Adverse Possession

What is Adverse Possession?

Adverse possession is a legal doctrine under which a person who does not own a piece of land can claim ownership of it if they have occupied it continuously, openly, and without the legal owner's permission for a certain period prescribed by law. This concept is important because it can settle disputes regarding ownership of property and ensure that land is used efficiently rather than being idle. It is often referred to as "squatter's rights" and has its footing in the concept that land should be protected by and for those who use the land.

Official definition of Adverse Possession

The Black’s law Dictionary Defines adverse possession as follows: to destroy the continuity of the adverse claimant's possession, there must be an intent to relinquish the claim of ownership, as well as an act of relinquishment of possession; mere temporary absence is not sufficient. The term "adverse possession" is defined in legal sources as the process by which a person can acquire legal ownership of property by possessing it in a manner that is hostile to the rights of the true owner, actual, open, continuous, and exclusive, for a statutory period.

In India, this concept is governed by the Limitation Act, 1963, under which Section 27 states that ownership rights are extinguished if the owner fails to file a suit for possession within the prescribed limitation period, and Section 65 prescribes 12 years as the limitation period for claiming adverse possession.

Adverse Possession as defined in the legislation

The term "adverse possession" is not explicitly defined in any Indian statute but is recognized under the Limitation Act, 1963. Section 27 of the Act provides the basis for extinguishing ownership rights if the rightful owner does not assert their claim within the statutory limitation period. Section 65 prescribes a 12-year limitation period for adverse possession of immovable property. While not directly defined, the doctrine has been elaborated through judicial interpretations, emphasizing continuous, hostile, open, and exclusive possession against the interest of the true owner.

Adverse possession as defined in Official Government Reports

Law commission Reports

3rd Law Commission Report titled, Limitation Act, 1908 : The Commission recommended that Article 142 should only apply to suits based on possessory title, ensuring that the true owner does not lose their rights unless the defendant in possession can prove adverse possession. The current law, influenced by court decisions, can favor a trespasser over the owner, leading to confusion and unfair outcomes. The recommendation aims to prevent injustice, simplify the law, and protect the rights of property owners.

89th Law Commission Report titled, Limitation Act, 1963,  : The Law Commission reviewed the Limitation Act, 1963, addressing criticism of adverse possession. It explained the origins of the doctrine and differences with Roman law. Recommendations focused on possession-based suits and the statutory period for adverse possession. The Supreme Court emphasized the need for consistent conduct to establish adverse possession. Despite criticism from some jurists, the Commission concluded that the doctrine should remain unchanged due to its integration into Indian jurisprudence and lack of controversies in the country.

193rd Law Commission Report titled, Transnational Litigation, Conflict of Laws, Law of Limitation, 2005 : The Law Commission's 193rd Report discussed adverse possession, stating that under Article 65 of the 1963 Act, a person can acquire title to immovable property through open and continuous possession against the real owner's title for twelve years. For Government property, thirty years are required. The report also noted that Courts' principles allow limited rights acquisition through adverse possession.

280th Law Commission Report on The Law on Adverse Possession, 2023: After discussing whether any amendment is required in the Limitation Act, 1963, the law commission decided that amendment is not required. The Law Commission emphasizes that adverse possession should be available even to those who enter land dishonestly or as naked trespassers. They argue against compensating trespassers making improvements, stating it would harm the true owner's rights. The Commission rejects extending limitation periods and sees no need for special safeguards for Non-Resident Indians. They recommend deleting references to Jammu and Kashmir in the Limitation Act.

Adverse Possession in Case Laws

1. K.K. Verma v. Union of India: The Supreme Court emphasized that for a claim of adverse possession, the possession must be open, continuous, and hostile to the owner's interest for the statutory period, showing an unequivocal intention to possess.
2. Karnataka Board of Wakf v. Government of India: The Court held that mere possession is not sufficient to claim adverse possession. It must be established that possession was hostile to the true owner and acknowledged as such.
3. Ravinder Kaur Grewal v. Manjit Kaur: In this landmark decision, the Supreme Court clarified that a person claiming adverse possession must demonstrate possession that is peaceful, open, and hostile for a period exceeding 12 years as required under the Limitation Act. The Court also underscored the need to balance the rights of the owner and the possessor.

Adverse Possession in other Official Documents

Adverse possession is a legal doctrine recognized in various jurisdictions worldwide, allowing an individual to claim ownership of land under certain conditions. While not universally defined in international treaties or conventions, it is acknowledged and applied differently across legal systems.

The Code of Hammurabi, dating back to around 2000 BCE, contains one of the earliest references to adverse possession. Law 30 of the code states that if a person leaves their property and another occupies it for three years, the original owner loses the right to reclaim it.

In modern times, the International Law Commission (ILC) has touched upon the concept in its reports. The ILC's 1991 report notes that "possession" is not always considered a "right" unless it is adverse possession or possessio longi temporis, which could create a "right" or "interest," depending on the legal terminology used in a particular legal system.

Additionally, the British Institute of International and Comparative Law has published studies comparing adverse possession laws across different countries, highlighting the variations in application and the legal implications of the doctrine.

Legal Provisions relating to Adverse Possession

Limitation Act, 1963

• Section 27: Extinguishment of right to property – This provision states that the ownership rights of a person are extinguished if they fail to file a suit for possession within the limitation period prescribed by law.
• Article 64 & 65 (Schedule): These articles specify the limitation period for possession-related suits.
  • Article 64: Prescribes a 12-year limitation period for recovery of possession by a person dispossessed of immovable property.
  • Article 65: Prescribes a 12-year limitation period for filing a suit for possession based on ownership, starting from the date when adverse possession begins.

Bharatiya Sakshya Adhiniyam

Section 113: This provision relates to the burden of proof in cases of ownership. It states that the person in possession of a property is presumed to be the owner unless proven otherwise. This complements the doctrine of adverse possession by requiring the true owner to prove their ownership when a claim of adverse possession is made.

Constitution of India

Article 300A: No person shall be deprived of their property except by authority of law. Adverse possession, being a statutory right under the Limitation Act, provides the framework for legal deprivation of property when a rightful owner fails to act within the prescribed time.