An analysis of laws related to Adverse Possession: Threat to real owner

By Anupam Pandey

Abstract

You may be flabbergasted to find out, that under certain circumstances, a trespasser can come onto your land, occupy it, and gain legal ownership of it. The legal terminology for this is “adverse possession.”

We are part of a society where everything is governed and is in order. Laws are there in our society to make us disciplined and if any injustice happens to us we can approach the court of law. Adverse possession is aide-memoire to the owner of the property to be cognizant of their interest in the property. We must remain alert and aware about the property unused for longer than statutory limit otherwise you may lose your paper ownership on your property.

1. An understanding of Adverse Possession

Adverse possession is a doctrine which is defined as “a trespasser in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a necessary period, as defined by a statute of limitations”.

Adverse possession may be a term that’s utilised in our legal system when someone acquires ownership of movable or immovable property by continuous use of it. This means that the real owner of the property can be transferred to anyone who uses the land without the information of the owner and have the intention to acquire it. Situation of adverse possession arises when a person who owns a particular property, lets a trespasser to inhabit that property as a result of inattention. All intruders must be evicted within a statutory period of limitation.Adverse possession is well-defined method of gaining legal title over real property by the actual, open, hostile, and continuous possession of it to the exclusion of its true owner for the period prescribed by state law.

Supreme Court stated about adverse possession within the case of Amarendra Pratap Singh V Tej Bahadur Prajapati[1] as: “A person, though having no right to enter into possession of the property of somebody else, does so and continues in possession fixing title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on a part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.”

2. Historical overview of Adverse Possession

Historical recognition of this doctrine way back to about 2000 B.C. within The Code of Hammurabi, which states “If a chieftain or a person leaves his house, garden, and field and somebody else takes possession of his house, garden, and field and uses it for 3 years and if the main owner return and claims his house, garden, and field, it shall not be granted to him, but the person who has taken custody of it and used it shall continue to use it.[2]”Ancient Romans believed an individual who possessed land nurtured the spirit of the land and gained a greater “ownership” in the land than the title owner.

The Statute of Westminster[3], in 1275, limited actions for the recovery of land by precluding potential suitors from establishing dated claims, the earliest codification of adverse possession in English law. 

In early England, the king generally owned all the land, but when disputes between private individuals began to arise, land records were often poor and literacy was rare, so possession of the land was often the finest evidence of ownership. Thus, the doctrine of adverse possession served to clear title to real assets. In 1639, the statute of limitations for these sorts of suits in England was 20 years.

This principle has been well settled by the Privy Council as back as in 1867 in the case titled Gunga Govind Mundal and others v. The collector of the Twenty-Four Pergunnahs and others.[4]

3. Statutes related with Adverse Possession

Adverse possession doctrine is applied when the actual owner of the immovable property leaves his property unattended for a specific period. This specific period comes under the Limitation Act, 1963. This Act sets the bar within which a person can claim his right over the property. It is based on the presumption that the actual owner of the property was not aware of his right over the immovable property. 

It is defined undertheLimitation Act, 1963 which specifies the period to which a claim of title over the immovable property is applicable.

• For Private PropertyArticle 65 of Schedule I Part V – Suits relating to Immovable Property of this Act specifiesthe statutory period of limitation that is allowed for the possession in case of immovable property or any interest therein is 12 years. Thecomputation of 12 years starts when the possession of the owner becomes adverse to the trespasser.

• For Government,State, or public propertyArticle 112 of Schedule IPart IX – Suits relating to miscellaneous matters of this Act specifies the statutory period is 30 years from the date the trespasser occupies the property.

There are some justifying circumstances wherein the limitation period is not taken into account when the statutory period is being considered.

There is an exception to the rule. Under following circumstances adverse possession cannot take place if the original owner is:

1. Minor, or
2. of unsound mind, or
3. Serving in the armed forces, or
4. There is pending litigation between the owner and the claimant.

3.1 Legitimate requirements for an adverse possession claim to land

• Hostile

• Actual

• Open and notorious, and

• Exclusive and continuous for a certain period.

• Hostile Claim

The word “hostile” doesn’t mean that the trespasser rides in on a horse with six-guns blazing. When it comes to adverse possession courts follow one of three legal definitions of “hostile”.

1. Simple occupation: This rule (followed by most states today) defines “hostile” as the mere occupation of the land. The intruder doesn’t have to know that the land belongs to some other person.
2. Awareness of trespassing: This rule requires that the trespasser be aware that his or her use of the property amounts to trespassing (meaning the trespasser has no legal right to be on the property).
3. Good faith mistake: A few states follow this rule, which requires the trespasser to have made an innocent good faith mistake in occupying the property in the first place, such as by relying on an invalid or incorrect deed.

