In the historical context, the concept of adverse possession related to the land dates back to the days when the land was grabbed by feudal lords, conquerors and barrons from the poors, who could barely protect their right and ownership over the property. This practice is centuries old and even continues till today.
The fundamental principle on which the concept of adverse possession rests upon is first, the competing rights of ownership between the actual owner and the caretaker of the land, second, the land in dispute kept in abeyance for long and third, the presumption of doing away with the possessory rights by the actual owner.
This practice is not alone recognized in India but also in the western nations like UK, USA, Germany, France, Australia etc. with different limitation periods recognized. The English law still recognizes 20 years as the limitation period after which the ownership of the actual owner does not remain. However, with the change in law and after several amendments, the land which is unregistered or where although land is registered but the trespasser notched up, 12 years of the adverse possession will apply.
The term Adverse possession has not been defined anywhere in the Limitation Act, 1963 since the right is not a positive but a negative right. It is a consequential right based upon the inaction of the owner, where the owner has been negligent not to take action in case the possession has been taken by any other person for more than 12 years in continuity.
Section 27 of the Act, explains if the person has not taken any action for the recovery of the possession taken by someone else during the limitation period i.e. 12 years as mentioned in Schedule 1 of the Limitation Act, 1963, the right of the owner gets extinguished and the property is left in abeyance. However, as explained earlier the land cannot be left in abeyance and hence inaction of the rightful owner gives away on his right and the person having adverse possession becomes the rightful and absolute owner of the land.
It is to be remembered always that the adverse possession once starts when the possession becomes adverse to the true owner and not otherwise.
There are two aspects to be focused upon in the case of act that amounts to adverse possession:
The nature of the land should be exclusive, uninterrupted and continuous. Further, the possession should be physical in nature and not constructive possession.
The possession of the land should be hostile to the actual owner.
Animus possidendi( Intention to possess) should be present while claiming ownership by taking a plea of adverse possession.
If discussed in the broader terms, there are only 3 conditions where the plea of Adverse Possession cannot be taken:
In those cases where there is permissive possession, the plea of adverse possession cannot be taken by the party. A permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of the real owner.
In those cases where the one party has given to the other party the possession of the land as a part performance under the agreement to sale under section 53A of the Transfer of the Property Act,1882.
A co-owner cannot claim adverse possession over the property he has a possession on. The co-owner only acts as a representative on behalf of the other co-owners of the property.
The Supreme Court in the case of Gurudwara Sahib v Gram Panchayat Village Sirthala [(2014) 1 SC 669] held that the Defendant cannot file a case of Adverse possession and it can only be used as a shield by the Defendant in a suit initiated against it and cannot be used as a sword by a plaintiff.
However, this ruling of the Supreme Court was overruled in the judgment of Ravinder Kaur Grewal and Ors v Manjit Kaur and Ors. Civil Appeal No.7764 of 2014 where the bench held that a person who has perfected his title by way of adverse possession can file a suit for restoration of possession in case of dispossession and therefore concluding that the plea of adverse possession can be used both as a sword and as a shield.
The burden of proof in respect to the adverse possession is on the person who claims title by way of the possession.
Many times the Supreme court in its various judgments has observed that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. Now, it is the time to ask whether the law on adverse possession should remain as a statute or it should be repealed?