The concept of adverse possession relates to the process of acquisition by the person in possession of the property despite not being the real owner. Property ownership is certainly desired by all of persons but this desirable position comes with a lot of complexities. Adverse possession is when the true owners of property loses their ownership rights owing to inaction to remove a trespasser within a statutory period from the property. When the statutory limitation period lapse for eviction the real owner is banned from taking any legal action to repossess the property and the trespasser acquires the title to the property by adverse possession. The limitation period for possession of the property as stipulated in Section 65 of Limitation Act, 1963, If the possessor remains in continuous possession of the property for 12 years without the permission or interference of the owner then the title of the property vested in the possessor and 30 years in case of Government/ public/state property from the date since the trespasser adversely possesses the property of the real owner. However in certain cases the period is suspended and is not taken into for the calculation of the statutory period such as when there is a pending litigation between the applicant and the owner over the same property where the owner is minor or unsound mind or where the owner is serving in the armed services. In occupying any property does not confer ownership in normal course the occupant can claim property title in case of an adverse possession. In such type cases it is presumed that the possession was permissible legally unless proved otherwise. The necessary requirement of possession under adverse possession is that the possession should not have been obtained by force. The main principle on which the Limitation Act is based is that ‘limitation extinguishes the remedy, but not the right’. This means that in case of an adverse possession the original owner may have the title over that property but the real owner loses the right to claim such property right through a court of law.
The time period
For applying this law the time period is calculated from the date the claimant is in possession of the property. The possession of the property should be continuous, and unbroken for the entire duration. The claimant must have the sole possessor of the property. However, there are certain exceptions to this rule as well.
Some essential requirements for claiming under adverse possession are:
- Hostile possession: The intention of the claimant of the property must be to acquire rights through means of adverse possession. These rights are acquired at the expense of the rights of the real owner. There must be an express or implied denial of the real owner’s title by the possessor. Constructing any boundary wall around the property can be means of asserting the possession.
- Public knowledge: For this purpose the public at large must know about the possession of the claimant. This condition is put so that the real owner has adequate means to know that someone has a possession of his property and gets reasonable time to act. However the claimant is not bound to inform the original owner about it.
- Actual possession: There must be actual possession during the period of limitation. By physical acts like harvesting crops, repairing the building, planting and cutting trees, erection of shed, etc, could determine the actual possession can be. The Claimant could not claim possession over the property without being physically possessing it.
- Continuity in adverse possession: The Claimant must have peaceful, unbroken, uninterrupted and continuous possession of the property for entire statutory period of limitation. Any breakage in the possession will extinguish the claimant rights.
- Exclusivity possession: The Claimant must be in sole possession of the property. The possession cannot be shared by different persons or entities for the claimed statutory period of limitation.
There have been landmark judgments on adverse possession.
The case of Karnataka Board of Wakf versus the Government of India and others in 2004 clarified the adverse possession. It is stated that the onus is on the claimant to prove the necessary facts and evidence to claim property title.
A person who has claiming adverse possession has to show the following before the court:
- The date of possession
- The nature of the possession
- The possession was known to public
- The duration of the possession
- The continuity of the possession
In the case of State of Haryana versus Mukesh Kumar & others case in 2010 the Supreme Court decided the matter in favour of the actual owner of the property and said that the law of adverse possession was outdated and should be seriously looked into.
Change that is required
Our law needs to revamp this archaic law because it goes against justice. It punishes the property owners and rewards the trespassers or claimant instead of doing the opposite. However till the change is done properties real owners must be aware and keep an eye over their property and must to have take timely action against any illegal act of trespassing.