What Is Adverse Possession?

What Is Adverse Possession?

What Is Adverse Possession?

Property ownership is certainly desired by all of us, but this coveted position comes with a lot of complexities. Though it is often believed that the law is tilted in favour of the 'haves', many legislation prevalent in our country prove otherwise. One such law is the Limitation Act.


The law

Consider this: Ramesh Kumar has a house in Delhi which he has given to his brother, Suresh Kumar, to stay in. After 12 years, Suresh Kumar will have the right to sell this property and, in case of a dispute with his brother, the law will grant the possession to Suresh. This is called an adverse possession.

While occupying does not confer ownership in normal course, the occupant can claim property title in case of an adverse possession. In such cases, it is presumed that the possession was permissible and started legally, unless proved otherwise. The essential requirement of possession under adverse possession is that the possession should not have been obtained by force or through unauthorised means.


The Limitation Act

The Limitation Act, 1963, is a key piece of legislation, elaborating on adverse possession. The Act prescribes a period – 12 years for private properties and 30 years for government-owned ones – within which you have to stake claim on your property. Any delay may lead to disputes in the future.

The principle on which the Limitation Act is based is that 'limitation extinguishes the remedy, but not the right'. This means that in case of an adverse possession, the original owner may have the title over the property but he loses the right to claim such right through a court of law.


The time period

For this law to apply, the time period is calculated from the date the claimant is in possession of the property of the owner. The possession should be continuous, unbroken and uninterrupted for the entire duration. The claimant must have the sole possession of the property. However, the limitation period does not include the one during which there is pending litigation between the owner and the claimant. However, there are also certain exceptions to this rule. If the owner of the property is a minor, or of unsound mind, or serving in the armed forces, the property occupant cannot claim adverse possession.

Some essential requirements to be proved for claiming under adverse possession are:

  • Hostile possession: The intention of the possessor of the property must be to acquire rights through means of adverse possession. These rights are acquired at the expense of the rights of the original owner. There must be an express or implied denial of the owner's title by the possessor. Constructing a boundary wall around the property can be means of asserting this possession.
  • Public knowledge:The public at large must be aware about the possession of the claimant. This condition is put in place so that the actual owner has adequate means to know that someone is in possession of his property and gets reasonable time to act. However, one is not bound to inform the original owner about it.
  • Actual possession:There must be actual possession throughout the period of limitation. Physical acts like harvesting crops, repairing the building, planting trees, erection of shed, etc, could be means through which actual possession can be determined. The possessor could not claim possession over the property without being physically possessing it.
  • Continuity: The possessor must be in peaceful, unbroken, uninterrupted and continuous possession of the property. Any break in the possession will extinguish his rights.
  • Exclusivity: The possessor must be in sole possession of the property. The possession cannot be shared by different entities or persons for the claimed time duration.


The cases

There have been landmark judgments on adverse possession.

The case of Karnataka Board of Wakf versus the Government of India and others in 2004 clarified the features of adverse possession. It states that the onus is on the claimant to establish the necessary facts and evidence to claim property title.

A person claiming adverse possession has to show the following before the court:

  1. The date of possession
  2. The nature of the possession
  3. The possession was known to public
  4. The duration of the possession
  5. The continuity of the possession

In the State of Haryana versus Mukesh Kumar & others case in 2010, the Supreme Court decided in favour of the actual owner of the property and said that the law of adverse possession was archaic and should be seriously looked into. It added that in adverse possession, a trespasser who is actually guilty was able to gain legal title over the property. The court found the legal system rewarding an illegal act baffling.


Change we need

There is a need to revamp this archaic law because it goes against equity. It punishes the property owners and rewards the trespassers instead of doing the opposite. However, till the change is done, property owners must be aware and keep a vigil over their property. Timely action should be taken against any illegal act of trespassing.

Last Updated: Tue May 26 2020

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@@Wed May 13 2020 19:59:51