Actual Possession of the Land

The second prong of the test that courts apply requires that the trespasser possess the property (be physically present) and treat it as if he or she were an owner. This can be recognized by authenticating the trespasser’s efforts to maintain and make improvements to the property.

Open and Notorious Possession

“Open and notorious” means that it must be obvious to anyone — including a property owner who makes a reasonable effort to investigate — that a trespasser is on the land. Examples would be a neighbor who puts a fence up slightly on the next-door property or who poured a concreted driveway two feet over the boundary line.

Exclusive and Continuous Possession

The intruder must possess the land entirely that is the trespasser cannot share possession with strangers or the owner and without interruption for a certain period. (That means the trespasser cannot give up the use of the property, return to it later, and try to count the time that the property was abandoned as part of the “continuous” possession period.) The period that’s required varies by state.

In addition to the legal requirements discussed above, some states also require the trespasser to have paid the local property taxes on the land during a specified period.

Upon expiry of statutory period, the real owner will bow out all legal rights over the property, and the claimant can deal with the property in any manner that he or she requires.

There are three ways where adverse possession cannot be claimed:

1. In the cases of permissive possession, the plea of adverse possession cannot be taken by a party. (Thakur Kishan Singh v Arvind Kumar[5])
2. When the possession of the land is given by one party to another as part performance according to an agreement to sell as provided under Section 53A of the Transfer of Property Act, 1882. (Mohan Lal (deceased) through his LRs. Kachru & Ors. v Mirza Abdul Gaffar & Anr.[6])
3. When a person is the co-owner of the land concerning which it is claiming ownership by way of adverse possession. A co-owner of a property is only acting as a representative on behalf of all the other co-owners. (Exception to this was the Hon’ble Supreme Court in the case of Vidya Devi @ Vidya Vati (Dead) By LRs v Prem Prakash & Ors[7] held that a plea of adverse possession by a co-owner can be taken if that person can prove that he has ousted all the co-owners from the property coupled with all the other ingredients to constitute adverse possession.)

4. Judicial Stand

In the case of Karnataka Board of Wakf V Government of India[8] the Supreme Court of India observed that “in the eye of the law, an owner would be deemed to have a property as long there is no intrusion.”  Thus, under section 27 and section 65 of the Limitation Act, the right of the original owner of the land extinguishes if he does not interfere within the specified time limit.

In the case of SM Karim V Mst. Bibi Sakina[9] the equitable principle of nec vi nec clam nec precario (without force, without secrecy, without permission) followed, it was adjudicated that adverse possession must be adequate in continuousness, in publicity, and the scope and a appeal are required, to display when possession becomes adverse so that the initial point of limitation against the party affected can be found.

A two-Judge Bench in Gurudwara Sahib V Gram Panchayat village Sirthala and anr[10]case wherein a question arose whether the Plaintiff is in adverse possession of the suit land, the Supreme Court by referring to a High Courts’ findings held that even if the Plaintiff is found to be in adverse possession, it cannot seek a affirmation to the effect that such adverse possession has developed into ownership since the plea of adverse possession cannot be used as a weapon. The said interpretations of the Court run conflicting to anexcess of judgments of the Supreme Court as well as various other High Courts. The decision in Gurudwara Sahib (supra) has been trusted by the Court in various other cases.

It was observed inthe case of Bhimrao Dnyanoba Patil V State of Maharashtra[11], that unless enjoyment of the property is accompanied by adverse animus, mere possession for a long period even over a specified period in law would not be adequate to mature the ownership to the property by adverse possession.

In the case of Vidya Devi Vthe State of Himachal Pradesh[12] judgment where the Supreme Court gave judgment in favor of an old widow whose property has been acquired by the Himachal Pradesh government for road construction. The government took the ground of adverse possession but failed to pay reimbursement for 52 years. Justice Indu Malhotra cited that, “A welfare state cannot be permitted to take the ground of adverse possession, which allows a trespasser i.e. an individual guilty of a tort, or even a crime, to gain lawful title over such property for above 12 years. The State cannot be allowed to gain ownership over the land by invoking the doctrine of adverse possession to grab the property of its citizens”.

The Supreme Court has restated the need to take a relook. The Court, in PT Munichikkanna Reddy and Ors V Revamma, based its judgment observed in European Court of Human Rights (ECHR) in JA Pye (Oxford) Ltd V the United Kingdom, which had criticized the law of adverse possession and urged re-examination in light of changes in the law.

