Adverse possession means the occupation of a property with an intention to occupy and possess, whereas the title of the property is vested in someone else who is the original owner of the property. We get these two terms “adverse possession” under the Limitation Act of 1963. The Act says that if any person holds possession in another’s property (Private Property) for 12 years 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. He or she 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 right over the property that is he or she can claim possession over the property. So, it is well said that the owner should take action before 12 years of adverse possession otherwise he will lose the right to dispossess him from the property. Sometimes, it is seen that Bharatiya also claims right over the property under the Thika Tenancy Act of West Bengal. So, it is better to make an agreement between the owner of the property and Bharatiya.
Now, a question arises that 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 also holding possession over a property for 12 years provide them legal right to possess the property in the near future too. 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 provide us with the right to property and Article 31 of part III makes it enforcible 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 right to property is a human right under the Constitution of India. So, any individual acquiring property through adverse possession thinks that it is their legal right as well as their human right and hence, they can approach courts when they face problems of enforcing their right to the property against the original owner of the property.
The Supreme Court of India said that when an individual acquires property by adverse possession which means that he was in possession of the property for 12 years or above then he can claim his possession if he is forcefully dispossessed by the owner of the property or by any other person. The Supreme Court also mentioned that an individual becomes the owner of a property or land (not the real owner) because of the fact that he possessed the property for 12 years or above 12 years and the original owner did not bring any legal action against him to oust him from the property before completing such limitation period and it is said that the person cannot be evicted from the property by another person except by procedures of the law and if 12 years of adverse possession is over then even the original owner’s right to eject the person is lost. It is well said that if the right, interest and title is acquired then it cannot be used as a sword by the plaintiff and defendant under article 65 of the Limitation Act of 1963. Article 63 of the Limitation Act, 1963 deals with the “maintainability of the lawsuit on the basis of 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:
- 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.
- An individual or individuals claiming the property adversely should have hostility.
- This should not be the consequences of any agreement or contract instead it should be a unilateral act.
- There should be physical possession of the property and it should not have any disputes.
“Sri Uttam Chand (D) Th Lrs . vs Nathu Ram (D) Thr. Lrs. on 15 January 2020 Supreme Court of India”
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 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 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.
An important and vast topic is discussed in this article. We find many cases around us related to adverse possession and also witness different disputes arising from such possession. We should always take legal assistance to handle these types of matters because it may lead to major problems later on. Before giving possession of a property to anyone we should adopt such laws which will protect us from these types of disputes in the near future and for this we should approach a lawyer or an expert who deals with these types of matters. We should also remember that if any individual possesses any property for 12 years or more according to the laws and without violating the rules given under the Acts then that individual gets right over the property.