Property title through adverse possession means the occupation of a property, with the intention to occupy and possess by ousting the actual owner.

What is Property Title through Adverse Possession?

The term “adverse possession” is defined under the Limitation Act of 1963. The Act says that if any person holds possession of another’s property (Private Property) for 12 years or more then the original owner of the property cannot dispossess him from the property. If he or she is forcefully dispossessed then he or she can claim right over the property that is he or she can claim possession over the property.

The possessor can approach the court to get relief in this case or can claim his right over the property and if any person holds government property (Public Property) for 30 years then he or she can claim the right over the property that is he or she can claim possession over the property.

So, it is advised that the owner should take action before 12 years of adverse possession, or else he will lose the right to dispossess the occupant from the property. By staying on the property for 12 years or more, the occupant may secure the property title through adverse possession. Hence, it is better to consult a property lawyer in West Bengal if you are facing such issues.

How Adverse Possession Works?

Now, a question arises as to why an individual can acquire property through adverse possession. In our view, we can say that perhaps they have no other option left with them and holding possession of a property for 12 years also provides them the legal right to possess the property shortly. We should also remember that property provides shelter and this is one of the most basic needs of humans and property and ownership are like two sides of the same coin.

Article 19(1)(f) of the Indian Constitution provides us with the right to property and Article 31 of part III makes it an enforceable right under the Constitution of India. However, for development purposes, our government faced problems regarding acquiring properties for public use. So, the Supreme Court of India withdrew the right to property as a fundamental right and said that it is just a legal right of an individual under article 300-A and it was also mentioned by the Supreme Court that the property right is a human right under the Constitution of India.

Elements to Constitute Property Title through Adverse Possession:

1. Property:- There should be a property which may be movable or immovable.

2. Nature of possession required over the property to constitute adverse possession:- There should be actual possession of an individual who is claiming the title of the property from another person and some acts of possession do not amount to adverse possession. Any person or an individual is required to continue living in the same property for a specific period of time as stated by the state law. In simple words, we can say that possession must be actual, visible, exclusive and so on.

3. Possession must be continuous:- The possession must be continuous to constitute adverse possession and without continuance, for some time as specified by the state law, it can not constitute adverse possession.

4. Possession should be to ouster the real owner to prove the property title through adverse possession.

5. Dispossession of the true owner:- Dispossession and discontinuance are both relevant terms. In the case of dispossession, an individual or person comes in and drives or throws out another person who is in the possession and in case of discontinuance, an individual or any person leaves or goes out of the property in which he has possession and another person or an individual comes into the possession. This way property title through adverse possession can be claimed by the possessor.

Article 63 of the Limitation Act, 1963 deals with the “maintainability of the lawsuit based on the time limit and it is also mentioned that if anyone has perfected his title over property through adverse possession then he can file possessory suit under the law and restore the possession if he or she is dispossessed forcefully.

Essentials of Adverse Possession:

1. An individual must hold possession for 12 years or more for private properties to come under the purview of adverse possession and for government properties or land or public properties or land, he or she must hold possession for 30 years or more.
2. An individual or individuals claiming the property adversely should have hostility and it should be open and notorious.
3. This should not be the consequence of any agreement or contract instead it should be a unilateral act.
4. There should be actual physical possession of the property and it should not have any disputes. The physical possession should be open and continuous to claim property title through adverse possession.

Three Points of Adverse Possession:

• When a person or an individual is enjoying the property of another person, he should have knowledge on whom the title is vested.
• The person or an individual who has a title to the property or the person who is the owner of the property must give up his property to another person who has had possession of his property for a long time according to the law of the state.
• Any person in possession of another person’s property by contract then it does not amount to adverse possession. For example, say, the parties contract for 12 years or 99 years then the party who is in possession of another person’s property cannot claim the title of the property or cannot claim any benefit from the property.
• Any person can claim property title through adverse possession in accordance with the Limitation Act. According to the Limitation Act, any person who holds possession of another person’s property for 12 years legally and not by contract can claim adverse possession.

Case Analysis:

Sri Uttam Chand (D) Th Lrs . vs Nathu Ram (D) Thr. Lrs. AIR 2020 SUPREME COURT 461

In this case, the plaintiff bought a property in a public auction from the Managing Officer, Department of Rehabilitation, Government of India in the year 1964 and he was also served with the certificate of sale. But now, the plaintiff filed a suit against the defendants stating that they are in unauthorised possession of the property and they are not ready to vacate the property.

The defendants also mentioned that the plaintiff is not the owner of the property and they specified that they are enjoying this property for the last two centuries and their grandfather was the owner of the property then their father and now they are the owner of the property. The property does not belong to the Managing Officer or Managing officer has no authority over the property and also he does not have any jurisdiction to auction the property then how could he transfer the same property.

It was also said that the plaintiff has no title or interest or authority over the property. The Supreme Court said that they found the findings recorded by the High Court of Delhi that the defendants have perfected their title by adverse possession are not legally sustainable and hence the judgements of the High Court was set aside and the decree was allowed and also the appeal was allowed.

“Smt.Manak Bai vs Sirubai on 26 February 2020 Madhya Pradesh High Court”

This case deals with whether a title suit can be filed within 12 years from the date possession becomes adverse. The tenants have possession in the suit property in this case and the suit property is ancestral property. The appellant claimed the suit property that is the property in question on the basis of family settlement and the suit is not filed within 12 years but the plea of the respondent about the adverse possession is also not proved and therefore the suit is not time-barred. This way the property title through adverse possession can be claimed.

Adverse Possession Guidelines

Overall, property title through adverse possession gives the title of the property to another person who is not the real owner of the property. Property title through adverse possession is a method of acquiring title from another person and can often be termed as a harsh law. Adverse possession can be perfected through the guidelines. However, for property owners, specific steps should be taken to avoid adverse possession and you should always seek legal assistance from an experienced property lawyer to handle such matters. For help with property title through adverse possession, you may contact Advocate Chenoy Ceil.