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 the adverse possession law. Find out how adverse possession of land works in India and how to file an adverse possession claim.

What is 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 Meaning: 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

The law of Adverse Possession in India is governed by the principle of The Limitation Law of 1963. As per adverse possession under limitation act, 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. These are the basic rules of adverse possession limitation act in India. 

Essentials to Prove Adverse Possession

If one intends to establish adverse possession in the Limitation Act of 1963, the burden of proof will rest on them. To successfully establish adverse possession, the following elements must be proven in court:

1. Date of possession: The date on which adverse possession in India of the property began must be established. This date is critical as it determines the 12-year statutory period required for adverse possession.
2. Knowledge of owner and neighbours: It is necessary to demonstrate that the true owner had knowledge of the possession and the date when they became aware of it. Additionally, it is essential to establish that immediate neighbours were aware of the possession and the date when they became aware of it.
3. Peaceful possession: The possession must have been peaceful and not obtained by coercion. The possession must have been in opposition to the true owner’s expectations.
4. Lack of action by the owner: It must be proven that the true owner did not take any action against the possession despite having knowledge of it. It must be proven beyond reasonable doubt that the owner was aware of the possession.
5. Exceptions: It is also necessary to demonstrate that none of the exceptions to the rule of adverse possession are applicable in the case.
6. Continuous possession: It must be established that the possession of the property was continuous without any interruptions by the owner or any other person.

When Can Adverse Possession Not Be Claimed?

Adverse possession may not be claimed in certain circumstances, as exceptions exist in the doctrine of adverse possession.
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1. The possessor cannot claim adverse possession if they had no ulterior motive or animus possidendi to exclusively possess the property, or if there is a fiduciary relationship between the landlord and tenant.
2. If the tenant was permitted by the landlord to possess the property, it will not be considered adverse possession. However, if the landlord terminates the permissive possession and the tenant does not vacate the property, they may be liable for wrongful possession and may need to pay compensation.
3. Adverse possession cannot be claimed if there is no valid claimant for the property, i.e., if nobody is claiming ownership of the property. In such a case, the right over the property cannot be acquired through adverse possession.

Documents Required to Prove Adverse Possession in India

To prove adverse possession in India, the following documents are typically required:
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1. Property deed or title: The deed or title of the property, along with the survey number and details of the location, is essential to establish the ownership of the property.
2. Tax receipts: The property tax receipts for the duration of the adverse possession, which proves that the possessor has been paying taxes and has been in possession of the property.
3. Utility bills: The utility bills like electricity, water, and gas bills for the duration of possession can help establish the exclusive possession of the property.
4. Affidavits from witnesses: Affidavits from neighbours and witnesses who have seen the possessor in exclusive possession of the property for the statutory period can be used to prove adverse possession.
5. Other relevant documents: Any other documents that establish the continuous, exclusive, and peaceful possession of the property by the possessor can be used as evidence to prove adverse possession.

Exceptions to the doctrine of adverse possession

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 and how to prove possession of land.
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Steps to Save your property from adverse possession: How to Prove Adverse Possession in India?

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.’

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?

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. 

Difference Between Adverse Possession and Homesteading

Point of Difference	Adverse Possession	Homesteading
Ownership of Property	The property is owned by someone else, and possession is obtained unlawfully by the possessor.	The property has no legal owner, and ownership is obtained by being the first person to claim and use the land.
Transfer of Ownership	Ownership is transferred to the possessor after 12 years of continuous possession, provided that the true owner did not take any action to reclaim the property.	Ownership is obtained by the first person who claims and uses the land, regardless of the duration of possession.
Neglect of Original Owner	Ownership is transferred due to the neglect of the original owner to take action against the possessor.	There is no original owner to neglect or take action against the possessor.
Purpose	Formalises the legal concept of squatter’s rights.	Formalises the traditional Homestead Principle, which allows individuals to acquire ownership of resources found in nature by using or possessing them.

Adverse Possession Examples

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 to be 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. 

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