The existence of some legal concepts will leave you surprised and the doctrine of adverse possession is one of them. Did you know that you can claim ownership of a property after a certain time frame without even buying it? Yes, the DOCTRINE OF ADVERSE POSSESSION is a legal principle that grants ownership to someone who resides on or is in possession of another person’s land. After a certain period of time, the trespasser can acquire ownership of the property from the legal owner of the property.
But is it that easy? What all are the requirements to own a property through adverse possession in India? After how long you can claim adverse possession of a property? What are the exceptions to claiming the doctrine of adverse possession? This article aims at answering all your questions related to adverse possession in India.
What Is Adverse Possession?
Adverse possession in India is a legal principle that allows a person to gain ownership of a property by possessing it openly and continuously for a specified period of time, usually 12 years, despite the fact that another person may legally own the property. It can be claimed by a person who has lived on a property for more than 12 years with the permission/consent of the legal owner.
In addition to that, the property should be immovable in nature. The doctrine of adverse possession aims to provide certainty and stability in property transactions.
The doctrine of adverse possession was introduced Privy Council in Perry v/s Clissold in India in 1907 for the very first time and the term was first established by the Supreme Court in “Amarendra Pratap Singh v. Tej Bahadur Prajapati”.
When the trespasser continues to live on a property for over 12 years and the legal owner is aware of the same and fails to take any action during those years, the legal owner will lose the ownership of that property and the occupant will become the legal owner of that property. The possession needs to be actual, open, notorious, exclusive, hostile, continuous and uninterrupted. The occupant has to prove all these elements to claim ownership of the property through adverse possession. These elements are derived from different case laws related to adverse possession.
The doctrine of adverse possession is based on the legal maxim ‘vigilantibus non-dormientibus subvenit lex’ which means that the law favours only the active citizens and not those who are dormant or are not concerned about their rights.
Laws Related To Adverse Possession In India
Though there are no specific laws related to adverse possession, a few provisions under the Limitations Act govern the doctrine of adverse possession. Here are the legal provisions under the Limitation Act which can be taken into account in cases related to such kind of property possession.
As per Section 27 of the Limitations Act, 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. It mentions the time limit to file a suit by the property owner to be 12 years. If the owner fails to do so, he/she cannot take any action against the occupant.
Article 64 and Article 65 of the Limitations Act also support the doctrine of adverse possession and say that the burden to prove the dispossession of the property for 12 years lies on the tenant. Simultaneously, the onus to prove the adverse possession for 13 years falls on the landlord. It emphasizes that any person who has taken possession of property that belongs to another person for 12 years and is the real owner of that property does not file the suit for the recovery of possession, it will be considered that property in possession belongs to that person who is claiming the adverse possession.
Legal Requirements To Own A Property Through Adverse Possession In India
Immovable Property
The property which has been unlawfully occupied should be immovable in nature which can be a house or land. The doctrine of adverse possession is not applicable to movable property.
Actual Possession
It should be an actual possession such as the construction of a house, fencing of the property, grazing cattle on the land, laying of a shed or some structure, farming and harvesting of crops on the land, planting and cutting trees, etc for the entire period of the statutory period of limitation. The physical presence of the claimant is mandatory for adverse possession. Entry or trespass into the property and use of that property is necessary for adverse possession.
Exclusive Possession
The claimant should have the property’s exclusive possession which means the sole physical occupancy. He/she must hold the property as his/her own. Physical improvements like construction or fencing on the land will also come under exclusive possession.
Open And Notorious Possession
The possessor must possess the property openly before the world. All neighbours as well as the legal owner should be aware of the possession. Secret possession doesn’t entitle the claimant to any legal right over the property. Clearing, fencing, cultivating or introducing changes on the land show open and notorious possession. The owner must be aware of the adverse use of the property and it should also be known to all the people in the neighborhood.
Uninterrupted Possession
The most important element to prove the adverse possession is by proving that the property has been possessed for a continuous and uninterrupted period. If the possession is interrupted by the owner, the occupant cannot claim adverse possession.
