In this article, we will talk about the doctrine of adverse possession. It happens sometimes that we give our property to someone else so that he can use that property for a specific time but afterwards, we didn’t talk about that given possession nor did we ask that person to remove his possession over the property.
But after the latest judgment of the Supreme Court of India on adverse possession, it has become difficult for the legal owner of the property to take back the possession of his property if he has given the property without any written contract or agreement.
Table of Contents
What is adverse possession?
According to the doctrine of adverse possession, if a person holds the possession of property owned by someone else for more than 12 years, he will become the owner of that property.
The theory behind this rule is that the law and equity don’t help a person who sleeps over his right.
In our Indian laws, there is no special provision for the doctrine of adverse possession.
The Supreme Court of India has given its latest judgment on adverse possession in 2019 in the case of Indra Kaur Grewal Vs Manjeet Kaur. The apex court has cleared all the doubts related to adverse possession and given its judgment that if a person has possession of the immovable property for more than 12 years, he can take ownership of that property.
Before this judgment, the plea of adverse possession was taken by the defendant only. But under the judgment of the Supreme Court, it stated that the person as a plaintiff can also file the suit for the ownership of the property in case of adverse possession.
The doctrine of adverse possession was firstly used in India in 1907 and it was based on three principles
- The title of the property should not be in doubt for many days
- The person who is taking care of the immovable property should be considered as the owner of that property, not the person who has bought the property and now leave the property as it is.
- A person who has bought the property and now leaves that property without doing anything should be considered that he has waived off his right on that property.
If we talk about the legal aspects of the doctrine of adverse possession, there is no legal law which is describing the doctrine of adverse possession. But under the limitation act, 1963, there are provisions which are dealing with the doctrine of adverse possession.
According to article 65 of the limitation act, if one person has taken possession of another person’s property, the aggrieved person can file the suit for recovery of possession of that immovable property within 12 years from the date of possession.
Section 27 of the limitation act 1963 provides that if the agreed party failed to institute the suit for possession of the immovable property within 12 years, after the expiry of 12 years, the aggrieved party will no longer be able to file the suit for possession of that property. His right to such property shall be disabled.
Article 65 and 27 of the limitation act 1963, give importance to the doctrine of adverse possession. 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.
In a case where a person is claiming the adverse possession on government property, the limitation period to claim the adverse possession will increase up to 30 years.
Essentials for claiming adverse possession
The person who is claiming the adverse possession must fulfil the following conditions:
The possessor of the property must have actual possession of the property. If a person merely claims the property by just paying its taxes, it does constitute adverse possession. Entry on the property is an essential thing to prove the adverse possession. Whether the entry is legal or illegal, it will not affect the case.
Any trespasser of the property can also claim for adverse possession but for that, he must be using that property. His physical act must show that he is exercising his rights over that property as a real owner of the property.
For example– a person is planting trees and crops on another person’s property. In this example, a trespasser is using the property as he is the real owner of that property.
Intention to keep it so solely for oneself
The intention to take that property for oneself should be present in the case of adverse possession. Any person who is not thinking about taking that property for own self, will not constitute adverse possession.
Open and notorious to the use of property
Secretly occupying a property and after that claiming adverse possession on that property will not be entertained under the Court of law. In simple words, if a person is taking possession of property belonging to another person, that possession must be so notorious that it is known to all the neighbours of that property.
Use of the property
A person cannot claim adverse possession if he is not using the property. The construction of houses, buildings and fencing of the land is evidence of adverse possession.
Possession must be hostile to the owner
The Possession of a property must be hostile to the real owner of that property. This means the possessor of the property should occupy the land by opposing the real owner. He must enjoy the rights of the property as a true owner. The real owner of the property must be aware of the possession taken by a trespasser. The possession will be counted from the date when the real owner came to know about the possession.
Possession should be uninterrupted
The possession taken by the trespasser of property must be continuous and uninterrupted. A person can claim adverse possession only if the real owner does not interrupt him for the possession made by him in the property.
The possession taken by the trespasser of the property must be peaceful. Any possession which is taken by a person after threatening the real owner of the property does not come under adverse possession.
Continue for a specific period
The possession of the property should be continuous for a specific period. The limitation act provides the limitation period for adverse possession which is 12 years for private property and 30 years for government property.
How can a person claim his adverse possession?
The burden of proof to prove the adverse possession lies on the person who is taking the plea of adverse possession.
- That person has to specify the exact date on which he started the adverse possession on the property.
