Adverse Possession – To be or not to be?

Concept of “Adverse Possession”; Will it be scrapped?

 A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from enjoyment of his property. The requirements of adverse possession are that the possession must be nec vie, nec clam and nec precario i.e. the possession must be adequate in continuity, in publicity and in extent. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor or on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81).

Statutory background:

Section 27 of the Indian Limitation Act, 1963 reads; “Extinguishment of right to property at the determination of the period hereby limited to any person for instituting a suit for possession or any property his right to such property shall be extinguished”.

The section deals with extinguishment of right to property. The expiry of the prescribed period of limitation makes not only the remedy barred but also the title extinct in favour of the possessor. When a person entitled to possession does not bring a suit against the person in adverse possession within the time prescribed by law his right to possession is extinguished. When it is said that the person in adverse possession has perfected his title it only means this. Since the person who had the right to possession allowed his right to be extinguished by his inaction, he cannot obtain the possession from the person in adverse possession.

Various articles contained under the Limitation Act prescribe the time from which period begins to run in specific circumstances. Article 65 prescribed 12 years as period of limitation to file a suit for possession of immovable property based on title.

Ingredients of adverse possession:

Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. The apex court in Karnataka Board of Wakf v. Government of India and Others [(2004) 10 SCC 779] in the following terms:

“Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.”

Change in approach of court:

In Perry v. Clissold, It was held by the Privy Council

“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished, and the possessory owner acquires an absolute title.”

In Nair Service Society Ltd. Vs K.C. Alexander & others, reported in AIR 1968 SC 1165 and various other judgments the apex court had held that the adverse possession need not be know or borought to the notice of the real owner and the adverse possessor can acquire title even if he is unaware of who the real owner is. Earlier the judgments were expressing the view that the animus to possess the property as his own implies the intention to dispossess the owner.

But the recent judicial verdicts have expressed a contrary opinion setting up a new judicial trend.

In P.T. Munichikkanna Reddy & Ors vs Revamma And Ors 2007 (6) SCC 59, the supreme court has held that there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. Also mention as to the real owner of the property must be specifically made in an adverse possession claim.

In Karnataka Wakf Board (Supra), it is stated: “Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it”.

In T. Anjanappa and Others v. Somalingappa and Another [(2006) 7 SCC 570], it is held “If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise”.

Crown of all in State of Haryana Vs Mukesh Kumar & others reported in 2011 SCC (10) 404, the supreme court has gone to the extent of recommending the union government to consider change in the laws toabolish adverse possession. The relevant excerpts in the said judgment are as under;

“The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.

49. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.

50. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.

51. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law”.

Adverse possession – to be or not to be;

The rationale for adverse possession rests broadly on the considerations that title to land should not long be in doubt, the society will benefit from someone making use of land the owner leaves idle and that that persons who come to regard the occupant as owner may be protected. The original title holder who neglected to enforce his rights over the land cannot be permitted to re-enter the land after a long passage of time. A situation lasting for a long period creates certain expectations and it would be unjust to disappoint those who trust on them.

There are arguments for and against adverse possession. There are pros and cons in scrapping adverse possession. Now as a sequel to the recommendation of the Supreme Court the law commission of India has issued a questionnaire inviting opinions from the public. And it is for the Government to decide the question, Adverse possession to be or not to be?

References:

i)                    Various volumes of SCC and AIR

ii)                  Article published in 2012(5) CTC 154 (JS)

iii)                Adverse possession by P.S. Narayana

iv)                Limitation Act by U.N. Mitra

v)                  Questionnaire cum paper on adverse possession published in lawcommissionofindia.nic.in

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