Mere possession of the property without an intention to possess the suit land adversely to the title of the plaintiff and to the latter’s knowledge cannot result in the acquisition of title by the defendant to the trespassed suit land. The possession should be uninterrupted throughout the statute of limitation.
Hostile Possession Toward Owner
In order to prove adverse possession, it needs to be hostile toward the owner. The trespasser should possess and use the property as the legal owner of the property. There should be a strong disagreement with the owner. The time for adverse possession begins as soon as the legal owner gets aware of the possession.
The claimant enters and resides on the property under colour of title which appears as a good and valid title to a property, but in reality, does not provide the full, legally recognized title.
Peaceful Possession
The possession should be done peacefully. The possessor should not coerce or threaten the legal owner to keep possession of the property.
Statute Of Limitation
In India, the individual should be possessed for a minimum of 12 years in case of private property and 30 years for government property.
Can A Tenant Claim Adverse Possession In India?
Generally, a tenant cannot claim the adverse possession of a property when there has been a lease or rental agreement between the landlord and tenant. But if the lease expires or the landlord has defaulted on any information in the agreement, the tenant can claim ownership after 12 years of possession. However, if the tenant has paid rent through any medium after the termination of the agreement, he/she cannot claim adverse possession.
How To Prove Adverse Possession In India?
Judiciary always tries to ensure that every person is heard and justice is served. Therefore, it is not easy to claim and prove adverse possession in India. There are certain specific conditions that need to be proved before the court and the burden to prove them is on the person who claims such defence under the Limitation Act, 1963. The following are the things to prove in court to claim adverse possession of the property.
- The 12 years will begin from the date when adverse possession starts.
- The occupant must prove the date on which the legal owner of the property came to know about the adverse possession and the date on which the immediate neighbours came to know about the same.
- The person needs to prove that the possession was peaceful and has not coerced or threatened the legal owner.
- The occupant also needs to prove that despite having knowledge about adverse possession, the owner didn’t take any action.
- He/she should also prove that the exceptions to the doctrine of adverse possession are not applicable in the instant case.
- The person also has to prove that the possession was not interrupted by the owner or any other person throughout the statutory period.
Exceptions To Doctrine Of Adverse Possession
- If the owner is a minor.
- If the owner is mentally unwell.
- If the owner serves in the armed forces.
Under What Conditions An Adverse Possession Cannot Be Claimed?
In addition to the abovementioned conditions and requirements, there are certain other conditions where adverse possession cannot be claimed which are as follows.
Permissive Possession
In the cases where the landlord has permitted the person to live on the property, the doctrine of adverse application will not be applicable. When the legal owner will decide to terminate such permissive possession, the tenant/possessor should vacate the property. Failing to vacate the property will invite legal action and the person need to pay compensation for the unlawful possession.
Intention To Possess (Animus Possidendi)
In order to prove the adverse possession of a property, the person also needs to show the intention to possess (animus possidendi) in an exclusive manner. If the tenant and landlord enjoy a fiduciary relationship built on trust and reliance, the doctrine of adverse possession is not applicable.
Absence Of Legally Valid Claimant
In conditions where an individual has occupied land which is not claimed by anyone, there is no need to prove the adverse possession.
Can Adverse Possession Be Claimed By Family Members?
When it comes to family members, possession of property by a blood relative cannot be adverse to the other family members and therefore the doctrine of adverse possession is not applicable in such scenarios. Supreme Court in Darshan Singh v. Gujjar Singh, (2002) 2 SCC had noted that it is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers.
Conclusion
So, this is everything you need to know about adverse possession in India. With the passage of time, there have been several developments through various case laws related to adverse possession. Possession of someone’s property and then claiming ownership rights is not an easy thing. This happens in very rare cases and every element is considered cautiously to serve justice. The abovementioned are the legal requirements to claim adverse possession in India. Improper knowledge and unlawful behaviour to possess someone’s property might lead you to face some serious legal action and you also have to pay compensation.
This article is written by Varsha. You can reach out to the author via email at bnbvarsha@gmail.com.
