SHORT NOTES ON ADVERSE POSSESSION. -BY AJIT JAKHADI Advocate High Court Website: www.lawajit.com E-mail: firstname.lastname@example.org. INTRODUCTION .
-BY AJIT JAKHADI
Advocate High Court
The term property is derived from Latin term “Properietat” which means “One’s own” and in its fullest significance signifies five distinct groups of rights viz.
On making absolute transfer, restriction regarding free enjoyment of property is void.
Ownership of property which can be acquired by contract, Inheritance prescription. It is a right in rem against the whole world. In India the Sanskrit Literature recognized several types of documents i.e. partition, Gift, Purchase, Agreement, Bond etc.
Means an Act by which living person conveys property in present
or in future to another living person.
Property can be transferred by various modes.
1) By way of Sale
2) By way of Mortgage and charge
3) By way lease
4) By way of exchange
5) By way of Gifts
A. By way of Will
B. By way of Order of the Competent Court
Transfer of Property Act is not exhaustive and not a complete
(a) Nominee of a deceased owner
(b) Beneficiary of a will
(c) Co-owners of ancestral property, verify minor's claims.
(d) Public Trust – No Objection from the Charity Commissioner.
(e) Non-Resident Indian (NRI) – No Objection from Income-Tax Department must be obtained. So also permission from RBI may be required.
(f) Foreign company or a foreign Corporate Body – No Objection from RBI.
A. Legal right may be acquired by the following ways:-
1. By Contract – A person may acquire a legal right by contract.
2. By a Trust - A Trust is an obligation whereby a person known as the author or maker of the trust gives some property to a person or persons called the trustee or trustees to hold the same for the benefit of some other person or persons called the beneficiaries.
3. Gift or Donation – A gift of immoveable property requires a deed of gift – an instrument in writing, duly registered.
4. By operation of law - A person may acquire a right, also by operation of law – by intestate succession or by ADVERSE POSSESSION against someone.
A. It is a mode of acquisition of property. Long and continuous possession of property for twelve years or longer, adverse to the right of the owner, the possessor can get a title to the property and the original owner loses its right. Adverse possessor does not derive his title from the owner, but merely extinguishes the owners better title. Article 65 of Limitation Act – Suit has to be filed within Twelve years.
B. The Jurisprudence of possession formed the basis behind AyodhyaJudgement. Every civilized Society believes that possession is nine points in Law. The passage of time ousts the original owners is an accepted principle of law of property.
C.Lord Rama was sent to forest for 14 years, so the possession of Kingdom goes in favour of Bharat on the basis of Rule of Adverse Possession, as 14 years was the period of limitation in TRETA YUG. Same was the logic for Kauravas in banishing 5 Pandwas to 13 years of exile as the period of limitation to claim immovable property is reduced by 1 year in DWAPAR YUG. In this KALI YUG it is 12 years as provided by Limitation Act.
It is a doctrine that operates by default. It is due to non-action of the owner that the plea of Adverse Possession can be set up. Burden is upon the Defendant to show that the Defendant has perfected his title by Adverse possession.
2. Two kinds of Adverse Possession :
(i) Initial entry itself is as a trespasser.
(ii) Initial entry is permissive, but it becomes adverse or wrongful. Possession adverse to the true owner must be peaceful, open and continuous.
3. What constitutes Adverse Possession :
Uninterrupted possession of the property to the knowledge of the true owner and has denied the title of the true owner. Mere possession for any number of years cannot constitute Adverse Possession. It commenced in wrong and is maintained against right.
(i) Possession long in continuity
(ii) Possession adequate in publicity
(iii) Adverse to the true owner.
5.Requirement of Adverse Possession :
Open, continuous uninterrupted for more than 12 years.
6. No Adverse possession between Co-owners
7. Claim of Adverse Possession by minor :
A minor can never set up a possessory title adverse to the interest of true owners till he attended majority. Article 65 of Limitation Act has no application.
8. No Adverse Possession by Public :
There can be no Adverse possession by Public and use of land by them cannot affect Plaintiffs title of possession.
A Pujari cannot claim Adverse Possession of Temple Property.
10. Can a Lessee claim Adverse Possession :
A Lessee cannot acquire title to the demised land by Adverse Possession so long as his possession under the lease continues.
11. Claim of Adverse Possession by Licensee :
Where there was license in respect of super structure, the Licensee could not claim Adverse Possession over Land on which building stands.
12. Adverse Possession of Mortgaged Property :
A Mortgagee cannot, under any circumstance acquire a title by Adverse possession against the owner.
The Supreme Court has recommended to the Union Government to suitably amend the law of Adverse Possession as it puts premium on dishonesty. [HemajiWaghajiJat v/s BhikhaBhai] “The law of Adverse possession which ousts the owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate”.
The law is extremely harsh for the true owner and a windfall for a dishonest person who takes property of true owner.
The Supreme Court has also said the Right to Property is now part of Human Rights. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. The present law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property. Hence, there is an urgent need of fresh look regarding the law on Adverse Possession.