• Admin

ARTICLE ON ADVERSE POSSESSION

ABSTRACT

Adverse possession is a legal doctrine that allows a person who possess or resides on someone closed land for an extended period of trust to claim legal title to that land. If successful in proving Adverse possession , the claimant is not required to pay the owner for the land. The research article is a description about the Adverse possession . It includes the brief explaination about ownership, possession, title, adverse, illegal and wrongful possession. The legal provisions regarding adverse possession and its relevance in present time . The extent of advance possession from common law to Indian law . The cases with the landmark judgment of the Honorable Supreme Court on the topic and also mentioned . In the reasonable article, adverse possession a piece of its historical background position in India and facts and innovative ideas are added.

KEYWORDS:- Adverse possession, Title, Ownership, Possession


ADVERSE POSSESSION

· Possession- A person has possession of something if the person knows of its presence and has physical control of it, the law, possession is the control a person intentionally exercise towards a thing. In order to possess something a person must have intention to possess it .A person may in possession of something /some property (although possession does not always imply ownership).


· Adverse possession- The occupation of land to which another person has title with the intention of possessing it as one’s own. It is defined under section 65 of the Limitation Act, 1963.


Owner has different rights and so has the possessor. But , the owner has more set of rights and as compared to that of possessor. One person’s rights are other’s obligations. Law is vigilant and helps only those who are aware of their rights and not to those who are sleepy and completely unaware. The reasonable period of time after the cause of action arose is known as Limitation period.


· Cause of action- It is the reason or fact that enables a person to bring an action against another party.


· Limitation period- It is a time period or a duration that is fairly required to do anything which is convenient under the permitted circumstances .Limitation act provide time limit to sue any person. After lapse of the reasonable time, a person is not entitled to any legal remedy, he can’t take any action . The Limitation Act , 1963 is a key price of legislation , elaborating an adverse possession . The act preserve a period of 12yrs. For private property and 30 yrs. For govt. property, within which you have to claim your property . Any delay may lead to any dispute in the future. The principle on which the Limitation period is based on is “Limitation extinguishes the remedy but not the right”. It means , that in case of Adverse possession , the real owner may have the title over the property but we lacks the right to claim such title through a court law.


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


Some essentials requirements to be proved claiming under adverse possession –

§ Hostile possession –The intention of the possessor of the property must be acquire some rights through means of adverse possession . These rights are required at the expense of the original owner. These must be an express or implied denial of the owners’ title by the processor. Constructing a boundary wall around the property can mean of asserting the possession.


§ Actual possession –There must be actual possession throughout the period of limitation .Physical acts like Harvesting crops, preparing the building, planting trees or erection of shade etc. could be means through which actual possession over the property without having physical possession on it.

History of Adverse possession


The origin of the doctrine or concept of “Adverse possession” can’t be said with provision as even .The historians hold the view that it is surrounded by a ‘historical tag’. It was believed by the ancient Romans that a person who possessed land nurtured the spirit of the land and acquired a greater ‘ownership’ in the land than the title owner. Even today, there is a saying ‘ownership’ in the land than the title owner. Even today, there is a saying ‘possession is nine-truths of the law’ which had its origins in the concepts of Adverse possession.


The earliest codification of Adverse Possession is common law is found in the statue of Westminster , in 1275, under which limited actions for the recovery of land could be made. In early England the best evidence of ownership was possession. The statue of limitations, 1639 set the period at 20 yes. Within an owner could sue for recovery of possession.


The modern concept of adverse possession has its origin from the concept that land derives its value from what it could produce and consequently the person who possess the land and uses it to produce something of ultimate benefits society was sue as the person who held best title to the land .

May be , because of its usefulness, the concept of Adverse Possession remains as part of the law and is still with us ever after 4000 yrs. Because it is so valuable in gaining, holding and perpetuating ownership of land . History has many examples of statue recognisation title of land/immovable property by Adverse Possession subject ofcourse to the pd of limitation.