- He has to tell the exact date on which the real owner of that property came to know about the possession.
- The person has to prove that he is continuously possessing that property for more than 12 years.
- The person who is taking the plea of adverse possession must satisfy the court that the real owner of the property, being knowing about the possession, didn’t take any action against the possession.
- The possessor of the property must prove that his possession on the property is notorious and known to the public and neighbours.
If the person who is taking the plea of adverse possession fails to prove all these points, his plea for adverse possession will be dismissed and the court will give the decision in the favor of the real owner of the property. The court may also pass the order to stop the possession of that property.
Steps to Save your property from adverse possession
A trespasser can claim adverse possession on the property after 12 years. There are many steps that you can follow to stop another person from taking possession of your property:
Control over property
Firstly, when a person buys a property and applies for the mutation of the land, the owner must take care of his property. He should have full control over that property.
File a suit
In a situation where the owner of the property failed to control the property and somebody took possession of that property or if a person illegally took possession of your property, you should immediately file the FIR against that illegal possession.
You can also file litigation under section 6 of the specific relief Act. Section 6 of the specific relief Act deals in the cases where a trespasser of the property illegally removes the possession of the real owner from that property. It is not necessary that only the real owner of the property can take action under section 6 of the specific relief Act. Any person who has possession of the property, for example, a person who has a power of attorney given by the real owner of the property, any licensee of the property, bailee under the contract of bailment etc. can also file the suit under section 6 of the specific relief Act.
Some points should be kept in mind while filing the suit under section 6 of the specific relief Act:
- You cannot file a suit against the government under section 6 of the specific relief Act. It means if the government remove your possession from the property, you cannot claim it under section 6 of the specific relief Act. It doesn’t mean that you can’t take back your possession from the government. Here, we are just talking about section 6 of the specific relief Act. You can file civil litigation against the government after giving the legal notice to the government authority.
- After the expiry of 60 days from the day of serving the legal notice, you can file civil litigation under the court of law against the government or any other public officer.
- The second thing is that the suit under section 6 of the specific relief Act must be instituted within six months from the date when your possession was removed from the property. After the expiry of six months, the person has to file a simple civil suit for the recovery of possession of that property.
Exceptions to the doctrine of adverse possession
Some judgements of the courts provide some conditions in which a person cannot take the plea of adverse possession. These conditions are following:
The owner is minor
If the real owner of the property is minor, the person who has possession of that property cannot claim adverse possession on the property.
A person is a lunatic or unsound mind
The real owner of the property is a person of unsound mind and he does not have the capacity to contract.
Owner serving in the armed force
If the owner of the property is serving in the armed forces of the country.
In case of permissive possession
If the real owner of the property has permitted the person to take possession of that property, that possession of the property cannot be converted to adverse possession.
In the case of Thakur Kishan Singh vs Arvind Kumar, The Supreme Court clearly said that the permissive Possession cannot be converted to adverse possession. To become a possession adverse, there must be evidence which shows that the person has taken the possession without the permission of the owner of that property. Also, the possession is known to the real owner. Mere possession on the property for several years will not be considered as adverse possession if the owner has already permitted it with free consent.
If the property is given for part performance
A person cannot take the plea of adverse possession if the real owner of the property has given the possession of land for part performance in pursuance of an agreement. In simple words, if there is an agreement between the real owner and the processor of the property, the possessor of the property cannot take the plea of adverse possession.
Possession is not known to the real owner
The real owner of the property should be aware of the fact that the possession of the property has been taken by another person. If the owner of the property came to know about the session taken by another person he can file the FIR in the police station against that possession. It is essential to prove in the court of law at the time of taking the plea of adverse possession that the possession was known to the real owner.
Possession is taken by threatening the owner
A person who is taking the plea of adverse possession has threatened the real owner of the property at the time of taking the possession of property cannot claim for adverse possession.
FAQ related to adverse possession
Who can apply for adverse possession?
Any person who has taken possession of a property owned by someone else for more than 12 years without any interruption can apply for adverse possession.
What is the limitation period of adverse possession?
A person can apply for adverse possession after 12 years in the case of private property and after 30 years in the case of government property.
The doctrine of adverse possession is helpful for the people who have been taking care of the property for more than 12 years whereas it is behaving rudely with the people who have invested their money to buy that property.
The Supreme Court of India gave different judgements for the doctrine of adverse possession. It is borrowed from the British laws and this law needs many changes so that no person should feel unjust.