What Is Adverse Possession Of Property Or Land in India?
India – A Liberal Democracy That Guarantees The Freedom Of The Individual
India is a democratic country with firm faith in liberalism and the freedom of the individual. Every citizen in this country enjoys rights and privileges, which is in line with developing his/her individuality, and which is not in contravention with the individual rights of the other citizens.
The Sensitive Issue Of The Right To Property
Among the plethora of rights enjoyed by the citizens of India, the right to the private ownership of property also stands very tall. It is this right which makes us a liberal democracy, while continuing to be a responsible republic with commitment to the ideals of socialism and equality.
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A very common type of private ownership is the ownership of houses in the urban scape, some of which are given to tenants on rent. In fact, the issues between the landlord and tenant occupies an important part of the contemporary legal disputes and litigation procedures.
An important aspect of landlord and tenancy issues is the adverse possession in land. Let us what the term actually implies and about its related developments.
Adverse Possession In Land – Is Adverse Possession Legal In India
Adverse possession in land law is a legal principle that was introduced into the Indian real estate markets and legal systems by the British rulers. Adverse possession means acquiring property by unwanted means. However, it is an accepted method and is common in India. According to the law of adverse possession, if a person continues to occupy a property for 12 years, he/she is granted the ownership right of the property.
The Specifics Of Adverse Possession In Land
In simple words, if a tenant continues to occupy a unit for 12 years without any interruption from the owner, he/she gets the owner status for the property. The law was brought in to improve land use, but over the years, adverse possession has given way to advance possession, a form of hostile possession where the rightful owner is denied any claim to their property. Property owners should be aware of these adverse possession laws to avoid any hassle or dispute.
Also read Property Title Verification In India – The Process, Methods & Other Aspects.
Law Of Adverse Possession As Per The Doctrine of Limitation Act
The law of adverse possession in India is governed by the Doctrine of Limitation Act of 1963. As per law, if during the time or period, if an appeal is not made to modify any of the limits, the present scenario of headings is maintained. In the context of adverse possession, the period is defined as 12 years. As per the Indian legal system, if a property owner fails to lay claim to his property for 12 years, and the same tenant continues to occupy the property for 12 years, then the right of ownership of the property is transferred to the tenant. goes.
Some Exceptions
But There Are Some Exceptions in Adverse Possession Law:
If the owner is a minor.
If the owner is mentally unsound.
If the owner serves in the armed forces.
Owners Should Be Aware Of This Law
Property disputes are on the rise in the country and owners should be very careful to avoid such situations. Being aware of these laws will help the owner learn how to prove adverse possession in court.
The Logic Behind Adverse Possession of Land
Although it is considered an illegal act, the Indian legal system continues to award principles of adverse possession based on the sole fact that the property was neglected by the owner for 12 years. This may be due to lack of knowledge on the part of the owner and there are many instances where the judiciary has sided with the owner. However, the trial went on for years and the trouble to the original owner could have been avoided.
The Directive Of The Honourable Supreme Court
Hon'ble Supreme Court on Adverse Possession in 2019 said, "From the culmination of title upon termination of title of owner, a person cannot be remedial. If he is evicted by the owner after losing the right by adverse possession" he can be evicted by the plaintiff on a plea of adverse possession.Similarly, any other person who has evicted the plaintiff from full ownership by way of adverse possession can also be evicted when unless such other person has taken full ownership by adverse possession against such plaintiff. Similarly, in the case of infringement of any of his rights under the other sections, a plaintiff who has completed title by adverse possession shall, can file suit and prosecute.
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How Do I Apply For Adverse Possession Of Property In India?
The Conditions That Prove Adverse Possession
To prove adverse possession, these conditions need to be ascertained:
Continuity in adverse possession: If a property is taken by way of adverse possession, the possession must be uninterrupted for a specified period of 12 years.
Actual Possession: The owner must completely take possession of the property by way of actual possession. Actual possession includes fencing of property, construction of house, cattle grazing, construction of shed in the land
Exclusive Possession: The occupier must prove sole proprietorship for the property for 12 years.
Open Possession: Possession cannot be given by force or without informing the owner or through their license.
The Points To Be Provided & Proved Before The Court:
The holder must prove the following before the court:
Date of possession.
The public was aware of the occupation.
Nature of possession.
Continuity of possession.
Period of possession.
Can the tenant claim adverse possession through lease/rental agreements?
Tenancy through lease or rental agreement is generally not considered under adverse possession law in India. However, in certain circumstances, if the lease has expired or if the owner has defaulted on the details mentioned in the agreement, the tenants take advantage of the situation to file for ownership by way of adverse possession.
Frequently asked questions
What is the 12 Year Property Rule in India?
What is the 12 Year Property Rule in India?
The "12 Year Property Rule" in India refers to the concept of adverse possession under the Limitation Act, 1963. According to Section 27 of the Act, if a person (the adverse possessor) has been in continuous and uninterrupted possession of a property for 12 years, they can claim legal ownership of that property, provided their possession is hostile, actual, open, and notorious against the true owner. The true owner loses the right to reclaim the property if they do not take legal action to remove the adverse possessor within this 12-year period.
What are the 5 Requirements for Adverse Possession in India?
What are the 5 Requirements for Adverse Possession in India?
To successfully claim adverse possession in India, the following five requirements must be met:
-
Actual Possession:
- The adverse possessor must physically occupy the property and use it in a manner typical of an owner.