In the case of Hemaji Waghaji V Bhikhabhai Khengarbhai[13] the Supreme Court, criticized the law and observed that it was an irrational, illogical, and wholly disproportionate. The Supreme Court asked the Ministry of Law to take a relook at the law of adverse possession.

A Division Bench of Madras High Court in the case of The Secretary of State V ViraRayan[14] emphasised that the unawareness of the owner will not prevent the accrual of a title by prescription. The custody must be open and hostile sufficient to be capable of being acknowledged by the parties interested in the property (vide T. Anjanappa V Somalingappa)[15] In other words, the possession to become adverse to the owner must be so overt and open that the person against whom time runs, can, with the exercise of reasonable carefulness, be cognizant of what is happening.

In the case of Amrendra Pratap Singh V Tej Bahadur Prajapati & Ors[16] the method of acquisition of paper ownership by adverse possession springs into action essentially by default or inaction of the owner

It was held in the case of Ravinder Kaur Grewal V Manjit Kaur[17] that “We hold that a person in possession cannot be ousted by another person except by due procedure of Law and after 12 years’ period of adverse possession is over, even titleholder’s right to expel him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person or owner as the case may be against whom he has agreed”.

It was further stated that “If he has been ejected by the title holder after having lost the claim by adverse possession, he may be ejected by the plaintiff by taking the plea of adverse possession. Likewise, any other person who might have ejected the petitioner having paper ownership by way of adverse possession can also be evicted until and unless such other person has ownership against such a claimant by adverse possession”.

“The plea for paper ownership by adverse possession is often taken by a petitioner under Article 65 of the Limitation Act and there’s no bar under the Limitation Act, 1963 to litigate on the above-mentioned basis in case of infringement of any rights of a petitioner.”

5. Ways to prevent Adverse Possession

If you are a property owner, keep an eye on your property. If you found any person has a potential adverse possession claim, revisit property tax records to see if this person (or anyone else) has paid tax payments on the property. To avoid a trespasser from gaining thetitle, the following steps should be taken:

• Posts “no trespassing” signs and blocks entrances with gates. Keep in mind that this is a good way to deter trespassers, but in many states, the fact that you have signs or gates won’t protect against a claim by a trespasser who takes possession of the land anyway.
• Document the permission given to someone to use your land, and get their physical acknowledgment. To elaborate, you might give someone permission for parking on your property, use a shortcut across your land or garden or grow crops. It will not only overthrow adverse possession rights, but alsoeasement rights (use permit) across your property.
• Proposal to rent the property to the intruder.
• Call the police.
• Hire a lawyer. You may need to file a lawsuit to eject the trespasser from the landlord or you may want a court to order a structure removed from your property. You must act before the intruder has been on your land long enough, under your state’s law, to make a successful adverse possession claim.

6. Effect of removal of Adverse Possession

• One viewpoint which has considerable merit is that the wholesale abolition of adverse possession would trigger practical problems affecting common people and bona fide possessors of property who may have no title documents. The multitude of people especially those in rural areas belonging to agriculturist families remains in possession for long whether by inheritance, purchase, or otherwise without having valid and legally recognized title deeds. The lack of a legal regime under which the titles are registered and the shoddy manner in which the land records are maintained by the concerned Departments of Government has made it difficult to those entering into land deals to know even through reasonable diligence the true owner of the land and the history of ownership. Rural societies live in their ancestral houses or enjoy possessory rights over plots of land from times long-established, genuine believing that they or their descendants are the true paper owners of the land. There is no means of knowing whether the land in question is Government land or the land over which the Government has a right of resumption or someone else has superior title over the land. At least the ordinary people do not know. Even authentic title holders who may have only the element of possession as the foundation for assuming or defending their rights may suffer if the concept of adverse possession is abolished or allowed to remain under stringent conditions. That the possession is “nine points of law” applies with great force to such categories of persons.
• On the other hand, the question may be legitimately asked as to why those who grab the land overnight by force or otherwise without the semblance of bona fides and color of the title should be allowed to get the title by adverse possession? Why should land theft or grabbing be made the basis for the deriving title because of open, hostile enjoyment for a long period? Should not the conduct of occupiers of land be taken into account? Moreover, what about those property owners who may not be tangibly available to evince an intention towards disrupting hostile possession.
• These questions do arise. In the ultimate analysis, there is perhaps a need to strike a fair balance between competing considerations in the process of considering the changes in the law if any.

