The Law of Adverse Possession in India

The law of prescriptive rights is best summed up by the brocard, ‘nec vi, nec clam, nec precario’, indicating the acquisition of a right by prescription must be in circumstances that exclude ‘force, stealth or licence’. A prescriptive right is essentially one that is created by uncontested assertion of the right for a given period of time. The principle is based in many ways on a sort of estoppel in rem.

In India, the Limitation Act, 1963 is the legislation that governs the period within which suits are to be filed, with relevant provisions for delay, condonation thereof etc. The principle that pervades statutes of limitation at common law is that ‘limitation extinguishes the remedy, but not the right’ (See Venkatrama Aiyar J. in Bombay Dyeing v. State of Bombay AIR 1958 SC 328), this means that the legal right itself is not defeated, but only the right to claim it in a court of law is extinguished (This might sound technical, but assumes relevance in the context of cross-claims, set-off, etc.). [See, pg. 10, 193rd Report, Law Commission of India]

An exception to this general rule is the law of prescriptive rights, whereby the right itself is destroyed. Section 27 of the limitation Act, 1963 proclaims:

Section 27: Extinguishment of Right to Property

At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

This provision, when read with Articles 64 and 65 of the Schedule to the Limitation Act, 1963 establishes the law of adverse possession as it stands in India today. These two Articles both prescribe a period of twelve years within which the right to claim a particular property is extinguished, but the two differ in so far as the date on which such period of limitation begins to run.

Article 64 deals with cases where the dispute is over possession not necessarily based title, and in such cases the period of limitation runs from the time when the plaintiff was dispossessed of the property.

Article 65 deals with cases where the dispute is over title as such also, and in such cases the period of limitation runs from the time when the defendant becomes adverse to that of plaintiff.

The distinction between the two might seem almost semantical at first blush, but on further analysis, especially by placing the twin provisions in contradistinction to Articles 142 and 144 of the old Limitation Act, 1908, we see an extremely significant distinction emerge through. In the old Act, whether the alleged possessory right was based on title or not, the burden of proof always lay on the plaintiff, who had to prove that he was in possession of the property within 12 years of the suit. However, the new Act, pursuant to the recommendations of the First Law Commission (in its 3rd Report, 1956), has modified this to benefit plaintiff’s suits based on title. Article 65, in such cases lays the burden of proof (that the claim is barred by limitation) squarely on the defendant, in cases where the plaintiff bases his suit on title. [Illustrative in this regard is Jagamohan Garnaik v. Sankar Samal AIR 1990 Ori 124 Clearly, this is an improvement and confers a better bundle of rights on a person who claims to have title to the property, partially diluting the otherwise stern face of the law of adverse possession.

In conclusion, one must note that the law of adverse possession is no longer what it used to be, a tool of a powerful squatter buttressed by the lack of awareness on part of the true owner and an ancient law. Today, the law of adverse possession is viewed with great circumspection by the judiciary, and this is a trend that commenced abroad. With the recognition of property as a human right of sorts by the European Court of Human Rights [See Beyeler v. Italy (2000)], we see the classical conception of the law of adverse possession changing slowly but surely. There, the ECHR held:

“The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.”

This view seems to not have curried much favour with the House of Lords, evidenced by their decision in Pye v. Graham (2003) 1 AC 419, but nevertheless the Indian courts, and Justice Bhandari in particular seem bent on changing the law as it stands. In his decision in the case of Hemaji Waghaji Jat v. Bhikabhai Harijan (2008), he had stated:

“…the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is 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 benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives 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…

We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to loose its possession only because of his inaction in taking back the possession within limitation…

In our considered view, there is an urgent need of fresh look regarding the law on adverse possession.” 

He reiterated this view in his recent pronouncement in State of Haryana v. Mukesh Kumar (2011), this time going further and stating that “The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.”

No doubt, the law of adverse possession based as it is on rather archaic constructions of the right to property itself, needs to be revisited and revised. Until then, the fifty year old Limitation Act plods on. With changed notions of economic policy, in fact, it is interesting that the State continues with the law that it should have done away with years ago. Nevertheless, with a Supreme Court keen to reform the law in this regard, recourse is not far.

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12 comments on “The Law of Adverse Possession in India

