On Adverse Possession and Consequent Change of Ownership

Introduction

Adverse possession is a peculiar kind of possession of land where a person not having legal title to the land enters and occupies the land for long period with no continuing permission of the legal owner and the true owner subsequently loses his ownership rights after a legally permissible period of his inaction in recovering the possession from the possessor. The owner might have initially permitted the possessor in entering the land on the basis of a lease or licence.

It is the Section 5 of the Specific Relief Act that provides for recovery of specific property on the basis of the title one holds. Who owns a better title of the property has the power to possess it over the other. The Section 6 of the act makes it possible for a title holder to file a suit for recovery of possession of the property, but dispossession of any property by illegal means is unlawful as it is an offence under Section 145 of Criminal Procedure Code.

In law, possession itself is a prima facie proof of ownership or right on property. Possession gives a rebuttable presumption of ownership, unless the contrary is established.  Since the true owner cannot evict a possessor of property after a long period of non-possession, an actual possessor who sets up a claim for the property exclusively on the basis of his possession for long becomes a legally valid title holder of the property against the interest of the true owner. It is called adverse possession.

Adverse possession explained

Indian law allows the adverse possessor (called the disseisor), who holds no ownership of an immovable property, to get its ownership/title after a prescribed statutory period of limitation. By efflux of time the owner’s legal right to recover the property comes to an end and the possessor becomes eligible for ownership of the title if the possession shows certain characteristics.

The claim of ownership/title based on adverse possession by a possessor stems from uninterrupted, uncontested, hostile and exclusive possession of the property for a prescribed limitation period. In such case, the prescription of period of limitation for recovering possession goes against the rights and interests of true owner. Normally owner’s non-use of land is not a limiting factor but his negligence in taking action when someone else unlawfully asserts his right on it is unacceptable in law. The right of the possessor stems solely from this negligence.

However law does not recognize adverse possession by force or stealth. When a cause of action exists for the owner and no action is taken to recover the possession, the period of limitation comes to an end and the right of the owner to title will get extinguished. Then the possessor gets the prescriptive title by transfer of ownership on the basis of adverse possession. The possessing rights therein get transformed to ownership to the possessory owner.

The Rationale of adverse possession

The rationale for adverse possession rests broadly on the considerations that title to land should not remain unclaimed for so long. The society will benefit from someone making use of the land which the owner leaves idle. Such an occupant needs to be recognized as owner to protect the interest of society.  In other words, law does not support those who sleep over their property rights for long. The title holder who neglects his rights over the land needs no protection after a long passage of time. In such case, the true owner of a property loses his ownership rights owing to inaction on his part to remove a trespasser from the property within the statutory period of limitation. After the lapse of the limitation period for eviction, the true owner ceases to have any right to initiate legal proceedings to repossess his property. Consequently the trespasser acquires title to that property by adverse or hostile possession.

The adverse possession, in one sense, is based on the presumption that the owner has acquiescence to the hostile acts and claims of the person in possession and has abandoned the property to the adverse possessor. In P.T. Munichikkanna Reddy & Ors vs Revamma And Ors  2007, the Supreme Court held, “adverse possession is a right which comes into play not just because someone loses his right to reclaim the property out of continuous and willful neglect but also on account of possessor's positive intent to dispossess. Therefore it is important to take into account before stripping somebody of his lawful title, whether there is an adverse possessor worthy and exhibiting more urgent and genuine desire to dispossess and step into the shoes of the paper-owner of the property”.

The period of limitation

The statutory period of limitation for initiating action for repossession of immovable property or any interest therein, stipulated in Section 65 of the Limitation Act, 1963, is 12 years in the case of private property, and 30 years in the case of Government/state/public property. The period starts running from the date since the date the trespasser posses the property in an adverse manner. If the land belongs to the government, it is treated as precarious possession but not adverse. However, the limitation period ceases to operate when there is litigation ongoing between the claimant and the owner over the same property, or if the owner is of unsound mind or a “minor” or a person serving in the armed services.

In order to acquire title over a property by adverse possession, the possession should be open, peaceful, exclusive, uninterrupted, unobstructed and unbroken for more than the statutory period of limitation. The claimant must occupy the property by knowing fully that he does not have any legal right to posses or occupy that property. The trespasser must have intention to acquire title to the property by adverse possession against the true owner.

The adverse possession must be actual possession. It must be evinced by exercising activities such as construction of house, erection of shed or some structure, fencing the property, grazing cattle in the land, farming and harvesting of crop in the land, planting and cutting trees etc. for the entire period of limitation. The claimant must be in sole physical possession of the property against the legal claim, right and title of the true owner or any other claimant. Development of the land, construction of house and erecting boundary walls are examples of “exclusive possession” and the possession must not be a pseudo or token one. After expiry of the limitation period, no cause of action can evict the possessor and he acquires the right, title and interest of the original owner by prescription. He thereby becomes entitled to own the property in the way he likes.

Plea for abolishing adverse possession

The courts in several cases wrestled with the concept of adverse possession with qualifiers like actual, continuous, open, hostile and exclusive. The Supreme Court of India, in two decisions, namely, Hemaji Waghaji v Bhikhabhai Khengarbhai, and State of Haryana v. Mukesh Kumar 2009, sought the need for a fresh look at the law of adverse possession. The court says there is a strong demand for abolition of adverse possession as the law of adverse possession remains irrational, illogical and extremely harsh for the true owner and no certainty is there in the law of adverse possession.  

The law is considered a windfall for dishonest person who had illegally taken possession of the property. It benefits somebody who in a clandestine manner takes possession of the property of the owner in violation of law. The law approves the illegal activities of a fraudulent trespasser who had wrongfully taken possession of the property from the true owner. The law places a premium on dishonesty by legitimizing possession of a trespasser and compelling the owner to lose his right of possession due to his inaction in taking back the possession within the prescribed period.  The court adds that some of the claims based on adverse possession deserve recognition but every claim does not. The law of adverse possession is archaic and “needs a serious relook” in the larger interest of the people.

Court further criticizes the doctrine

In the latest case of State of Haryana v Mukesh Kumar, there is a hard-hitting criticism of the doctrine of adverse possession. The court says, adverse possession allows a trespasser - a person guilty of a tort or a crime in the eye of the law - to gain legal title to land which he has illegally possessed for 12 years. It adds that in logical and moral terms it is baffling to see how an action of illegality for twelve years turns into legal title. This outmoded law asks the judiciary to place its stamp of approval on the doctrine of adverse possession which the ordinary Indian citizen would find reprehensible. The doctrine has troubled a great many legal minds. Therefore there is a need for change. The court says the doctrine is an absurdity and a black mark upon the legitimacy of the justice system.

A fair balance needed

However a total abolition of adverse possession would set off diverse kinds of practical problems to common man who in a bona fide manner possesses property with no title document. Many people in rural areas remain in possession since long by virtue of inheritance, purchase or otherwise without any valid title deed. The shoddy manner in which registration of titles is done and the land record is being maintained has made it difficult to people engaging in land deals to know the true owner of land and the history of its ownership.

Nevertheless there is no justification whatsoever in allowing those who grab the land overnight by force with no bona fides getting title by adverse possession.  The owner of property who may not be physically available to disrupt hostile possession is now penalized. Therefore, there is a need to strike a fair balance between competing considerations in the law of adverse possession.

Additional Reading: Important Case Laws

The author, now with Thrissur Bar, can also be reached at rajankila@hotmail.com

 

K Rajasekharan 
on 30 August 2017
Published in Civil Law
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