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THE QUESTION OF OWNERSHIP & ADVERSE POSSESSION



In order to claim ownership of a land on the basis of adverse possession, one has to prove that adverse possession is open and uninterrupted on the said land and is to the enjoyment of the person claiming adverse possession for more than 12 years. The same has been held in the case of M. Venkatesh & Ors. v. Commissioner, Bangalore Development Authority, (2015) 10 Scale 27.


The concept of Adverse Possession in based on the presumption that the owner of the land has abandoned the said property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile; the same being referred in P.T. Munichikkanna Reddy & Ors. v. Revamma & Ors, AIR 2007 SC 1753.

That in the case of Karnataka Board of Wakf v. Government of India, (1995) 6 SCC 309 it was held that 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 the true owner.


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:

  • on what date he came into possession,

  • what was the nature of his possession,

  • whether the factum of possession was known to the other party,

  • how long his possession has continued, and his possession was open and undisturbed.

As per Law of Pleadings by Mogha the concept of adverse possession is one of the pleas of defence used by person in possession of the land but does not have title to the said land. The period limitation is 12 years against private land and 30 years against Government land and starts from the date when the possession of the defendant becomes adverse to the plaintiff. For adverse possession it is necessary for the person to admit the title of the real owner and to establish his open and hostile possession without any interruption. It is not sufficient to plead that a party has been in adverse possession for 12 years, it should be definitely alleged how and when adverse possession commenced. Such as the defendant has dispossessed the plaintiff and has been in possession continuously ever since, or the defendant has been open and continuously in possession for more than 12 years to the knowledge of the plaintiff, or the defendant has been in possession continuously for more than 12 years so openly that either the plaintiff was aware of his possession or ought to have been aware had he exercise due diligence. It is also a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, necprecario”, 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, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi 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.


A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, thus it is for him to clearly plead and establish all facts necessary to establish his adverse possession. The same also being held in the case of Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma (1996) 8 SCC 128.


With regard to limitation period applicable in terms of adverse possession it was held that in terms of Article 65 of the Limitation Act, 1963, 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 the defendant’s possession becomes adverse as held in Saroop Singh v. Banto (2005) 8 SCC 330. The same has been reiterated in Vasantiben Prahladji Nayak v. SomnathMuljibhai Nayak (2004) 3 SCC 376 by the Hon’ble Supreme Court.


That section 27 of the Limitation Act, 1963 is an exception to the general principle of law of limitation and is the genesis of Adverse Possession. As per the section if a person fails to file suit for recovery of possession, within a period of limitation, his right to recover the possession of that property also extinguishes. Thus a genuine owner of the property in question for adverse possession shall loose his ownership over the property. The property in question must also be then in the name of any other person or any other person must be entitled to have right over it. Adverse Possession grows from such a scenario. If a person has possession over a property which is in reality in adverse to the interest of true owner of the property and true owner fails to file a suit for recovery of possession within a period of limitation, then such a person who is in possession adversely shall then become the owner of property in question by way of adverse possession.


Adverse possession is one of the ways in which title to the land is acquired if certain ingredients are satisfied for establishment of the same. For applying the concept of Adverse Possession there should be continuous uninterrupted occupancy over the land. As per the Article 6 and 65 of the Limitation Act, 1963 prescribed period is 12 years and the prescribed period in case of Government is 30 years over the land which is to be considered for adverse possession. The starting point of limitation begins from hostility which would result in denial of title of the land to the real owner of the land. Onus for the same squarely is lies on the party which is showing Adverse Possession to set up the title on the basis of his/her continuous and uninterrupted possession. However it is also quintessential to note that proving of Adverse Possession cannot be based on presumption and probabilities cannot be substituted for hard fact evidence.

 

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