-
Open and Notorious Possession:
- The possession must be visible and obvious, so the true owner is aware or should be aware that someone else is possessing their property.
-
Exclusive Possession:
- The adverse possessor must have exclusive control over the property, without sharing possession with the true owner or the public.
-
Hostile Possession:
- The possession must be without the permission of the true owner and against their interests. It should be clear that the possessor is claiming the property as their own.
-
Continuous and Uninterrupted Possession:
- The possession must be continuous and uninterrupted for the entire statutory period of 12 years. Any break in the possession can reset the clock for the adverse possession claim.
What is the Latest Supreme Court Decision on Adverse Possession?
What is the Latest Supreme Court Decision on Adverse Possession?
One of the significant recent decisions by the Supreme Court on adverse possession is from the case of Ravinder Kaur Grewal vs. Manjit Kaur & Ors. (2019). In this judgment, the Supreme Court clarified several aspects of adverse possession:
- Right to Claim Adverse Possession: The Court held that a person claiming adverse possession must establish a specific date from which their possession became adverse to the true owner.
- Burden of Proof: The burden of proof lies on the adverse possessor to show that their possession is continuous, uninterrupted, and meets all the criteria for adverse possession.
- Quality of Possession: The possession must be actual, open, notorious, hostile, and exclusive for the statutory period.
The Court emphasized that adverse possession cannot be claimed lightly and must be proven with substantial evidence.
Who Cannot Claim Adverse Possession?
Who Cannot Claim Adverse Possession?
Certain individuals and entities cannot claim adverse possession:
-
Tenants and Licensees:
- Individuals who occupy the property with the permission of the owner, such as tenants and licensees, cannot claim adverse possession.
-
Co-Owners:
- Co-owners of a property cannot claim adverse possession against each other unless there is a clear and explicit denial of the other co-owner's rights.
-
Government Property:
- Generally, adverse possession cannot be claimed against government-owned property. Specific statutes and laws protect government land from adverse possession claims.
-
Minors and Persons with Disabilities:
- The statutory period for adverse possession does not run against minors, persons with disabilities, or individuals with legal incapacity until the disability is removed.
-
Trust Property:
- Property held in trust cannot be claimed through adverse possession by the trustee or beneficiaries.
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Frequently asked questions
What is the 12 Year Property Rule in India?
What is the 12 Year Property Rule in India?
The "12 Year Property Rule" in India refers to the concept of adverse possession under the Limitation Act, 1963. According to Section 27 of the Act, if a person (the adverse possessor) has been in continuous and uninterrupted possession of a property for 12 years, they can claim legal ownership of that property, provided their possession is hostile, actual, open, and notorious against the true owner. The true owner loses the right to reclaim the property if they do not take legal action to remove the adverse possessor within this 12-year period.
What are the 5 Requirements for Adverse Possession in India?
What are the 5 Requirements for Adverse Possession in India?
To successfully claim adverse possession in India, the following five requirements must be met:
-
Actual Possession:
- The adverse possessor must physically occupy the property and use it in a manner typical of an owner.
-
Open and Notorious Possession:
- The possession must be visible and obvious, so the true owner is aware or should be aware that someone else is possessing their property.
-
Exclusive Possession:
- The adverse possessor must have exclusive control over the property, without sharing possession with the true owner or the public.
-
Hostile Possession:
- The possession must be without the permission of the true owner and against their interests. It should be clear that the possessor is claiming the property as their own.
-
Continuous and Uninterrupted Possession:
- The possession must be continuous and uninterrupted for the entire statutory period of 12 years. Any break in the possession can reset the clock for the adverse possession claim.
What is the Latest Supreme Court Decision on Adverse Possession?
What is the Latest Supreme Court Decision on Adverse Possession?
One of the significant recent decisions by the Supreme Court on adverse possession is from the case of Ravinder Kaur Grewal vs. Manjit Kaur & Ors. (2019). In this judgment, the Supreme Court clarified several aspects of adverse possession:
- Right to Claim Adverse Possession: The Court held that a person claiming adverse possession must establish a specific date from which their possession became adverse to the true owner.
- Burden of Proof: The burden of proof lies on the adverse possessor to show that their possession is continuous, uninterrupted, and meets all the criteria for adverse possession.
- Quality of Possession: The possession must be actual, open, notorious, hostile, and exclusive for the statutory period.
The Court emphasized that adverse possession cannot be claimed lightly and must be proven with substantial evidence.
Who Cannot Claim Adverse Possession?
Who Cannot Claim Adverse Possession?
Certain individuals and entities cannot claim adverse possession:
-
Tenants and Licensees:
- Individuals who occupy the property with the permission of the owner, such as tenants and licensees, cannot claim adverse possession.
-
Co-Owners:
- Co-owners of a property cannot claim adverse possession against each other unless there is a clear and explicit denial of the other co-owner's rights.
-
Government Property:
- Generally, adverse possession cannot be claimed against government-owned property. Specific statutes and laws protect government land from adverse possession claims.
-
Minors and Persons with Disabilities:
- The statutory period for adverse possession does not run against minors, persons with disabilities, or individuals with legal incapacity until the disability is removed.
-
Trust Property:
- Property held in trust cannot be claimed through adverse possession by the trustee or beneficiaries.
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