National Juridical Sciences Property Law

Introduction

In India, prior to 1862, there was no application of law of limitation. ‘The English law of limitation, as per 21 James I C and 4 Anne c 16(1) was institutionalized in India after the British formed the Supreme Court of Judicature at Calcutta. In case of the Provincial Courts, in the beginning they were governed by certain Regulations. Then in 1871, the Limitation Act IX of 1871 was passed which provided for the limitation of suits, appeals and certain applications to Courts. The Act IX of 1871 was again reinstated by Act XV of 1877 which provided for the extinguishment of rights not only to land and hereditary offices but also to any property including moveable property.’ [1] That Act was replaced by the Limitation Act, 1908. The 1908 Act was used to be amended from time to time. Finally, the ‘Third Report of the Law Commission of India on ‘Limitation Act, 1908’ (1956) [2] resulted in the repeal of the Limitation Act of 1908 and formation of the present Act of 1963. From 1.1.1964 The Indian Limitation Act, 1963 is in force.

In the Law of Limitation, there are generally three distinct concepts, namely, prescription, acquisition and barring of judicial remedies. ‘Under sec-27 of the 1908 Act, prescription was given which explained the extinguishment of property rights. Right of prescription suggests that there is to be no hiatus in the right to ownership of the property, when the title to property of the previous owner is extinguished, it passes on to the possessor and his right to possession gets transformed into ownership. Section 27 applied to movable as well as to immovable property.’ [3]

At present article-65 in the Schedule to the 1963 Act says that a person in adverse possession of immovable property acquires title to the property. Such possession must be open and continuous and in defiance of the title of the real owner for twelve years so that the person can prescribe title by adverse possession. So far as Government property is concerned, Art. 112 prescribe a requirement of thirty years for prescribing title by adverse possession.

What is Adverse Possession?

Adverse possession is a circumstance where the person occupying the land is not the true owner but he obtains a better title over the land. The occupier gets the title only if the property in question is actual, open, hostile, and was in continuous possession by the occupier to the exclusion of its true owner for the period prescribed by the law. [4] He neither gets an explicit consent from the owner nor does he pay him the required amount of compensation. The law itself places a statutory limitation on the true owner’s right to dispossess the occupier from the property. Under adverse possession it is the manner and time of holding of the property that conflicts with the true owner’s right of title.

What is the anomaly in Adverse Possession?

An owner of a property is prima facie entitled to possession. When a person gets a title over a property, the ownership automatically flows from it. As a result it gives the person, the right of possession, its enjoyment, sale, gift and mortgage. In the words of Maule J. in Jones v. Chapman (1847), the dictim expresses the following:–

‘… if there are two persons in a field, each asserting that the field is his, and each doing some act in the assertion of the right of possession, and if the question is which of those two is in actual possession, I answer, the person who has the title is in actual possession, and the other person is a trespasser.’ [5]

If the property is not in the actual possession of anyone, the law would presume it to be in the constructive possession of the owner of that property. But, as soon as someone takes actual possession to the extent of the dispossessing the rightful owner, the latter’s constructive possession ceases to exist. ‘Possession’ in law is generally presumed to follow the true title in cases where physical possession is undermined, contested or ambiguous. So in case of vacant property where no one is in the actual possession, the law attaches the possession to the person having the title over the property. Therefore, where vacant sites of which no effective physical possession is feasible, the assumption is that possession will follow title. This is also same in case of ownership which is doubtful; the courts follow the rule that the legal possession would follow title.

Whereas in adverse possession the law itself bars the true owner of the property to claim the title over the property as the statutory limitation allows the person who was enjoying the property adversely to the owner for at least 12 years to have the title over it.

The anomaly lies here that whether the particular provision should be amended or not. There are people who claim that property right of a man is no less than a human right and therefore such deprivation can never be justified by any reason whatsoever. If a person gains title over the property, he gets the right to possess it. Therefore, it is also upto his discretion whether to use it or give it away for free. There is no reason as to why it should give away a property owned by a legitimate owner to any person only because he could not take away his property within the limitation period.

