him even after having knowledge of his continuous, exclusive, obvious, hostile or impermissible possession for 12 years or 30 years (in case of govt.’s property but not the property for public use), the adverse possessor acquires title and their title get extinguished.