Everyone who owns or is looking to own property in India should be aware of the adverse possession law. After all, when you spend years or even decades saving for or paying for a property, you cannot risk losing it over an outdated technicality in the law. Owners are always wary when purchasing property. From scams to disputes, the real estate market can be a minefield to maneuver. The adversse possession of land is one example of what can go seriously wrong for a landowner.
Adverse possession of land spells bad news for property owners. Essentially, adverse possession referred to the aquiring of property in an unsolicited manner. The law of adverse property implies that a person who is in possession of a property for 12 years or more is entitled to ownership rights of that property. So tenants who stay on land for 12 years continuously, without any interruption from the owner of the property during that time, obtain owner status for the property.
What is adverse possession in India?
Adverse possession in India means that the law favors a stranger or trespasser who is occupying land continuously and exclusively, without interruption, for a period of time that is usually 12 years or more. The time which the person occupies the space needs to be consecutive years and the time period can vary depending on the classification of ownership.
In simple terms, if a person who has lived on an area of land without a title for 12 years consecutively and has the owner’s consent they can legally claim ownership of that land. So, if an owner fails to remove a trespasser from their property for a specific time period, that owner can lose ownership of their property. The very term ‘Adverse Possession’ was first established by the Supreme Court of India in the case of ‘Amarendra Pratap Singh v. Tej Bahadur Prajapati’. It was initially introduced by British Rulers and was established to help the usage of land. However, it evolved to impact property owners negatively as tenants and squatters began to take advantage of the law and use it as a form of hostile possession, denying the actual owner claim to their property.
What is the adverse possession law?
This law is governed by the principle of The Limitation Law of 1963. According to the adverse possession under limitation act, if over a time period an appeal has not been filed to correct any limitation then the current scenario of titles continues. The terms for the adverse possession period is defined as 12 years.
According to the law in India, when a property owner does not lay claim to their property for 12 years, and the tenant occupies the property for 12 years continously, then the ownership rights are transferred to the tenant. These are the basic principles of adverse possession limitation act in India.
What are the exceptions to the doctrine of adverse possession?
There are some exceptions to the doctrine of adverse possession. These are stated below:
- If the owner of the property is a minor
- If the owner of the property serves in the armed forces
- If the owner of the property is mentally unwell
How to prove adverse possession in India?
Adverse possession is not considered to be ethical but the Indian legal system still follows the principles of adverse possession, allotting property to tenants when the property has been neglected by the owner for 12 years or more. Owners may fall into this trap of losing their land due to a number or reasons and although there are instances when the courts have been on the original owner’s side, going through the legal trail can be a lengthy, time-consuming and exhausting process that takes years.
According to the Supreme Court in 2019, it was stated that ‘By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.’
So, in order to prove adverse possession of a property, these instances need to be investigated:
Continuity : A property can be taken through adverse possession if it has been occupied continuously and uninterrupted for a time period of 12 years.
Actual possession : The person claiming possession has to occupy the property through actual possession. This includes fencing the property, constructing a house, having grazing cattle, erecting a shed, etc.
Exclusive possession : The person who is occupying the property should be able to prove they were solely in possession for 12 years regarding the property in question.
Open possession : Possession of the property cannot be done without telling the owner.
The possessor will need to go before the court and prove the following:
- Date of possession
- That the possession was publicly known
- Nature of the possession
- Continuity of the possession
- Duration of the possession
Can a tenant claim adverse possession?
If you are a tenant through a lease agreement or rental agreement it is usually not categorised under the adverse possession law in India. In specific cases, for instance, if the lease is expired or the owner has not met the specifications in the agreement, then some tenants filed for ownership through adverse possession to help leverage their position.
The time period within which the wonder can exercise their rights easily is 12 years. Therefore, if there is a breach of contract, ownders need to try to vacate tenants to stay clear of adverse possession. Once the agreement has been terminated and if the tenant has paid out rent to the owner, they will ot be able to file for ownership through adverse possession.
Disputes and fights regarding property are commonplace in India. That is why it is so important for owners to be aware of the laws that can work in their favour as well as against it. Being aware of the how adverse possession is proved in the court of law can ensure that your property stays rightfully yours.