  1. If at all the said law of adverse possession in which Interest of the public as already decided by the parliament of India in regard to the law of adverse possession is change there will be following negative effect on the people of India and on other systems also
    1 The said law is existing all over the world as it reduces litigation due to the said parameters in the limitation act of India.
    2 If this law of adverse possession is changed or abolished it would be unconstitutional would undermine the honorable Parliament of India will and facilitate unnecessary litigation which were already barred by The limitation act of India ,
    3 it would also facilitate crime as criminals would be hired by the post owner’s who already lost there title by adverse possession to take possession from the current owner,
    4 it would also harass lacks of people/family’s in India who have bought properties on oral agreements , part agreements in olden days by just paying money and taking over possession due to High illiteracy rate buying property by virtue of receipt’s or just taking over possession not hiring advocates due to money shortage and just ending up making documents if at all which were not completely recognized , authorized by state and did not / were not entitled to get their names mutated in various government records as morally, constitutionally these transactions were genuine but were not documented as per the current law
    Due to above said reasons and foreseen circumstances and as time passed the said purchases/people who were in possession of their respected properties also perfected their title by adverse possession as the claimants as per the government records in every state of India already knew that they are no more owners/don’t have right over the said property as such in rural areas and in urban areas people/families are saved by the virtue of adverse possession “The Limitation Act 1968 “for illiteracy of their forefathers/their own illiteracy . This law is being practiced all over the world , also it is evident in the Indian Evidence Act the person in possession is primafaci the owner of the property More “The Concept of adverse possession exist 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 came forward with a legal clam on the property “ ,but in India we still have this situation in rural parts and as well as in modern cities due to illiteracy, lakhs of legal knowledge y,money constraints etc as such The law of adverse possession by the virtue of The Limitation act of India 1968 DON’T NOT WARRANT ANY CHANGE
    6)The intention of such statutes is not to punish one who neglects to assert rights , but to protect those who have maintained the possession for the time specified by the statue under clam of right or color of title’s or even by possession maintaining the property
    A very important thing in mind the Hon’ble parliament/ Senior Buru carts who also have responsibility of India on there shoulder’s has to keep The said law of limitation act has 1 to 137 schedule’s( Parts ) in which time frame for suit’s , appeal, recovery of money , damages ,mortgage , recovery’s , declaration etc have been framed as in such matter’s also arguments can be given :- .
    As for recovery of money the time limit is 3 years in the act , what if a person who has a genuine clams , he files suit say after 8 years , he is barred by Law already notified by the parliament of India to recover the money which he has to recover and such arguments can also be address in 137 scedules of the limitation act , which will make the WHOLE act defuct and there will be no limitation of files suits , going to court’s law will go haywire court will be filled with unnecessary litigation , there will be No cap on litigation List attached ANX 1
    Such typearguments have also been addressed as they are in The Judgment of the hon’ble supreme court , about adverse possession which is covered in schedule 64 , 65 of limitation act of India like wise all this argument can be given in every section of The limitation act of india 1968 1 to 138 which means in every parliament session we will amended and abolish law , and The Supreme court is also not sure/left the decision or even not to take any decision on the Hon’ble Parliament , Government of India , Hon’ble President of India as such this judgment was outcome of a suit by Haryana government against a private person, moreoless if we go onto the true intension of Hon’ble Supere court , it just meant that government department should avoid/not clams title by adverse possession on private person land and in the said case the government failed to prove adverse possession/long hostile possession and other fowl in there own suit , even after 3 strong judgments of lower court . the police department of Haryana filed a appeal , which land to the above said judgment . this judgment is in a private case , such judgment , should not be treated to abolish or change a law already notified by the Government of India in the interest of public at large after due deliberation’s as such maximum, acting should be taken against the government department who filed such baseless case which made the government cut a sorry figure in front of Supreme court .
    such arguments can be made in every schedule , THEN THE WHOLE ACT ONE BY ONE WILL CHANGE and leave the country in docks , and end the use of limitation act
    There are innumerous benefits of The limitation act of India 1968 in which adverse possession is also schedule , which are stated above more over it is a protection to lacks of poor in India

  2. I agree with some portions of the above comments. The purpose of the Limitation Act is genuine that a person who is not interested or sleeping over his interest or right is to be considered as ‘no body’ to the particular interest or property. There is no point in thrusting the ownership, on a person who had already discarded it. If we are to run with the so called owners who deserted their interest and claims in their property, then we have to redefine concept of possession also. Even the possessor and occupier of any property for a long time, without even knowing the correct owner can not make any development and ultimately this position will give room to others to make false claim on the discarded property, even without the qualification of ‘possession’. According to me, the Limitation Act correctly punishes the persons who are closing over their eyes on their rights and who are ignorant of their land laws.

  3. I agree with all portions of above two comments,because when the law of limitation ACT is applicable in all fields,why it should be restricted in the field of Adverse possession. SANTOSH KUMAR SINHA December 9th,2012.

    • Yes the comment on adverse possession are correct. There is a need to have a limit on litigation and title . Adverse possession exists all over the world. In fact it used to be in British India also. The law of limitations is not practiced in true sprit if it would have been then there would be Les burden on the judiciary and people would get justice faster . I say we all should send a written request to law minister of India not to change the law of adverse possession as the law commission of India has sorted views on the subject. Kindly see law commission web site .

    • The commentary and assessment as given above is good and there must be some limitation. However, the onus must be on the person having adverse possession to the property to prove that the title holder did have knowledge of adverse possession for that much of duration. If possessor can’t prove then he must surrender.

