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Evolution Of Laws Of Adverse Possession

Adverse possession is a legal principle under which a person who does not have legal title to a piece of property — usually land — acquires legal ownership based on continuous possession or occupation of the property without the permission of its legal owner.

The concept of adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possessed by a person who does not acknowledge the other’s right but denies them. The law establishes that a person who bases his title on adverse possession must clearly unequivocally through evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

Anyone, including corporations, the federal government, states, and municipal corporations, can be an adverse possessor.

The doctrine of adverse possession is defined under article 65 of the Limitation Act which specifies the time period of 12 years up to which a claim of title over the immovable property is applicable. But the count of 12 years starts when the possession of the defendant becomes adverse to the plaintiff. For instance, A who is the owner of the land gives his property for maintenance to B, and after 12 years if he comes back to reclaim the property, the court will not entertain his suit in his favor.

The Supreme Court of India observed in Karnataka Board of Wakt vs. Government of India case that, “in the eye of the law, an owner would be deemed to be in possession of a property as long there is no intrusion.” Thus, under section 27 and section 65 of the Limitation Act, the right of the original owner of the land extinguishes if he does not interfere within the specified time limit.

The Limitation Act, 1963, lays down a limitation period of 12 years for a suit of possession of immovable property or any interest-based on the title. The period for limitation for the government, however, is 30 years by virtue of article 112. The law of adverse possession was judicially summed up by the Judicial Committee of the Privy Council in Perry v Clissold, where it was observed that if a rightful owner does not claim his right against a possessor within a given time, his ownership right stands extinguished and the same was approved by in Nair Service Society Limited v KC Alexander.

Adverse possession was defined by the Supreme Court in Amarendra Pratap Singh v Tej Bahadur Prajapati as: “A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.”

However, the understanding of adverse possession has evolved in recent times and the Supreme Court has reiterated the need to take a fresh look. The Supreme Court, in PT Munichikkanna Reddy and Ors v Revamma, was guided by the judgment of the European Court of Human Rights (ECHR) in JA Pye (Oxford) Ltd v the United Kingdom, which had critiqued the law of adverse possession and urged re-examination in light of changes in the law.

The Supreme Court in Hemaji Waghaji v Bhikhabhai Khengarbhai criticized the law and stated that it was irrational, illogical, and wholly disproportionate. The court directed the Ministry of Law to take a fresh look at the law of adverse possession.

There are so many other instances where the occupier has taken the plea of adverse possession but with every judgment, the definition of this doctrine has changed. Thus, The intention of gaining title over the land is the main element of this doctrine.

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