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7. Conclusion

We live in a society where there is a large group of people who have trespassed for their livelihood. For their continued existence, these people have acquired land, built their houses, and stayed there for a long period to gain ownership of that land.

By abolishing this doctrine those who have taken care of this land would become homeless as there are caseswhere one has acquired land and settled without the knowledge of the real owner. This doctrine acknowledges the right of both owner and occupier by limiting the period under the Limitation Act, 1963. There is also another argument that those who are not physically present in the country i.e., NRIs, their property could be easily occupied by relatives or others.

There are so many other instances where the inhabitant has taken the plea of adverse possession but with every judgment, the definition of this doctrine has changed. The objective of attaining paper ownership over the property is the core element of this doctrine.

In the judgment of Vidya Devi Vs. The State of Himachal Pradesh[18], it was made clear that although the doctrine of adverse possession is given in favor of those who occupy the land for a specific period prescribed under the Limitation Act, 1963, there is an exception to this doctrine which cannot be misused for one’s interest. 

Many global Constitutions are equipped towards protecting private property rights which is contradictory to the doctrine of adverse possession. Adverse possession presumes the claimant’s possession is actual, open, notorious, hostile, exclusive, and continuous for the span of the statutory period. The doctrine of adverse possession is one of the most uncommon concepts in the law where it rewards an evil doer for his evils.

However adverse possession seems to be justified because it brings certainty to land ownership, boundaries and reassures the use of the land for the benefit of the society, and avoids collectionof suits. It also avoids the acquisition of title by robbery.

Those conflicting to adverse possession describe it as anancient method of acquiring land without paying for it. Other critics tend to find adverse possession contrary to the contemporary registration principle whereby land title is conferred by registration only and not by possession. However, merit in adverse possession rests in its capacity to reward a diligent trespasser for his wrong and penalize the negligent and dormant owner for sleeping upon his rights. Critics have viewed adverse possession as an infringement on the rights of the landowner and an assault on the renowned land registration principle of indefeasibility of title to land.

One effective way Landowners should use to avoid adverse possession is by giving permission to trespassers to use their land or asking them to pay rent for use of the land.

The adverse possession statutes permit the rapid development of ‘wild’ lands with the weak or unspecified title. It helps in the Doctrine of Administration also as it can be an effective and efficient way to remove or cure clouds of title which with memories grow dim and evidence becomes unclear. The possessor who maintains and improves the land has a more valid claim to the land than the owner who never visits or cares for the land and uses it.

Having regard to the above legal and factual background and the views expressed by the Supreme Court, it is considered necessary to get responses from the public, especially, the Jurist, lawyers, legal academicians, and bureaucracy on various issues concerning adverse possession.

This law is in a state of judicial instability and requires significant legislative action to settle the confusion. Considering the doctrine of adverse possession, the law needs to be recalled. However, a period of 12 years is inadequate and does not conform to international statues or Article 112 of the Limitation Act, 1963 itself. The period of limitation should be increased from 12 years to a substantial period which should be in an agreement or near agreement with International statutes and the period mentioned in Article 112 of the Limitation Act, 1963.

Adverse possession seems to have outlived its value and necessity in modern society where the philosophy of legal systems over property is configured towards protecting private property rights. Some studies have described adverse possession as a debilitating experience with the risk of encouraging run-ins on other people’s property by those who desire free things.

In my opinion, adverse possession should be allowed only in cases where a claim made before a court of law goes unchallenged by the true landowner.

The Author is a Fourth year Law Student of Lords Universal College of Law, Mumbai [email protected]

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[1]Appeal (civil)  11483 of 1996

[2] Code of Hammurabi, c. 1780 BCE,  translated by L. W. King,

[3]Westminster Statute 3 Edw. I, c. 39 (1275)

[4]11 M.I.A. 212

[5](1994) 6 SCC 591

[6](1996) 1 SCC 639

[7](1995) 4 SCC 496 

[8] Appeal (civil)  16899 of 1996

[9]1964 AIR 1254

[10](2014) 1 SCC 669

[11]AIR 2002 Bom 80, 2003 (3) BomCR 150, (2003) 1 BOMLR 322.

[12]Civil Appeal Nos. 60­61 of 2020

[13] Civil Appeal no. 1196 OF 2007

[14] ILR 9 Mad. 175

[15] 2006 7 SCC 570

[16] Appeal (civil)  11483 of 1996

[17]2019 SCC OnLine SC 975

[18]Civil Appeal Nos. 60­61 of 2020

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