The concept of Adverse Possession in India refers to mean a condition where trespasser or a stranger who comes into possession of the land and retains exclusive and continuous possession without interruption for a certain period of time particularly for consecutive 12 years.
A legal doctrine known as “adverse possession” gives title to a person who is in possession of another person’s property. As long as the possessor satisfies specific requirements, such as not violating the rights of the true owner and maintaining continuous possession of the property, they are granted title to the property. The term “squatter’s rights” is frequently used to allude to adverse possession, but it is a slang term rather than a formal legal provision. Adverse possession is a legal situation that occurs when one party is granted title to another person’s property by taking possession of it. This can happen intentionally or unintentionally with or without the property owner’s knowledge. Adverse possession is commenced in wrong and is aimed
INGREDIENTS OF ADVERSE POSSEESSION
If one intends to establish adverse possession in the Limitation Act of 1963, the burden of proof will rest on them. To successfully establish adverse possession, the following elements must be proven in court:
1. Date of possession: The date on which adverse possession in India of the property began must be established. This date is critical as it determines the 12-year statutory period required for adverse possession.
2. Knowledge of owner and neighbours: It is necessary to demonstrate that the true owner had knowledge of the possession and the date when they became aware of it. Additionally, it is essential to establish that immediate neighbours were aware of the possession and the date when they became aware of it.
3. Peaceful possession: The possession must have been peaceful and not obtained by coercion. The possession must have been in opposition to the true owner’s expectations.
4. Lack of action by the owner: It must be proven that the true owner did not take any action against the possession despite having knowledge of it. It must be proven beyond reasonable doubt that the owner was aware of the possession.
5. Exceptions: It is also necessary to demonstrate that none of the exceptions to the rule of adverse possession are applicable in the case.
6. Continuous possession: It must be established that the possession of the property was continuous without any interruptions by the owner or any other person.
KINDS OF ADVERSE POSSESSION
a. Possession that is adverse from the beginning, or
b. Possession that became so subsequently.
If a trespasser takes possession of A’s property, and retains it against him, his possession is adverse ab initio. But if a grants a lease land to B, or B obtains possession of the land as A’s bailiff, or guardian, or trustee, his possession can only develop adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession in contradiction of all who cannot show a better title, but also, if the adverse possessor remains in possession for a sure period of time produces the effect either of barring the right of the true owner and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property though the true owner is unaware of the adverse possession being in occupation. Forcible possession for more than the statutory period establishes adverse possession.
In the matter of Gurudwara Sahib vs. Gram Panchayat Village Sirthala & Ors1, Hon’ble Apex Court
ruled that defendant can use this adverse possession only as a shield/defence, and it cannot seek a declaration
to the effect that such adverse possession has mature into ownership. It was observed by the court that,
“There cannot be any quarrel to this extent the judgments of the courts below are correct and without any
blemish. Even if the Plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect
that such adverse possession has matured into ownership. Only if proceedings filed against the Appellant and
Appellant is arrayed as Defendant that it can use this adverse possession as a shield/defence.” A full bench
of Hon’ble Supreme Court in the matter of Ravinder Kaur Grewal and Ors. vs. Manjit Kaur & Ors2
discuss the entire law on adverse possession and in this 1 (2014) significant ruling, the three-Judge Bench
1 SCC 669
2 (2019) 8 SCC 729
comprising of Hon’ble Justice Arun Mishra, Justice S. Abdul Nazeer & Justice M.R Shah has settled the question of law regarding whether a person claiming the title by virtue of adverse possession can maintain a suit Under Article 65 of Limitation Act, 1963 for declaration of title and for a permanent injunction seeking the protection of his possession thereby restraining the Defendant from interfering in the possession or for restoration of possession in case of illegal dispossession by a Defendant whose title has been extinguished by virtue of the Plaintiff remaining in the adverse possession or in case of dispossession by some other person? The Court under Para 64 has overruled the case of Gurudwara Sahab vs. Gram Panchayat Village Sirthal3, and decision relying on it in State of Uttarakhand vs. Mandir Shri Lakshmi Siddh Maharaj4 and Dharampal (dead) through LRs vs. Punjab Wakf Board. 5In the above landmark judgment it was ruled that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed.
In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the
Plaintiff as well as a shield by the Defendant within ken of Article 65 of the Act and any person who has
perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can
be maintained.Under “Article 64”, even before the ripening of title by way of adverse possession. By perfection
of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed
by the owner after having lost the right by adverse possession, he can be evicted by the Plaintiff by taking the
plea of adverse possession. Similarly, any other person who might have dispossessed the Plaintiff having
perfected title by way of adverse possession can also be evicted until and unless such other person has
perfected title against such a Plaintiff by adverse possession. Similarly, under other Articles also in case of
infringement of any of his rights, a Plaintiff who has perfected the title by adverse possession, can sue and
maintain a suit. The law of adverse possession as has developed vis-à-vis to3 (2009) 13 SCC 229
4 (2017) 9 SCC 579
5 (2018) 11 SCC 449
property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.Decisions of Gurudwara Sahab vs. Gram Panchayat Village Sirthala, State of Uttarakhand vs. Mandir Shri Lakshman Siddh Maharaj and Dharampal (dead) through LRs vs.
Punjab Wakf Board cannot be said to be laying down the law correctly, thus they are hereby overruled. Plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff.”
The Hon’ble Supreme Court in numerous cases has reiterated the position regarding adverse possession as laid down in Ravinder Kaur Grewal & Ors. vs. Manjit Kaur & Ors6, setting aside the trial court’s rejection of the plaint and the High Court’s order confirming the same relating to the suit claiming title based on adverse possession. Hon’ble Apex Court while upholding that the Plaintiff can claim title to the property based on adverse possession.
CONCLUSION
In conclusion, it may seem paradoxical that the law attempts to punish a title holder who is unconscientiously
by rejecting its claim, but on the other hand, the same law honours a wrongdoer and an offender by confirming
his title by unlawful ownership, if his possession meets the requirements. Ordinarily transfer of ownership of a
property, is affected by proper registration, stamp fees and duties but when it comes to adverse possession,
transfer of property is a natural consequence of certain common law requirements, as long as they are met for
12 years. The Hon’ble Apex Court in Hemaji (2009) and Mukesh Kumar (2011), has opined in stark
disapproval of it, but the Law Commission of India in its 280th Report seeks to analyse and explain as to how
despite popular perception to the contrary, it can still be understood to be moral. Adverse Possession ensures
that there is always someone in charge
6 2019 (8) SCC 729
of that property in the eyes of the law, and hence no unsettling vacancies. This is precisely the reason why the law validates the claim of adverse possession made by the squatter only when the owner can be shown to have lost effective authority. The law of adverse possession is not for the benefit of the State or the Government but for the public at large. Hence, it cannot be termed to be colonial. The judgment in Ravinder Kaur Grewal vs. Manjit Kaur, a three-Judges Bench of the Supreme Court reaffirmed the long-standing right of adverse possession, meaning thereby that even a suit can be filed to claim title on the basis of adverse possession. Some decisions of the Supreme Court to the contrary were overruled by this judgment. If the executing or controlling agency of Government lands is not acting promptly and properly to prevent any encroachment, it does not mean that the law itself is bad. Removing the law of adverse possession in respect of Government lands would lead to a chaotic situation, leading to a lot of instability as the people will not be able to crystallize their rights, with generation after generation living under the threat of eviction.