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 Waqf 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.

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.

Adverse possession in other countries

United States of America

The period after which the ‘real’ owner may no longer bring an action to repossess his land varies widely among jurisdictions from 5 years in the United States to 60 years in the case of claims by the crown. In the US, evidence of good faith is not a relevant consideration. No compensation is available to the original owner for extinguishment of title on adverse possession.

United Kingdom

A person in the United Kingdom who has been in adverse possession of registered land for 10 years can apply to become the legal owner. The registered proprietor will be informed upon application and given the opportunity to raise objections. If there are objections, the application will likely be denied unless specific exceptions like estoppel or boundary disputes are present. However, if the squatter continues to possess the land for an additional 2 years after a rejected application, they can reapply and become registered as the owner regardless of any opposition.

Sweden

Adverse possession in Sweden is established in Chapter 16 of the Real Property Code, enabling an individual to gain ownership of land after 20 years of continuous possession, exceeding the rights of the original owner. The clock starts ticking when someone other than the rightful owner is recorded in the land register (lagfart). The requirement of good faith is not essential for the full 20-year period; however, if the possessor initially obtained the property in good faith, the period is reduced to 10 years. In general, Swedish law does not grant compensation for land lost through adverse possession, unless the original owner was compelled to surrender their property. In such cases, the owner might qualify for compensation from the government, but only if a claim is submitted within 10 years of the title being recorded in the land register.

Canada

Adverse possession is acknowledged in Canada for unregistered land, but does not extend to registered land. The Crown can seek to recover land within a 60-year limitation period, while there is no time limit for waste, vacant land of the Crown, or road allowances if owned by the Crown or a public body. Good faith does not impact the right to title through adverse possession, and there is no compensation granted for the loss of title.

Research that engages with Adverse Possession

Use It or Lose It: Adverse Possession and Economic Development by Itzchak Tzachi Raz

This study explores how changes in U.S. laws on adverse possession between 1840 and 1920 impacted agricultural productivity and land use. Analyzing state-level legal reforms related to the time needed to claim adverse possession, Raz found that concerns about absentee ownership led to better land use, increased farming output, and improved access to funds for small landowners. The research challenges the idea that strong property rights always boost development, suggesting that some rigidity in property rights can hinder optimal land allocation. Adverse possession during periods like westward expansion in the U.S. helped redistribute land, promote its productive use, and encourage fairer land ownership. By looking at legal flexibility in a land-limited economy, this paper enriches discussions on property rights, institutions, and inclusive economic growth.

Adverse Possession: Right or Theft? - Analysis of Property Law by Manav Bhalla

This paper looks at adverse possession in Indian law. It talks about how this concept came from English law, went through colonial rules and Indian law, and is now based on the Limitation Act of 1963. It explains how people can own land they've occupied for a long time, even if they didn't originally own it. The paper discusses reasons for this, like lack of land, protecting rural landowners, and supporting squatters' housing rights. It also mentions criticisms, such as rewarding trespassers, undermining real owners, and risks from land grabbers. It mentions changes in how courts see adverse possession, from a defense to an offense. There are concerns about human rights and the environment, suggesting that the current law may not match modern justice and land protection ideas. The author suggests reforms like only recognizing honest possession, extending time limits, or adding costs to gain ownership, to match current ethical and legal standards.