Nov 18,2021 | min read

Adverse Possession of Immovable Property

One might be surprised to learn that under some conditions, a trespasser can enter your property, inhabit it, and claim legal possession. This is referred to as "adverse possession" in legal terms. We live in a civilization in which everything is regulated. Adverse possession serves as a reminder to the property owner of their ownership interest in the property. We must stay vigilant and aware of any property that has been left unoccupied for longer than the legal period, or we risk losing our ownership.

Adverse Possession 一 Terminology 

In the matter of Amarendra Pratap Singh v. Tej Bahadur Prajapati , the Supreme Court stated concerning adverse possession 一 “A person, though having no right to enter into possession of the property of somebody else, does so and continues in possession fixing title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on a part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.” 

Adverse possession is a legal concept that confers title to someone who lives on or is in possession of someone else's property. The possessor receives the property's title if certain requirements are satisfied, such as whether they infringe on the rights of the true owner and if they have been in continuous possession of the property. Although squatter's rights is a colloquial term for the concept, adverse possession is frequently referred to as squatter's rights.

Following the equitable principle of nec vi nec clam nec precario (without force, without secrecy, without permission), it was declared in SM Karim v Mst. Bibi Sakina that adverse possession must be sufficient in continuity, publicity, and extent, and that a plea is required to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

Doctrine of Adverse Possession vis a vis Indian Law: 

In India, adverse possession means that a trespasser or stranger who takes possession of land must keep it exclusively and continuously for a length of time, often 12 to 30 years, depending on the kind of ownership (private or government). That the statute of limitations is designed to provide genuine owners plenty of time to inspect and safeguard their property against a third-party claim. If the genuine owners do not do so for an extended length of time, they will lose the land. The law of Adverse Possession is found in Article 65 Schedule I of the Limitation Act, 1963, which states that a claim for possession of immovable property or any interest therein based on title has a 12-year limitation period.

The concept of adverse possession has developed in recent years, and the Supreme Court has emphasised the necessity for a re-examination. In PT Munichikkanna Reddy and Ors v Revamma The Supreme Court was led by the European Court of Human Rights' (ECHR) decision in JA Pye (Oxford) Ltd v United Kingdom, which criticised the rule of adverse possession and recommended that it be re-examined in light of developments in the law. 

In Hemaji Waghaji v. Bhikhabhai Khengarbhai, the Supreme Court attacked the statute, calling it unreasonable, illogical, and utterly excessive. The court ordered the Ministry of Legislation to review the law of adverse possession again. Furthermore, in State of Haryana v. Mukesh Kumar, the Hon'ble Supreme Court made some key points and reaffirmed the need to revisit the rule of adverse possession, as stated before in HemajiWaghaji's case (above).

The Supreme Court ruled that the idea of Adverse Possession is based on British law and advised parliament to consider repealing or amending the legislation to give owners some remedy for their inactivity. Adverse Possession permits a tortfeasor to get legal title to the land he has been trespassing on for the past 12 years. In addition, the Supreme Court advised the Union of India to make the following changes to the Law of Adverse Possession:

  • Rather than 12 years, expand the time to 30 to 50 years.

  • To pay the property's title-holder market rates or a smaller sum.

Postscript: A copy of this ruling should be provided to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India, so that legal action can be taken.

Conclusion 

We in India will continue to be regulated by the provisions of the 1963 Act, as described above, and the judgements of the Hon'ble Supreme Court on the same matter until the legislation pertaining to adverse possession is either repealed or altered. 


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