  4. Hello……..i just wanna know something……i need advice related with property law…..can someone help me? and one more thing i wanna ask in Hindi

  5. hello …
    i need some information . we are having established unit in G.I.D.C.
    let’s say ABC industries . we are running this business since last 15 years.
    the land is registered by name of firm say ” X industries ” . X industries has been closed about 7-8 years ago. now as we are possessing this land since last 15 years how can we claim ownership of this land. is there any provision .

  6. We see lots of land grabbing cases where the owner is compelled to stay dumb fearing for life.You see so many land grabbing cases coming up in tamilnadu.The land owner is deprived of his rights by local tugs.Can you say there are no rowdyism in India and public are not afraid of these rowdyism and goondas .First wash out rowdyism then talk about this issue of negligence. I came across a document registered saying that the property belongs to mr x and I mr.Y occupied it and enjoying it for more than 50 years (which has no proof) .Im passing on this property to my wife and daughters, How can a government registration dept., register such a document, If one pickpockets a purse the owner of the purse can claim it only for a limited period if he claims later it is not acceptable and the pickpocket enjoys the ownership of the purse…………….. isthat the state of the law.If the owner is not claiming his right it is not just negligence there also other factors – threat to life from local tugs and rowdys, political influence. Few revenue and registration department officials not giving information or not sufficient information after a long delay when some information asked by the owner.Why doesnt the government make Encumbrance information made public on internet so that anyone can acces and view but not take copies of it..You can also get false ration cards without staying there . RTI act has come to help these land owners only from 2005 that to -some extent. This law by the british was brought by them not to protect the landowners but to.Whoever is powerful and pay tax it was fine. they just wanted there taxes.If we are going to continue the same thing and follow the Britishers why should we have independence and became republic.Is Law for mobs and not for individuals…………..

  7. We see lots of land grabbing cases where the owner is compelled to stay dumb fearing for life.You see so many land grabbing cases coming up in tamilnadu.The land owner is deprived of his rights by local tugs.Can you say there are no rowdyism in India and public are not afraid of these rowdyism and goondas .First wash out rowdyism then talk about this issue of negligence. I came across a document registered saying that the property belongs to mr x and I mr.Y occupied it and enjoying it for more than 50 years (which has no proof) .Im passing on this property to my wife and daughters, How can a government registration dept., register such a document, If one pickpockets a purse the owner of the purse can claim it only for a limited period if he claims later it is not acceptable and the pickpocket enjoys the ownership of the purse…………….. isthat the state of the law.If the owner is not claiming his right it is not just negligence there also other factors – threat to life from local tugs and rowdys, political influence. Few revenue and registration department officials not giving information or not sufficient information after a long delay when some information asked by the owner.Why doesnt the government make Encumbrance information made public on internet so that anyone can acces and view but not take copies of it..You can also get false ration cards without staying there . RTI act has come to help these land owners only from 2005 that to -some extent. This law by the british was brought by them not to protect the landowners but to.Whoever is powerful and pay tax it was fine. they just wanted there taxes.If we are going to continue the same thing and follow the Britishers why should we have independence and became republic.Is Law for mobs and not for individuals…………..When a person is transferred and is out of town or if the landowner is bedridden records can be created such as ration cards post office letters posted though you are not physically present you have proof of occupation postletters are going to be dropped there and not given in hand even register letters can be collected from post office then also this law stands good .If I could think like this imagine the tugs……….and land grabbers .

  8. Not exactly , what u r saying is not related to limitation act. It also cures title defeat by time this law is not only made by Britisher it is practiced all over the world.. I understand yr problem but 12 yr is a long time .. Adverse possession when the person start enjoying property as owner. Not just neglect of the paper owner..for goons political system there are different remedy as police case .writ but not recovering possession for 12 yr by a person claiming ownership There has to be limitation

  9. I am staying in a flat in Kolkata,there is no legal agreement and my land lady used to issue me a rent recipt which I used to pay month wise by account payee cheque from sept 2000 till June 2003. Then on 2003 she sent a letter saying that my term is over and I shall vacate the flat to which I move to court and got a status quo order claiming my self as tenant on the basis of no agreement and on the virtue of rent receipt.in the year 1.3.2001 she made an agreement for sale of my flat for rs 18,00,000/- and received Rs.1,00,000/- by account payee cheque as advance.she has kept the original agreement and give me a photocopy stating the zeros copy to be treated as original.On July 2003 I sent her a registered letter stating to compleat the deal and send me the original agreement duly stamped and signed in a stamp paper. But she did not accept the letter and was returned to me with the postal remark refused,then after three day I sent her the same letter under certificate of posting but this was refused as well then I keep on sending her letter after letter but with no result.she died 12.2.2011 and his son refused to acknowledge the agreement.since 2000 till 2012 I have been paying rent in the rent control office.please inform what to do? Do I have any right for adverse possession

  10. what about the case where a person bonafidely purchases a land and later on i9t comes to his knowlegde that the ownership is of government and is only pattadar in jamabandi what is the remedy for him

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