By Adv. Prachi Bansal, Lex Maven

ADVERSE POSSESSION

Doctrine of Adverse Possession is the right which is provided to the persons who is holding the possession of the land rather than the true title or ownership of the land for a period beyond the limitation as mentioned in the Limitation act 1963. At times the actual owner of the property leaves the property unattended for a certain period of time than at that time the doctrine of the adverse possession comes into existence.

MEANING OF ADVERSE POSSESSION

The term Doctrine of Adverse possession refers to a legal Principle in which a person who holds the possession of any property or any person who is residing in that property holds the property for a certain time period which is more than the limitation time as prescribed under the Limitation act than if the actual owner ignores his rights over the property knowing that the property is in possession of other person than the said property as per this doctrine goes into the possession of another person who at that time was holding the possession of the said property. The time specified under limitation act for adverse possession is 12 years related to an immovable property.

Here the basic concept revolves around the awareness of the owner in which the owner has to take legal actions in pursuance of his rights and if the owner fails to do so than the actual owner loses his rights over the property on the ground of the ignorance of the same .

Meaning of Possession:-

The term possession means the physical control over a thing or a property by any person establishing a relation between a thing or property so kept and the person holding the property. Possession is a prima facie evidence of an ownership of a person over a property.

Elements of the Possession:-

There are 2 basic ingredients to establish a possession, They are as follows-

1. Corpus Possession- It deals with the concept of effective control of the object in other words the existence of such physical contact of a person with a thing giving rise to the reasonable assumption that others will not interfere with the property. It also deals with the concept of the relation of the possessor to other persons and the relation of the possessor with the thing possessed wherein the relation of the possessor to other persons includes the concept of non-interference of the thing from other persons.
2. Animus Possession- It deals with the concept of mental element or intention of possessing the thing and excluding others from interfering the possession and the material object of the thing or the property.     

In the case of the Merry vs Green 1841 a bureau was purchased by the person and some money was discovered from the secret drawer of that bureau and the same money was appropriated by the purchaser later on the court held that due to lack of the Animus related to the money so appropriated the act of the purchaser is held to be the act of the larceny.   

IMPORTANCE OF ADVERSE POSSESSION

The concept of the Adverse possession is necessary to understand with a view that being a property owner it is very important to know the rights and limitation over accessing the rights on a particular property otherwise the right of the person goes into vain. There are certain cases in which the owners had lost their title over their properties only for the reason of not being aware of the rights and the limitation for accessing their rights.

TIME PERIOD UNDER LIMITATION

The time period required for fulfilling the requirements of adverse possession is 12 years in case of individual’s property as per article 65 of limitation act 1963 and 30 years in case of government property as per the article 112 of limitation act 1963.

ESSENTIAL ELEMENTS FOR CONSTITUTING THE RIGHT OF THE ADVERSE POSSESSION

There are some ingredients which constitutes the right of adverse possession to other persons failing to do so will bar the claimant to claim for the right of the Adverse Possession, they are as follows:-

1. Actual Possession of a property–

For claiming Adverse Possession one needs to prove the acts of the person similar to the acts so possessed by the Owner of the property like erection of the shed or the construction of the house . In other words the act of the person holding the possession of a particular property should be such that the person is living like an owner of that property.2.

2. Continuous and uninterrupted possession-

Here, the person claiming the adverse possession needs to prove that the person is holding the continuous possession of that property .i.e. for upto 12 years without getting interrupted by anyone for holding the possession of that property. There should be an intention to hold that property and the person so claiming the right of adverse possession continuously holds the possession for a period of 12 years.

3. Exclusive Possession-

Here the property so claimed for adverse possession should be solely in the possession of the claimant only and no other person should have taken the physical possession of the said property in that period of span of 12 yeras.

4. Open and Evident Possession-

Here the person holding the possession should have that possession open and in evident manner in other words one should be staying in that property in such a way that an ordinary man would believe him / her to be the owner / possessor of that property.

5. Hostile or Adverse Possession-

Here the person holding the possession of the property holds that possession against the permission of the actual owner with an intention to take away the possession and the title from the owner and without any prior consensual document from the actual owner. In this if the person holding the possession has entered into any type of agreement or has signed any document with the permission of the owner than it is stated as permissive possession and not as a ground for adverse possession.

EXCEPTIONS TO ADVERSE POSSESSION

There are certain exceptions to the right to claim any title of the property under adverse possession they are as follows:-

1. Absence of Sufficient Animus or Intention–

If there is any absence of sufficient intention for claiming the title over any property under the Adverse possession than the intention or animus possidendi shall be proved by the person claiming title under adverse possession.

2. Permissive Possession-

If there is any such relationship between the owner and the possession holder wherein the possession has taken by  the possession holder in furtherance to the permission of the owner and any such document or such relationship still exists then it would be termed as a permissive possession. Example- If a tenant is holding the possession of certain property more than 12 years but such possession exists in lieu of the rent agreement signed by the owner and the tenant than such possession will be termed as permissive possession.

3. Absence of rightful claim-

In case of absence of the rightful legal person claiming the title of the property under adverse possession than the benefit of right of adverse possession will not be given to the person holding the possession.

CASE REFERENCES:-

1. In Annakili V. vs Vedanayagam (2007) 14 SCC 308, the Hon’ble Supreme court emphasized that mere possession of land would not lead to a possessory title. The possessor should have the intention and must have hold the title adverse to the title of the true owner and should have continued in the capacity for the period prescribed under the limitation act.
2.  In Karnataka Board of Wakf’s case, (2004) 10 SCC 779 the court held that the Non-use of the property by the owner even for a long time won’t affect his title but the position will be altered when another person takes possession of the property and asserts a right over it.
3. In Gorige Ailamma vs Utkoori Somaiah And Others – 2015 (2) ALT 467, it was held that where a party is seeking declaration of title and recovery of possession, burden lies on such a party to adduce satisfactory evidence to prove his title and possession.  
4. In Cheedella Padmavathi’s case, 2015 (5) ALT 634, it was held that a person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, thus it is for him to clearly plead and establish all facts necessary for adverse possession. A Person who claims adverse possession should show:

(a) On what date he came into possession

(b) What was the nature of his possession

(c) Whether the factum of possession was known to the other party

(d) How long his possession has continued and

(e) His possession was open and undisturbed

5. In Hemaji Waghaji Jat vs. Bhikhabhai Khengarbhai Harijan(2009) 16  SCC 517, the Apex Court criticised the doctrine of Adverse Possession and maintained that the doctrine of Adverse possession is illogical, irrational and wholly misappropriate because it punish the actual owner for not taking any action within the limitation period. Whereas, it rewards the dishonest person who has illegally taken the possession of the property.

6. In Ravinder Kaur Grewal V Manjit Kaur, (2019)8 SCC 729, the Hon’ble Apex Court held that a person in possession of any property cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over then the right of true owner to eject the current possessor is also lost and the possessory owner acquires the right, title and interest over the property. The court further held that Article 65 of Limitation Act, 1963 not only enables a person to set up a plea of adverse possession as a shield for defendant but also allows a plaintiff to use it as a sword to protect the possession of immovable property.    

CONCLUSION–

Hence Adverse Possession is one such method to gain the title of the property by the person holding possession over another’s property holding that possession in continuity and openly and after fulfilling all other legal requirements as prescribed under the statute and the doctrine of adverse possession starts when the hostile amounting to the denial of title of the real owner and the same is in his knowledge and the doctrine of adverse possession awards ownership of the land to the person who makes the best or highest use of land.