• Sun. Nov 28th, 2021

The Doctrine of Adverse Possession Explained


In India, owning a property is not an easy task. After saving up enough to buy a decent property, owners are always under a constant threat of losing their property through some scam or dispute. Did you know? If a property is occupied by someone for more than 12 years, they will be favoured towards it in the court of law, not the owner. This is known as adverse possession law. Find out how adverse possession of land works in India and how to file an adverse possession claim.

Adverse Possession

What is Adverse Possession in India?

What is Adverse Possession in India
(Adverse Possession in India)

As mentioned earlier, Adverse Possession in Land Law is a legal principle that was introduced to the Indian real estate markets and legal systems by the British Rulers. Adverse Possession means acquiring a property through unsolicited means. However, it’s an accepted method and common in India. According to the law of adverse possession, if a person continues to be in possession of a property for 12 years, they are granted the ownership rights to the property. In simple terms, if a tenant continues to occupy a unit for 12 years without any interruption from the owner, they get owner status for the property. The law was brought in to improve land usage but for 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 need to be aware of these adverse possession laws to avoid any hassle or dispute. 
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Adverse Possession Law

Adverse Possession Law
(Adverse Possession Law)

The law of Adverse Possession in India is governed by the principle of The Limitation Law of 1963. As per the law, if over a due course of time or period, if an appeal is not made to revise any limitation, the current scenario of titles continues. In terms of adverse possession, the period is defined to be 12 years. According to the Indian legal system, if a property owner fails to make a claim towards their property for 12 years, and the same tenant continues to occupy the property for 12 years, the ownership rights to the property is transferred to the tenant. 

Exceptions in Adverse Possession Law:

  1. If the owner is a minor.
  2. If the owner is mentally unwell.
  3. If the owner serves in the armed forces.

Property disputes continue to rise in the country and owners should be very careful to avoid such circumstances. Being aware of these laws will help the owner learn how to prove adverse possession in a court of law. 
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How to Prove Adverse Possession?

How to Prove Adverse Possession
How to Prove Adverse Possession

Although it’s considered to be an illegal act, the Indian legal system continues to reward the principles of adverse possession based on the sole fact that the property was neglected by the owner for 12 years. This could be due to the sheer lack of knowledge on the owner’s part and there are instances where the judiciary has sided with the owner. However, the trial went on for years and the hassle faced by the original owner could have been avoided. 

The honourable Supreme Court on Adverse Possession in 2019 stated “By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.’
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For proving Adverse Possession, these terms need to be explored: 

Continuity in adverse possession: If a property is taken through adverse possession, the possession should be uninterrupted for the specified period of 12 years.

Actual possession: The possessor must occupy the property completely through actual possession. Actual possession includes fencing the property, construction of the house, grazing cattle, erection of shed in the land

Exclusive possession: The occupier should prove sole ownership for 12 years towards the property. 

Open possession: The possession can’t be forced or without informing the owner or through their license. 

The possessor must prove the following in front of the court: 

  • The date of possession.
  • The possession was known to the public.
  • The nature of the possession.
  • The continuity of the possession.
  • The duration of the possession.

These are the important requirement to prove adverse possession 

Can Tenant Claim Adverse Possession?

Can Tenant Claim Adverse Possession
Can Tenant Claim Adverse Possession?

Tenancy through lease or rental agreement is generally not considered under the adverse possession law in India. However, under certain circumstances, if the lease has expired or if the owner has defaulted on particulars mentioned in the agreement, the tenants have taken leverage of the situation to file for ownership through adverse possession. The set timeline for the owner to take action is for 12 years. As soon as there is a breach in the contract, the owner should look for vacating the tenants to avoid adverse possession. If after the termination of the agreement, the tenant has paid rent to the owner in any form, they can’t apply for ownership through adverse possession. 
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Adverse Possession Examples

Adverse Possession Examples
(Supreme Court Statement on Adverse Possession)

Most of the rules and regulations of Adverse Possession are formulated through landmark cases. Let’s take a look at a few of these landmark cases and how they have shaped the current guidelines about adverse possession:

  1. Amarendra Pratap Singh v Tej Bahadur Prajapati

“A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over 12 years results into extinguishing of the latter’s title.” 

This important guideline was derived from this historic case. 

  1. SM Karim v Mst. Bibi

This landmark case established that adverse possession must be continuous, without force and a plea need tobe filed informing the period of the adverse takeover. 

  1. Karnataka Wakf Board v Government of India

It was established that the possessor needs to establish possession of 12 years without the motive of illegal occupancy but due to neglect by the property owner. 

  1. Dagadabai v Abbas Gulab Rustum Pinjari 

In this landmark case, it was established that the possessor must admit ownership of the suit after informing the owner.

  1. Mallikarjunaiah v Nanjaiah

The court stated, “Mere continuous possession, howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.”

It is very evident that the laws are in a state of judicial flux and need a revival code rather sooner than later. The rising number of property frauds and disputes can be avoided if the system is revised according to a uniform code. The laws and guidelines related to adverse possession have changed constantly and the verdict depends on the judicial bench. It’s advisable to avoid these circumstances. Contact the legal experts at NoBroker and get a detailed legal inspection of your property and documents. Click here to select a legal expert. 

FAQ?

Q1. What is Adverse Possession?

Ans. Adverse Possession is a legal principle that states if a tenant has occupied the property for 12 years and the owner fails to take any action against that, the tenant is granted ownership rights towards the property. 

Q2. Is adverse possession legal in India?

Ans. Yes, adverse possession is legal in India and it’s followed to make sure a land or property is in continued use. 

Q3. What are the exceptions to rules and guidelines of adverse possession in India?

Ans. Exceptions in Adverse Possession Law:
If the owner is a minor.
If the owner is mentally unwell.
If the owner serves in the armed forces.

Q4. How to file for adverse possession in Alabama?

Ans. In Alabama, the period of occupancy for claiming ownership is set at 20 years. After that, a tenant can claim ownership through adverse possession. 

Q5. What are the requirements to claim ownership through adverse possession in India?

Ans. The possessor must prove the following in front of the court: 
The date of possession.
The possession was known to the public.
The nature of the possession.
The continuity of the possession.
The duration of the possession.
These are the important requirement to prove adverse possession 

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Prakhar Sushant

With experience of working with various up and coming startups, Prakhar has an eye for the intricate details of any subject. He is an ECE graduate and has travelled and stayed in almost all parts of India. Read his blog to get exciting details and tips from the real estate ecosystem in the world.

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