CASE- Perry vs. Clissold (1907) AC 73- “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statue of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title.

Applicability of adverse possession in India

In India, the doctrine of adverse possession is appealed when the authentic holder of the stabled property leaves his property abandoned for a certain span of time. The doctrine of adverse possession is described beneath article 65 of schedule the Limitation Act in which after 12 years a different person can protest above the title of any other person’s private property below several circumstances .Under Article 112 of schedule 1 of the Limitation Act the limitation of enter the suit in contrary to adverse possession is between 30 years.


There are a few important points in adverse possession

· One need to adore the property by the understanding on whom the title is placed.

· There should be allow up on the portion of the person on whom the title lays.

· It must not be adore by written commitment.

· If the actual keeper or title possessor does not demand anything known of that property, the individual could challenge for adverse possession.


CASE – Karnataka Board of Wakt vs. Government of India

= “In the eye of the law, an owner would be deemed to be in possession of a property as long there is no intrusion.” Thus, under of the land extinguishes if he does not interfere within the specified time limit.

Wrongful / Illegal possession

Illegal possession is a holder of title on which lawful penalty are inflicted because the property is not legally hold.

The very usual example of unjustified possession is during a holder unlawfully captures the property and decline to leave the place .

Normally unlawful possession is done in two manners

1. When several casual people forge documents and unlawfully capture the property by constraint.

2. An unlawful possession can even take place when a holder/renter disapprove to leave the place.

How to avoid the property by getting unlawfully captured

There are some legal equipments available to reinstate the possession and secure the land by unlawfully captured.


1. Prevention is better than cure – A real attended contract must be generated and a well describe occupancy contract should be created and tenancy must change continually.


2. Authentic legal statue – Under section 5 of the Specific Relief Act , an individual who is deprived of his property can acquire possession by title.

Under section 6 of the Specific Relief Act, a person deprived may regain his entitlement simply by certifying past possession and ensuring illegal eviction.


The requirement for acquiring title over a property by adverse possession

There are four needed constituent for an adverse possession to be effectual:

1. The beneficiary must have literally invade the property and must have exclusive.

2. The holding must be “unlocked and famous”

3. The holding must be unfavorable to the real owner and beneath a claim of right

4. The holding must be “uninterrupted” for the judicial time.

Why adverse possession is allowed /needed

Adverse possession subsists to restore prospective or real faults in actual fortune titles by placing a statue of restrictions on viable legal action over ownership and holding. There are many benefits and requirements derived from adverse possession:-

· Owners who have deserted their houses

· preclude plaintiff

· The real life itself

· The borough and country

· The adverse beneficiary or the resident of the deserted house.

CONCLUSION:-

Adverse possession is a legal theory under which someone who is in possession of land owned by another can actually become the owner if certain requirements are met for a period of time defined in the statues of that particular jurisdiction. But the main question arises here is whether it is legally valid to acquire other person’s property only by holding a possession in it? The Limitation Act, 1963 is a key piece of legislation, elaborating on adverse possession .In which a period of 12 years for private property and 30 years for public property is stated , only after that if a person has holding it’s possession not the owner of that property for that time without any disturbances , then he can acquire that property legally. It helps to encourage others to step in and maintain a property that has been abandoned .Because many owners leave their property for many years vacate and avoiding to pay their property taxes and they even not check that if anyone has squatting on their property or not .Hence, it is concluded that if the real owner is not able to take care of their property which affected in economic perspective also then by the help of adverse possession the property can be maintained and property taxes will also be paid up by the possessor who posses that property .



Author Details: Divyanshi Dikshit  and Shreya Banerjee (Banasthali Vidyapith)

The views of the author are personal only. (if any)


Subscribe

Follow Us

  • LinkedIn
  • Facebook
  • Instagram

Search Bar

Advertisements

Juscholars' Updates

Tags

SIGN UP AND STAY UPDATED!

 Our Team    Join Us     Contact Us     About    Disclaimer     Privacy Policy     Terms of Service      Advertise