Introduction
In today’s rapidly evolving property landscape, it is essential for landowners, prospective buyers, and legal professionals to stay informed about the laws that can significantly impact their ownership rights in the property. One such area that has repeatedly come under public and judicial scrutiny is the issue of ‘adverse possession.’ With an increase in property-related disputes and encroachment cases, courts have been called upon to re-examine the fairness and implications of these long-standing legal principles related to property disputes. As questions of justice, fairness, and legal clarity w.r.t. ownership rights in properties continue to emerge, understanding the existing legal framework, judicial trends, and practical safeguards has become more important than ever.
What Adverse Possession Means
Adverse possession allows a person with no legal title to acquire ownership of immovable property by remaining in continuous, uninterrupted possession for a prescribed period. The idea flows from the maxim vigilantibus non dormientibus subvenit lex — the law helps those who are alert, not those who sleep on their rights. In plain terms, ownership is not just about documents. If the true owner does nothing while someone else openly occupies the land for years, the law may eventually side with the possessor.
The doctrine exists to bring certainty to property rights. It penalizes prolonged inaction and rewards consistent assertion of control. But it also creates tension, especially when lawful owners lose property simply because they failed to act in time.
Adverse Possession under the Limitation Act, 1963
Indian law does not expressly define adverse possession. Instead, it emerges through limitation rules. Section 27 of the Limitation Act, 1963 provides that once the limitation period for filing a suit for possession expires, the owner’s right to the property itself is extinguished.
Articles 64 and 65 of the Act set out how this plays out. Article 64 applies where possession is claimed on the basis of prior possession without title. The plaintiff must prove dispossession within twelve years. Article 65 applies where the claim is based on ownership title. Here, the owner must prove title, and the burden shifts to the defendant to establish that their possession turned hostile and continued uninterrupted for twelve years.
In short, limitation does not just bar the remedy. In adverse possession cases, it can erase the right itself.
Essential Conditions to Claim Adverse Possession
Not every long occupation qualifies. Courts insist on strict proof of each element.
First, possession must be continuous and uninterrupted. Any effective interruption by the true owner breaks the chain.
Second, the possession must continue for a fixed statutory period. This is twelve years for private property and thirty years for government property.
Third, possession must be hostile to the true owner. The occupier must assert rights inconsistent with the owner’s title, and the owner must have actual or constructive knowledge of this hostility.
Fourth, possession must be peaceful and open. Force, secrecy, or permissive occupation defeats the claim. Courts have consistently emphasized the classic requirements: possession must be adequate in continuity, public in nature, and clearly adverse to the owner’s rights.
Judicial Concerns and Criticism
Although laws in India aim to strike a balance between the rights of possessors and original owners, they have been criticized for occasionally delivering unfair outcomes that cause prejudice to the rightful owners. The doctrine, in some cases, may unconsciously reward trespassing while discouraging rightful owners from safeguarding their property. Moreover, the inherently subjective assessment of ‘hostile’ possession and the risk of fraudulent claims complicate the fair and consistent application of the law. Ensuring a just equilibrium between the protection of property rights and the prevention of unjust enrichment continues to be a persistent challenge for the Indian legal system. In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517: 2008 SCC OnLine SC 1439 the Hon’ble Supreme Court criticized the adverse possession as being highly unfair to the original owner of the property. A possessor who acquires property illegally may still benefit from adverse possession, leaving the rightful owner without remedy. The Court has therefore called for a review of the law to strike a fairer balance.
How Owners Can Protect Their Property
- Regularly visit and inspect the property: Make sure to check the property often so no one else starts using it without permission.
- Fence and mark boundaries: Put up a fence to show others that the land is private property.
- Legal Action: File complaint against the encroachment promptly.
- Written Agreements: When allowing others to occupy or use the immovable property, a written lease agreement should be executed to define legal rights and responsibilities.
Conclusion
Adverse possession is not designed to legitimize land grabbing. It exists to discourage neglect and bring finality to ownership disputes. Still, its misuse and the hardship it can cause are real. Courts continue to apply it cautiously, insisting on strict proof of every requirement.
For landowners, being aware of their rights and responsibilities is crucial. Regular inspection of property, keeping legal documents updated, and taking timely legal action in case of encroachment are important steps to avoid losing ownership due to inaction. Knowing the law helps property owners protect their interests and take informed decisions when disputes arise. As legal awareness increases, individuals will be better equipped to safeguard their property and prevent misuse of legal doctrines like adverse possession.
Original Source: https://www.maheshwariandco.com/blog/adverse-possession-in-india/