SHORT NOTES ON
ADVERSE
POSSESSION
-BY AJIT JAKHADI
Advocate High Court
Website: www.lawajit.com
E-mail: jakajit9@yahoo.co.in
INTRODUCTION
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.
1.
Enjoyment
2.
Destruction
3.
Inheritance
4.
Alienation
5.
Possession
On making absolute transfer, restriction regarding free
enjoyment of property is void.
RIGHT IN REM
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.
TRANSFER OF PROPERTY ACT,
1882
What is Transfer of Property ?
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.
B.
By way of Will
By way of Order of the Competent Court
Transfer of Property Act is not exhaustive and not a complete
code.
Purchase of Property from:
(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.
MODE OF ACQUISITION OF LEGAL RIGHTS
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.
ADVERSE POSESSION
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 Ayodhya
Judgement. 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.
1.
Doctrine of Adverse Possession :
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.
4.
Essentials of Adverse Possession :
(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.
9.
Claim of Adverse Possession of Temple Property :
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.
Law on Adverse Possession needs
change
The Supreme Court has recommended to the Union
Government to suitably amend the law of Adverse
Possession as it puts premium on dishonesty. [Hemaji
Waghaji Jat v/s Bhikha Bhai] “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.
Right to Property is Human Right
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.
Thank you