ADVERSE POSSESSION LAW IN INDIA
The concept of adverse possession related to land being taken by force or conquered by feudal lords, barons and conquerors from the poor who could not protect their right and title over those lands. The concept is more than a century old in India.
The law is based on three principals
- The person who maintains a land has a better title over the land than the person who is bothered about the land at all.
- title of the land should not be kept in abeyance for a long period of time i.e. a situation should not arise in which the title holder of the land is not own.
- it is presumed that the actual title holder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quiet and not taking any action against the said person as provided under the law.
The existence on the concept can be traced back in the Hammurabi which contained 282 rules including Rule 30 which somehow closely resembles the law of adverse possession which we even follow till date.
It means that since the person who had a right to possession has allowed his right to be extinguished by his inaction, he cannot recover the property from the person in adverse possession and as a necessary corollary thereto, the person in adverse possession is enabled to hold on to his possession as against the owner. The Burdon of proof lies on the party that claims the adverse possession
Essentials of adverse possession.
- The nature of possession of land should be exclusive, continuous, uninterrupted and it should be actual physical possession and not merely constructive possession over the land.
- The possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession.
Effects of adverse possession
Adverse possession alone does not result in a transfer of legal title, but once a person meets the statutory requirements for adverse possession, he or she may initiate a quiet title action and obtain legal title to the property.
Situations where adverse possession cannot be plead
- In the cases of permissive possession the plea of adverse possession cannot be taken by a party.
- When the possession of the land is given by one party to another as part performance in pursuant to an agreement to sell as provided under Section 53A of Transfer of Property Act, 1882.
- When a person is the co-owner of the land in respect to which it is claiming ownership by way of adverse possession
- Title to government-owned land may not be obtained by adverse possession.
- In Vidya Devi v State of Himachal Pradesh & Ors 2020 The court held that the plea of adverse possession cannot be taken up by the state while justifying its forcible expropriation of private property without following due procedures of law.
- Gurtej Singh v Zora Singh(dead) through Lrs & Ors 2009 The court stated that plea of adverse possession can be taken by plaintiff as well.
- Dagadabai (Dead) By Lrs v Abbas @ Gulab Rustum Pinjari 2017 It was held that a person first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession
Whether any relook required in the present law?
Some consider it as legalized land theft
The Hon’ble Supreme Court in Hemaji Waghaji Jat v Bhikhabhai Khengarbhai Harijan & Ors 2009 observed that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate.
Keeping in view of the above mentioned judgments passed by the Hon’ble Supreme Court, the Law Commission of India prepared a consultation paper cum questionnaire having 11 questions related to adverse possession of immovable property.
Till the time any changes are brought by the legislatures the current provisions of law and precedents would have to be followed in the country.