Adverse possession means when a person holds property owned by any individual for an uninterrupted period for more than 12 years, they would become the lawful owner of the land. Even if a person acquires land unlawfully for more than 12 years, he will become the lawful owner. This concept is based on legal maxim, “vigilantibus non-dormientibus subvient lex” which means that the law only favours the active citizens and not those who are dormant or in other words, are not concerned about their rights.
Illustration: A person X provides his land on rent to Y for a period of 6 months. However, even on the expiry of the time, Y possess on that property and X did not take any action and continues to possess for over 12 years. In such a situation, Y can claim adverse possession and after 12 years, X cannot claim ownership.
Essentials to Prove Adverse Possession:
- 1. The Date of Possession: The date on which adverse possession 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: 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 neighbors were aware of the possession and the date when they became aware of it.
- 3. Peaceful Possession: The possession taken by the trespasser of the property must be peaceful. Any possession which is taken by a person after threatening the real owner of the property does not come under adverse possession.
- 4. Lack of Legal 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 that the owner was aware of the possession.
- 5. Continuous Possession: It must be established that the possession of the property was continuous without any interruptions by the owner or any other person.
Exceptions : Such rule of adverse possession does not apply to following persons:
- – If the owner is a minor.
- – If the owner is mentally unwell.
- – If the owner serves in the armed forces.
Adverse Possession in government Properties:
- For adverse possession of any Government property the period to claim ownership from the Government or any public organization has been fixed at 30 years by Section 25 of the Act. In other words, it is only after 30 years of uninterrupted possession of the person that no action for claims could be filed if the property is owned by the Government.
Acquisition of Ownership by Possession is provided under the Limitation Act, 1963 (hereinafter Act) by Sections 25, 26 and 27.
Section 25 – Acquisition of easements by prescription. —
(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.
(2) Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested
(3) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were substituted.
Explanation.—Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
- Section 26 – Exclusion in favour of reversioner of serivent tenement — Where any land or water upon, over or from, which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or in terms of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period twenty years in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled on such determination to the said land or water.
- Where any easement has been enjoyed or derived by virtue of life interest or in terms exceeding 3 years, the time of enjoyment of such easement during the continuation of such interest, such time period is to be excluded in computation of 20 years under Section 25.
Section 27 – Extinguishment of right to property — At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.
- General Rule is that the law of limitation only bars the remedy but does not bar the right itself. Section 27 is an exception to this rule as it talks about adverse possession. It is based upon the principle – If the rightful owner sleeps over his rights, then the rights of the owner will be extinguished, and the possessor of the property will have a good title over it. The provision is not limited to physical possession but also includes de jure possession
- Example of De Jure Possession: Where a man has ceased to live in a house but without intending and to abandon it and remains the owner of the house
RELEVANT CASE LAWS
Rajender Singh vs Santa Singh
Facts:The plaintiffs, sons of Smt. Premi and heirs to Sham Singh, the original owner of the disputed plots, received a gift from Smt. Malan, the widow of Sham Singh, in 1935. The gift was split equally between the plaintiffs and Smt. Khemi, the younger sister of Smt. Premi, who later made a gift back to the plaintiffs before her death in 1944.The suit, initially filed in 1941, was stayed until 29th May 1946, under the Indian Soldiers (Litigation) Act, benefiting the plaintiffs.The plaintiffs alleged that the defendants unlawfully took possession of the land after the High Court’s decision on 23rd November 1958, leading them to file a possession suit. The defendants argued that they acquired possession of the entire land after Smt. Khemi’s death in 1944, claiming open, continuous, exclusive ownership adverse to others, asserting the plaintiffs’ suit was time-barred.The appellants sought possession, but the defendants countered, citing the bar of limitation and acquisition of title through adverse possession exceeding 12 years.The first appellate court said that because there was already a case going on, the people who were against the decision couldn’t get their rights.The High Court agreed that the people who were already living on the land had rights.It said that even though the other side tried to take over the land later, they could not because they started their attempt while the first case was still happening. And even though their attempt failed later, the rights of the people living there did not go away. Hence, an appeal was preferred before the Supreme Court.
Issue: Whether the doctrine of lis pendens contained in Section 52 of the TPA, arrest the running period of the limitation during the pendency of the suit of the defendants filed in 1940 and finally decided in 1958?
Judgement: The Court observed that the object or the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party’s own inaction, negligence, or laches.The Court further said, if Section 52 of the TPA was really intended to strike at the running of the period of limitation, based on the considerations mentioned above, it would have made it clear that the law excludes the period spent in any litigation from computation.Exclusion of time in computing periods of limitation is a different subject altogether to which the whole of Part III of the Limitation Act is devoted.The Court said that there are certain conditions for the applicability of Section 14 of the Limitation Act, 1963.One of these is that the plaintiff should have prosecuted, with due diligence, civil proceedings “founded upon the same cause of action”.In the case before us, the cause of action arose, according to the plaintiffs, after the decision of the previous suit.The cause of action in the previous suit was entirely different. Indeed, it was the defendants who had sought relief there and set up a cause of action.The Court said as far as the doctrine of lis pendens is concerned, the whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated;The Court discussed the case Jayaram Mudaliar v. Ayyaswami and Ors. [1973] 1 SCR 139 and observed that Lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.
PRESENT CASE
Q. 6/2020. Mohan took possession of property in 2005 and he was enjoying peaceful and uninterrupted possession of the same till 2019. This was within the knowledge of Sohan (original owner). Sohan was aware of Mohan’s hostile title still he did not institute the suit within the limitation period of 12 years. Therefore, by application of section 27, Sohan’s right to property has been extinguished.
