ABSTRACT
It is widely understood that a person who owns land or any other property has the right to possess, maintain, and manage it as they see fit. In other words, they are free to decide however they want about the situation. Because adverse possession is a negative and consequential right that only arises from the true owner’s negligence, the Limitation Act, of 1963 does not define it. In this article, we will define adverse possession accurately, capture its essence, and talk about how it has changed over time. We will also go over the idea or reasoning behind adverse possession from a historical standpoint. The Hammurabi Code, written in 2000 BC, is where the idea of “title by adverse possession” first appeared. The Property Limitation Act of 1874 was a significant turning point in its development as the statute of limitations in England. This paper focuses on the law regarding adverse possession in our country as well as grounds for claiming ownership through adverse possession conditions that must be met before a tenant of a rented property can claim adverse possession.
INTRODUCTION
Adverse possession basically refers to when a tenant uses the owner’s property when they are not legally permitted to do so overtly, that is, without making any attempt to hide it from the owner. In such a case, they would lose their right to claim the property by filing a lawsuit in a court of law after this term has expired if they continue to hold the property illegally for more than 12 years and the owner, despite having the same, does not take any action over these years. As a result, the owner of the property will, through adverse possession, obtain a prescriptive title to the land. This idea is based on the legal maxim “vigilantibus non-dormientibus subvenit lex,” which states that only citizens who are actively exercising their rights are favoured by the law, not dormant or unconcerned citizens. Due to the possibility that this idea could occasionally be unfair to the property’s legitimate owner, it is subject to some exceptions. However, the landlords chose not to exercise their rights in this circumstance. Consequently, they won’t be permitted to strengthen it or return to their land after a considerable amount of time has passed. The main difference between adverse possession laws in the USA, UK, Germany, Hungary, Denmark, Spain, and France, among others, is the limitation periods. In India, the Limitation Act 1963, as well as Section 27, Article 64, and Article 65 of its schedule, contain provisions governing the limitation period and the law of adverse possession.
Acts that do not constitute Adverse Possession
First off, where a person has been given permission, the plea cannot be accepted. The Thakur Kishan Singh v. Arvind Kumar case 1995 AIR 73, 1994 SCC (6) 59, [1]which involved this situation, was upheld by the Apex Court. In this case, it has been decided that a permissive possession must be proven before it can become adverse. Additionally, proof of hostile animus and the fact that the property was taken without the actual owner’s knowledge must be provided.
Secondly a person cannot raise the defence if they are a co-owner of the property that they are claiming ownership over. This is so that a co-owner of a property does not assert that he is the sole owner of the property by pleading adverse possession, but rather that he is only acting as a representative of all the other co-owners.
However, Vidya Devi Vidya Vati (Dead) By LRs v. Prem Prakash & Ors 1995 AIR 1789, 1995 SCC (4) 496 [2]is an exception to this rule as well. In this case, the Apex Court stated and correctly held that a co-owner can assert adverse possession if he can demonstrate that all co-owners have been evicted from the property in addition to the other conditions necessary to establish adverse possession. According to this ruling, three requirements must be met in order to raise the defence of dismissal of the co-owner. These are listed below:
declaration of hostile animus
ongoing and unbroken possession of the party seeking removal,
and the exercise of absolute ownership rights in a way that is known to the other co-owners
ESSENTIALS TO PROVE ADVERSE POSSESSION
IMMOVEABLE PROPERTY
The person’s illegally possessed property must be immovable in nature, such as a house or a plot of land. However, no movable property is covered by the doctrine of adverse possession.
ACTUAL AND EXCLUSIVE POSSESSION
The person asserting adverse possession must actually possess it; that is, they must be present in person in order to assert adverse possession. The defence of adverse possession cannot be used by a party who is not physically present. Adverse possession requires entry or trespass onto the property as well as continued use of that property. Additionally, the tenant will have sole possession of the property, excluding the landlord.
UNINTERRUPTED POSSESSION
The person’s possession must be ongoing and unbroken. They won’t be able to assert adverse possession if they have had possession of the property but not continuously or if the owner has interrupted their possession.
POSSESSION FOR A DEFINITE PERIOD
The person’s possession must be ongoing and unbroken. They won’t be able to assert adverse possession if they have had possession of the property but not continuously or if the owner has interrupted their possession.
HOSTILITY TOWARDS THE OWNER
The person’s possessions ought to be hostile to him or her. They must have possession of and use the property, just as the owner and the original owner must be aware of this. The possessor must use the property completely against the owner’s wishes or in opposition. Additionally, the period of adverse possession also starts from the moment the owner learns that the tenant is in possession of the property illegally.
PEACEFUL AND NOTORIOUS POSSESSION
The person must peacefully possess the property. They shouldn’t use threats or coercion to compel the owner to give up that piece of property. It won’t fall under the umbrella of adverse possession in such a circumstance.
GROUND TO PROVE ADVERSE POSSESSION
According to the Limitation Act of 1963, the party asserting this defence has the burden of proving adverse possession. Before a judge, they would need to demonstrate the following in order to establish the adverse Possession:
The start date is used to calculate the 12-year period starting from the time the property was in their adverse possession.
Additionally, they must demonstrate the time at which the owner became aware of the adverse possession of the property.
They must also include the date on which the nearby neighbours first learned that the property was theirs.
They must demonstrate that the property was possessed in peace. It shouldn’t be taken from the owner under duress, and it should go against what the owner anticipates.
CONCLUSION
Over time, there have been several modifications made to the adverse possession doctrine. However, it might still give the land’s occupant an unfair advantage over the owner. Even if it is obvious that the person was illegally possessing the land, they would lose their right. This doctrine, as even stated by the court, is incredibly unfair and illogical in the modern age because it gives the right to keep that property to someone who should be held accountable for trespassing. A person may be unable to act for a variety of reasons that do not fall under the category of exceptions that should be taken into consideration.
Over time, there have been several modifications made to the adverse possession doctrine. However, it might still give the land’s occupant an unfair advantage over the owner. Even if it is obvious that the person was illegally possessing the land, they would lose their right. This doctrine, as even stated by the court, is incredibly unfair and illogical in the modern age because it gives the right to keep that property to someone who should be held accountable for trespassing. A person may be unable to act for a variety of reasons that do not fall under the category of exceptions that should be taken into consideration.
[1] https://indiankanoon.org/doc/1924102/
[2] https://indiankanoon.org/doc/1867043/
