ADVERSE POSSESSION: DOES MAKING IT TOUGHER MAKE IT ANY FAIRER?

THIS ARTICLE WAS WRITTEN BY TITHI NEOGI, A STUDENT OR KIIT SCHOOL OF LAW.

Adverse possession (or squatters’ rights) is a doctrine that was introduced in India by the British, as a way to prevent disputes over property, which were time consuming and expensive. Adverse possession means that an occupant of a land who doesn’t own title to that land, but has been in continuous and long possession of said land, such possession being known to the owner, can claim title to the property. Another rationale behind this doctrine was that it was considered better for the society that the land be brought to some use rather than being kept unused and futile. Thus an occupant using the land was favoured over an idle owner.

It is, however, difficult to establish adverse possession, and as such our judges have been wary of granting ownership on an occupant. The provisions for adverse possession are given in S.25, S.26, S.27 & Schedule Division-I Article 65 of Part V of the Limitation Act, 1963. Specific Reliefs Act, in S.5, provides for recovery of specific property on the basis of the title one holds. It says that the one with the better title to the property will hold more power over it than the other. S.6 of the same act makes it possible for a title holder to file a suit for recovery of the possession to the property. But dispossession through illegal means is an offence and is unlawful under S.145 of Criminal Procedure Code.

Primarily, a few elements have to be determined in order to establish any claim for adverse possession:

1. Continuity in adverse possession– the possession and occupation of the property by trespasser/ claimant must be continuous and uninterrupted for the entire statutory period of limitation.
2. Actual possession- the adverse possession must be actual possession such as construction of house, erection of shed, fencing the property, grazing cattle in land for the entire period of statutory period of limitation.
3. Exclusive Possession- The claimant must be in sole physical possession of the property against the legal claim, right and title of the true owner or other claimants for the statutory period of limitation.
4. Open Possession- It means that the rightful owner knew or should have known of the possession.

Exceptions:

1. The owner is minor.
2. He is of unsound mind.
3. He is serving in the Armed Forces.

So is long and continuous possession enough to validate ownership?

In Md. Mohammed Ali v Jagdish Kalita[1] it was held that long and continuous possession itself does not constitute adverse possession. For to succeed plaintiffs have to prove title to the property and defendant has to prove his title to the property by adverse possession.

In 2017, the Honourable Supreme Court came up with a rule to make adverse possession tougher so as to be fair to the actual owner of the property. Setting aside a judgment of the Bombay High Court in Dagadabhai v Abbas[2], the Supreme Court held that a person claiming adverse possession must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner. A bench comprising Justice RK Agrawal and Justice AM Sapre also observed the true owner has to be made a party to the suit to enable the court to decide the plea of adverse possession between the two rival claimants. However, this was just a caveat to the actual ruling, which states that if a person doesn’t protest someone illegally occupying his property for twelve years, then the property will be transferred to the person occupying the property by way of adverse possession.

Further insights into the wariness held by the judiciary regarding adverse possession can be seen in State of Haryana v. Mukesh Kumar and ors[3], wherein the court declared the doctrine of adverse possession to be archaic. The judgment by JJ. Dalveer Bhandari and Deepak Verma read; “The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The concept of adverse possession exited to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of the country it witnessed registered documents of title and more proper, if not perfect, entries of title in the government records. The situation having changed, the statute called for a change.” And “In JA Pye (Oxford) Ltd. v. United Kingdom[4] went on to observe the irony in law of adverse possession. It was observed that the law which provided to oust an owner on the basis of inaction of 12 years was illogical and disproportionate. The effect of such law would be draconian to the owner and a windfall for the squatter. The Supreme Court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation was illogical. The Applicant Company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Appellant then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court. It was deemed appropriate to observe that the law of adverse possession which ousted an owner on the basis of inaction within limitation was irrational, illogical and wholly disproportionate. The law as it existed was extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to have benefited a person who in a clandestine manner took possession of the property of the owner in contravention of law. That in substance would have meant that the law gave seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner. The Supreme Court failed to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation. That was stated in the Hemaji Waghaji Jat[5] case.”

In Roop Singh v Ram Singh[6], the defendant had only asserted that about 14 years ago plaintiff had given his land by executing a sale agreement, the sale deed was written in presence of 2 persons of the same village and hence since that period defendant was in possession of the land as an owner/purchaser. Therefore he had become owner of the suit property by adverse possession. Except this rare evidence of the sale deed there was no other evidence on record to support that defendant had possession of the suit property.

The judiciary has time and again through its judgments shown that the doctrine of adverse possession can only be fair when it is used as a shield for defense and not a weapon. There are various issues at hand to be considered before an adverse possession can be declared to have matured into ownership.

[1] [2003] 12 ILD 332 SC

[2]MANU/SC/0438/2017

[3] [2011] 10 SCC 404

[4] ECHR 30 Aug 2007

[5] [2009] 16 SCC 517

[6] [2000] INSC 150