Adverse possession is based on the theory or presumption that the owner has surrendered the property to the adverse possessor upon the owner’s acquiescence to the hostile acts and claims of the person in possession. It follows that the sonic qualities of a typical opposing possession lie in the fact that it is open, continuous and hostile.
Interestingly enough, Section 27 of the Limitation Act, 1963 is an exception to the general principle of the right of limitation and is the origin of adverse possession. According to the aforementioned article, if a person fails to bring an action for recovery of possession, within a statute of limitations, his right to recover possession of that property also lapses. Thus, a true owner of the property in question then loses his ownership of the property. The property in question must also then be in the name of any other person or any other person must be entitled to it. Opponent possession therefore stems from such a scenario. If a person is in possession of property which is actually contrary to the interest of the true owner of the property and the true owner fails to bring an action for possession within a statute of limitations, then such person who is in possession adversely will then become the owner of the property in question by way of usufruct.
It is said that to claim ownership on the basis of adverse possession, one must prove that such adverse possession is open and uninterrupted to the enjoyment of the person claiming the adverse possession for more than 12 years, as the case argues by M. Venkatesh & Ors. v. Commissioner, Bangalore Development Authority, (2015) 10 Scale 27. In Karnataka Board of Wakf v. Government of India, (1995) 6 SCC 309, it was held that an owner would be deemed to be in possession of a property so long as there is no trespass. The owner’s non-use of the property, even for a long period of time, will not affect his title. But the situation will be changed when another person takes possession of the property and claims a right to it. Adverse possession is hostile possession by clearly asserting hostile title in denial of the true owner’s title.
It is also a well-established principle that a party claiming adverse possession must prove that their possession is “nec vi, nec clam, nec precario”, which means “without force, without secrecy, without permission”. Possession must be adequate in continuity, publicity and extent to show that their possession is contrary to the true owner. It must begin with a wrongful disposition of the beneficiary and be effective, visible, exclusive, hostile and continued for the legal duration. The physical fact of sole possession and the animus possidendi of holding as owner to the exclusion of the actual owner are the most important factors that must be considered in cases of this nature. The plea of adverse possession is not a pure question of law, but a question of mixed fact and law. Therefore, a person claiming adverse possession must show:
(a) on what date it came into possession,
(b) what was the nature of his possession,
(c) whether the factum of possession was known to the other party, (d) how long his possession lasted, and
(e) his possession was open and quiet.
A person who pleads adverse possession has no equity in his favour. Since he is trying to defeat the rights of the true owner, it is up to him to plead clearly and establish all the facts necessary to establish his adverse possession. The same is true in Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma, (1996) 8 SCC 128.
As per Mogha Pleadings Law, adverse possession is one of the defenses. The statute of limitations is 12 years against private land and 30 years against state land and begins from the date the defendant’s possession becomes unfavorable to the plaintiff. For usufruct, the person must recognize the title of true owner and establish his open and hostile possession without any interruption. It is not enough to plead that a party has been in adverse possession for 12 years, one must clearly allege how and when the adverse possession began. Such as the defendant dispossessed the plaintiff and has been in continuous possession ever since, or the defendant has been open and in continuous possession for more than 12 years to the knowledge of the plaintiff, or the defendant has been in continuous possession for more than 12 years so openly that the plaintiff was aware of his possession or should have been aware had he exercised due diligence.
As regards the applicable limitation period in terms of adverse possession, it was held that under section 65 of the Limitation Act 1963 the commencement point of limitation does not begin on the date on which the right of ownership arises in the plaintiff, but from the date on which the possession of the defendant becomes adverse as argued in Saroop Singh v. Banto (2005) 8 SCC 330. The same is reiterated in Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, (2004) 3 SCC 376 by the Honorable Supreme Court also.
Another important ingredient of the concept of adverse possession is “Animus Possidendi”, which means that unless the person owning the land has the required animus, the limitation period does not start. Based on the plethora of judgments on principles of law on this subject, what needs to be seen is not just whether the party is in possession, but whether the party has been in opposing possession for the legal period of 12 years and if it made their title in the field of costume perfect.
According to the same principles of law, he was tried in the Rama Shankar & Anr.v. Om Prakash Likhdhari & Ors., by the Honorable Allahabad High Court that:
“21. The principle of adverse possession and its consequences wherever it is attracted was recognized in the statute dealing with limitation. The first codified statute dealing with limitation was enacted in 1840. Act 14 of 1840 was in fact a enactment applicable in England but extended to the territory of the Indian continent which was under the rule of the East India Company, by an authority of the Privy Council in East India Company v. Oditchurn Paul, 1849 (Privy Council cases on appeal of the East Indies).
The statute of limitations prescribes the period at the end of which not only the judicial remedy is prescribed but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called “acquisitive prescription”. A prescription by which a right is extinguished is called “extinctive prescription”. The distinction between the two does not have much practical significance or substance. The extinction of the right of one party is often the way of acquiring it by another. The extinguished right is virtually transferred to the person who invokes it by prescription. Prescription implies that the thing prescribed is the property of another and is enjoyed at the expense of that other. In this respect, it must be distinguished from acquisition by simple occupation as in the case of res nullius. Vesting in such cases does not depend on occupation for a particular length of time.
Recently, the Honorable Supreme Court in Ravinder Kaur Grewal v. manjit kaur Civil Appeal No. 7764 of 2014 which was decided on August 7, 2019 ruled that:-
“The plea of acquisition of title by adverse possession may be taken by the plaintiff under section 65 of the Limitation Act and there is no prohibition under the Limitation Act 1963 to bring an action on the above basis in the event of a violation of the rights of a plaintiff.”
Therefore, a plaintiff may also plead adverse possession in an action for declaration of title and recovery of possession. Adverse possession is one of the ways in which title to land is acquired if certain ingredients are met for establishing it. To apply the concept of adverse possession, there should be continuous and uninterrupted occupation of the court. In accordance with Section 65 of the Limitation Act 1963, the prescribed period is 12 years for private land and the prescribed period in case of government is 30 years for land which is to be regarded as adverse possession. The starting point of limitation begins with hostility that would result in the denial of title to the land to the true owner of the land. It is likewise incumbent upon the party showing opposing possession to establish title on the basis of its continuous and uninterrupted possession. However, it is also essential to note that proof of adverse possession cannot be based on presumptions and probabilities, but requires factual evidence.
The writer is a lawyer at the Supreme Court