There is also an argument on moral grounds and economic grounds which supports the existence of adverse possession in the legislation. ‘Economist argue that the land that is unused does not benefit the society, so if you are going to let your land sit wastefully, when someone else could use it and improve it, then it benefits the society for the person who will use and upgrade it, to have it.’ [6] And on moral grounds, they claim that ‘Adverse Possession is a right which comes into play not because the owner loses his high right to reclaim the property because of his continuous and willful neglect. Though the law may also take into account of the original possessor’s positive intent to dispossess but the adverse possessor should also be given a fair chance on the grounds that he is worthy of keeping the land and also exhibits far more urgent and genuine desire to deprive the true owner of the property.’ [7]

How to claim Adverse Possession?

Commencement of the Limitation Period: In Saroop Singh v. Banto & Ors. [8] , the Court held that in terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date when the possession becomes adverse to the true owner.

Burden of Proof: ‘Under Article-65 there is no need for the plaintiff to prove possession by him within 12 years prior to the suit since the suit is based on title. It is for the defendant setting up the defence of adverse possession to establish such possession for the statutory period.’ [9] The plaintiff may rest content with proof of his title in the first instance and the burden lies on the defendant to show that he was having a possession inconsistent with the title of plaintiff for more than 12 years before suit. In meeting such a defence, the principle that possession follows title may often be helpful to the plaintiff.

Presumption as to possession: The Supreme Court in Karnataka Board of Wakf v. Government of India and Others [10] has stated: “In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, and hostile and continued over the statutory period.”

Factors to prove the adverse possession: ‘A claim by adverse possession has two elements:

(1)The possession of the defendant should become adverse to the plaintiff; and

(2)The defendant must continue to remain in possession for a period of 12 years thereafter.’ [11]

Physical fact of exclusive possession and the animus possidendi [12] 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. The Supreme Court in Shambu Prasad Singh v. Mst. Phool Kumari [13] (1971) held that the possession required must be adequate in continuity in publicity and in extent to show that it is possession adverse to the competitor. ‘It must be actual, visible, exclusive, and hostile and continued for over 12 years.’ [14] The hostile character of the property is gauged by the animus of the person setting up adverse possession. The Supreme Court in Annakili vs A. Vedanayagam & Ors [15] has held that Animus Possidendi is well known requisite ingredient of adverse possession. Therefore it is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have Animus Possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only Animus Possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession for a period of more than 12 years without anything more, do not ripen into a title.

e) Facts to prove: ‘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.

A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.’ [16]

Exceptions

There are few cases where the claim of adverse possession won’t be accepted by the court. These are as follows:

Co-owners- the possession of one co-owner is presumed to be on behalf of all the co-owners the law requires, to constitute ouster, proof of something more than mere exclusive possession and exclusive receipt of income. Along with exclusive possession there must be an ouster, a hostile, open denial and an open repudiation of the other co-owner’s right to the latter’s knowledge. ‘The co-owner in exclusive possession cannot render his possession adverse to the other co-owner merely by any secret, hostile animus on his own part in derogation of other owner’s title.’ [17] But a Madras Court has propounded that ‘if a co-owner fails to assert his right for a considerable length of time with the result that the other side is handicapped, by lapse of time and disappearance of evidence, from providing that his exclusive possession was coupled with open denial and open repudiation of the title of the other co-owner either at the inception or subsequently, the co-owner who has been inactive must take the consequence for the long delay in bringing that suit which has prejudiced the side and loss of evidence by lapse of time.’ [18]

Co-sharers- ‘When the possession is under an arrangement between the co-sharers no question of adverse possession can arise under the circumstances.’ [19] If the title is declared adverse and there is complete ouster of the other co-sharer for 12 years, then a plea of adverse possession can be proved.

