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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

AN OUTLINE OF THE DOCTRINE OF ADVERSE POSSESSION: IN LIGHT OF INDIAN CONTEXT

INTRODUCTION

In all legal frameworks, the claim to rights and interests in land based on ownership has been recognized. If the original owner of immovable property leaves it unattended for a period of time, the doctrine of adverse possession is applied. The Limitation Act of 1963 governs this particular length of time. This Act establishes the parameters under which a person may assert his or her ownership of a piece of land. It is mostly focused on the premise that the property’s original occupant was unaware of his rights over the immovable property. Legal steps to constitute adverse possession were laid down in Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, which stated that the possession must be sufficient in continuity, publicity, and scope. It must be hostile to the owner, denying the owner’s title or information in a free, obvious, well-known, and peaceful manner. Long ownership or possessions as a trespasser are not enough to apply for adverse possession. Possession as a joint/co-owner isn’t always considered negative.

TIME LIMIT UNDER WHICH ADVERSE POSSESSION CAN BE CLAIMED

The theory of adverse possession is established by Article 65 of the Limitation Act, which states that a claim of title to immovable property is valid for a term of 12 years.However, the 12-year count begins when the defendant’s possession becomes unfavorable to the complainant. For example, if A, the landowner, gives his property to B for upkeep, and B returns after 12 years to claim the property, the court will not hear his case in his favor. “In the eye of the law, an occupant will be considered to be in control of a property as long as there is no intrusion,” the Supreme Court of India said in the Karnataka Board of Wakt vs. Government of Indiacase. As a result, under sections 27 and 65 of the Limitation Act, if the original owner of the property does not intervene within the prescribed time frame, his title to the land expires.

When the property is private, a suit against adverse property may be brought within 12 years under Article 65 of Schedule 1, but when the property is held by the state, the time period for bringing a suit against adverse property is 30 years under Article 112 of Schedule 1 of the Limitation Act.

ESSENTIALS FOR CLAIMING ADVERSE POSSESSION

1.      There must be immovable or movable property.

2.      The essence of the possession must be visible, aggressive, and uninterrupted for the time prescribed by the Limitation Act.

3.      Under Article 65 of the Limitation Act, adverse possession cannot be asserted for a limited period of time.

4.      Possession of land must be followed by the intention of acquiring the right of title through that possession.

5.      When an individual arrives and captures a piece of land for a set amount of time, he is robbing the legitimate owner of the property. As a result, unfavorable disposition should be used to dispose of ownership.

LEGAL PROVISIONS- LIMITATION ACT, 1963

1.      Section 27talks about ‘Extinguishment of right to property’. It is one of the few exceptions to the rule of limitation’s general rules. It does not take away a person’s right to property, but it does make it more difficult to assert it until certain requirements are met, such as when the person who owns the deed to the land fails to exercise his right deliberately.

2.      Article 65(Schedule I) – The statute of limitations specifies a 12-year term from the day that the defendant’s ownership becomes unfavorable to the complainant, in which the plaintiff’s right to sue is barred.

3.      Article 112(Schedule I)- In the case of a government agency, the statute of limitations begins to run after 30 years in the case of a similar suit brought by a private citizen.

THE EVOLUTION OF THE DOCTRINE

Adverse Possession originated in England around 1275, with the goal of allowing an individual to invoke the right of “seisin” from his forefathers. Many people believed that enforcing the original legislation on “seisin” was impossible, but around 1623, a statute of limitations was enforced in a position that permitted anyone who had been in possession of the property for twenty years or more to obtain possession. The early English strategy was designed to avoid time-consuming and costly court disputes over land rights. The doctrine was also developed to prevent land waste by forcing owners to maintain ownership of their property or risk losing their title. After that, the term “adverse possession” was coined in the United States. The doctrine of Adverse Possession was crucial to the American people at a time when the amount of land disputes involving Adverse Possession of immovable property was on the rise. As a result, some states have shortened the limitation period for acquiring land by Adverse Possession to five years, while others have held it at forty years.

We have seen registered title papers and more proper, if not perfect, title entries in government records since our country’s independence. The situation has changed, and the legislation now demands changes. Law isn’t a dry topic, it’s not rigid, and it’s complicated. Law is evolutionary in the sense that it evolves over time as a result of cultural changes such as emerging demands, specific values, and old ideas. It can change by enacting new rules, amending or repealing old ones. It also varies as a result of new precedents being established and old precedents being overturned by the courts. The concept of adverse ownership has since been re-defined by societal needs as well as legal precedent.

THE SUPREME COURT’S POSITION ON ADVERSE PROPERTY

The Supreme Court recently ruled in favor of an elderly widow woman whose land had been confiscated by the Himachal Pradesh government for road building. And though the government claimed adverse ownership, it refused to pay compensation for 52 years.

The bench judged by Indu Malhotra pronounced that, “A welfare state cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the property of its own citizens

While the doctrine of adverse occupancy is granted in favor of those who hold the property for a fixed period of time as prescribed by the Limitation Act, 1963, it was made clear by this recent decision. However, there is an exception to this doctrine that cannot be used for personal benefit. This rule, on the other hand, justifies itself for those who have cared for the land for a long time and can acquire ownership by adverse possession.

CONCLUSION

We live in a world where a vast group of people has encroached on their survival since the dawn of time. These people have bought a property and constructed houses for them in order to survive, and they have lived there for a long time with the intention of taking possession of that estate.

In light of this, it seems that striking a balance between the law’s benefits and drawbacks is a crucial precondition. It is also suggested that the restriction periods for extinguishing the right to assert ownership set out in Articles 65 and 112 of the Act is extended to 25 and 40 years, respectively.

REFERENCES

  • 1.       https://law.asia/adverse-possession-law-india/
  • 2.       https://lawcommissionofindia.nic.in/reports/Adverse%20Possession.pdf
  • 3.       https://indiankanoon.org/doc/199096823/
  • 4.       https://www.thehindu.com/news/national/private-property-is-a-human-right-says-sc/article30551819.ece
  • 5.       https://indiankanoon.org/doc/1418721/
  • 6.       https://lexterz.com/the-doctrine-of-adverse-possession-in-indian-context-an-overview/
  • 7.       https://blog.ipleaders.in/claiming-property-based-on-adverse-possession/#Historical_background
AUTHORED BY: SUKRITI

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