Adverse Possession: The Legalized Land Theft


Posted On : February 25, 2022
Adverse Possession: The Legalized Land Theft
Adverse Possession Law in India: Find out what are the 5 elements of adverse possession and how does it affect the ownership of land. The Limitation Act 1963 through a specific provision upholds the possession over rightful ownership as explained here.
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Imagine that you have a house in one state while you are residing in another state for work purposes. Hence, to take care of that house, you get a tenant. Initially, the tenant duly paid the rent but stopped due to some financial crisis which you approved of. Years went by and you rest assured that in the absence of any rent, at least your property is being taken care of. After more than a decade when you ask those tenants to vacate the house since you have to sell the property, they inform you that you are no longer the rightful owner of that house. You may be shocked by this story and expecting something positive, but it is a fact. This is what the ‘doctrine of adverse possession’ conveys.


Ownership of Land

Land can be understood as a fixed or immovable real estate. It is a valuable property, and thus, gives title and ownership rights as well. Ownership of land grants certain rights like possession, exclusion of others, right of disposition, etc. As per land law, a person should possess necessary documents like contract of sale or conveyance deed, power of attorney, title deed, etc. in order to prove rightful ownership of land.

 


Can I claim ownership of land I have used for 20 years in India?

As per the doctrine of adverse possession under Limitation Act, the right to property ends after completion of 12 years of such adverse possession. Hence, in case of private property used and maintained for more than 12 years and there is no claim from the real owner, the person having possession of such property can claim the ownership of land. In case it is a property owned by the Government, the duration extends to 30 years.

 


Adverse Possession Law in India

The Limitation Act, 1963 provides for limitation periods for various kinds of suits. It declared a limit in terms of days, months and years as to how long one can wait for his rights to be realized in the court of law, after the expiry of which, the court holds the right to deny hearing the matter. Coming to the law of adverse possession, it is rooted in the British reign and after independence, the same has been approved by the Supreme Court in case of Nair Service Society[1]. There is no direct mention of the provision under Limitation Act 1963. However, Section 27 read with Article 65 provides for adverse possession under Limitation Act. As per law, if a person is in possession of any immovable property for more than 12 years, the title can be perfected through adverse possession.

 


What are the 5 elements of adverse possession?

While deciding a case of adverse possession[2], hon’ble Justice S. Rajendra Babu explained the five factors to be considered to establish title in case of adverse possession as reiterated below:

1.     Date on which possession of the said property commenced;

2.     Nature of possession - it has to be adverse or hostile possession to support the claim[3];

3.     Knowledge of such adverse possession to the other party/ owner of land;

4.     Duration of such possession - a period of at least 12 years should have passed;

5.     Open and undisturbed possession.

 

Adverse Possession vs Permissive Possession

When there is hostile possession of a property by a trespasser against the real owner, it is adverse possession. If someone is in possession of the said property with the permission of the person holding ownership of land (eg. agreement of tenancy), it is permissive possession and does not give any title to such possessor.


Hon’ble Supreme Court on Adverse Possession

The stand of courts before the case of Ravinder Kaur Grewal[4], was that the adverse possessor of a property does not have the right to claim declaration of title in his favor. However, if the real owner brings a suit in the court of law to oust such an adverse possessor[5], the defense of adverse possession can be claimed. But through the above mentioned ruling, the Supreme Court on adverse possession 2019 has allowed Article 65 of Limitation Act 1963 to be used as a sword by the plaintiff and a shield by the defendant. Thus, the adverse possessor can also approach a court of law to declare his ownership of land through adverse possession.

 

Find Property Lawyers in Kolkata for adverse possession disputes.


Adverse Possession: Preventive Measures for Original Owner

  • The provision of adverse possession nullifies the ownership of land by mere inaction on part of the real owner. At times, the courts have also suggested the lawmakers to have a fresh look on the provisions of land law around adverse possession. However, the law of the land still persists and it is the duty of landowners to save their property from adverse possession law in India. With the knowledge of ‘what are the 5 elements of adverse possession?’, one should make sure the following:
  • If you have a relationship of tenant and landlord, do not allow such tenancy for longer periods;
  • In case of tenancy, if there is a breach of contract, the owner should ask the tenant to vacate the premises immediately;
  • Always have written record of use of your land by someone else;
  • Make sure that possession of someone else on your property should not go uninterrupted for 12 years.

 

Conclusion

When there is a question of ‘Can I claim ownership of land I have used for 20 years in India?’, there are certain emotions attached to that land which the law respects. This emotional attachment is the root cause of the doctrine of adverse possession law in India. Although the mode of possession may be hostile or adverse, the law approves of it. Hence, where there is a provision that affects your rightful ownership of land, all you need to be aware of against an adverse possession under Limitation Act 1963 is your own inaction.


[1] Nair Service Society Ltd vs Rev. Father K.C. Alexander and others, AIR 1968 SC 1165

[2] Karnataka Board Of Wakf vs Government Of India & Ors, Appeal (civil) 16899 of 1996

[3] T. Anjanappa And Ors vs Somalingappa And Anr, Appeal (civil) 3594 of 2006

[4] Ravinder Kaur Grewal vs Manjit Kaur, SLP (CIVIL) No. 7764 OF 2014

[5] Gurdwara Sahib Sannauli vs State Of Punjab & Ors, RSA No.3528 of 2005

 

Written By:
Ridhi Khurana

Ridhi Khurana

Gurgaon

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