Interference with possession- It is well-settled law that mere interference with their possession by the rightful owner would not be sufficient to show that they have been dispossessed unless such interference results in their being definitely ousted from any portion of the land. ‘There is also authority for the proposition that even if they have dispossessed from a certain portion of the land by another trespasser and ultimately recovered possession, such dispossession would not be deemed to constitute a break in their possession.’ [20]

In order to bar he suit under Art. 65 the defendant must have been in uninterrupted possession of 12 years before the date of the suit.

Permissive occupant: ‘The mere fact of long user by the permissive occupant is hardly sufficient to alter the character of permissive possession into an adverse on.’ [21] ‘The defendant has to prove that the person in possession asserted an adverse title to the property to the knowledge of true owners of a period of 12 years or more.’ [22] ‘Permissive possession will always continue to be permissive till and until the licensee asserts and proves the assertion of adverse possession.’ [23] This includes cases of landlord allowing tenant to stay [24] , an employee getting a house from the company he works for [25] , a person who allowed his relative to stay and went to stay in abroad [26] , a licensee getting license with consent [27] , etc.

Trespasser- ‘Mere possession of trespasser will not constitute adverse possession to the real owner unless accompanied by assertion of hostile title.’ [28]

Shebait- It is impossible for a Shebait to claim the plea of adverse possession as the person cannot claim hostile title against the deity.’ [29] And he is acting as the manager who cannot act in a manner which is against the interest for whose protection he has been assigned the post.

Conclusion

Adverse possession as we know is where a person other than the owner is in possession of a property and holds the property in an open, continuous and hostile capacity for 12 years or more and claims title adverse to that of the owner. The Limitation Act prescribes 12 years within which the owner has to reclaim his property, failing which the law recognizes the adverse possessor as the owner of the property.

But, the recent trend of Indian judiciary is following an attention-grabbing approach to the right to property. In P.T. Munichikkanna Reddy v. Revamma [30] , the Supreme Court of India has equated the right to property as not just a statutory right, but as a human right. It stressed on the Declaration of the Rights of Man and of the Citizen, 1789 which advocates right to property under Article 17 and Universal Declaration of Human Rights, 1948 which too supports right to property under Sections 17(i) and 17(ii). The Supreme Court also looked into the decision of the European Court of Human Rights in JA Pye (Oxford) Ltd. v. United Kingdom [31] , where the ECHR into took unkindly to the concept of adverse possession.

Again, in Karnataka State Financial Corpn. v. N. Narasimahaiah [32] it has been held that right to property being a human right, in the absence of any provision either expressly or by necessary implication, depriving a person therefrom, the court shall not construe a provision leaning in favour of such deprivation.

Going a step ahead, another coordinate Bench of the Supreme Court in the recent decision of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan [33] , after referring to the judgment in P.T. Munichikkanna Reddy v. Revamma case [34] , and looking at the position in other countries, has while opining that the law of adverse possession is irrational, illogical and wholly disproportionate, recommended to the Union of India to seriously consider and make suitable changes in the law of adverse possession. The Court has also directed that a copy of the 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.

India is a signatory to diverse conventions on human rights and the Supreme Court going ahead in holding that the right to property is a human right, one would observe that the Indian courts are travelling the residual distance and restoring the fundamental right to property which was deleted by the 44th Amendment to the Constitution.

With full respect to such revered decisions, one may notice that the purpose of limitation law is getting shelved in the process. Adverse possession works completely surrounding the limitation period and this has a rationale behind it. This shows that law supports and promotes strong vigilance and disrespects indolence. If a person is too lethargic to take action in recovering his own property then he has to pay the price for his indolence. He would be stripped of his title and his title would be given to someone else who has nurtured the property and values it more than the true owner.

A person who has neglected the property for a long time which according to Indian Limitation Act, 1963 is 12 years, and he has to pay for his relaxed attitude. Moreover, this limitation act would actually act as an alarm to all those owners who neglect the property and therefore would make sure that the property if not allowed to be used should at least be sold on time. Property as tangible leads to decay if left unused and hence it is advisable to let the person who has saved it from the decay to get his share on the property.