Actual Possession of an immovable property is one of the basic
criteria considered for ascertaining the ownership over such property. In other
words, a person can be in continuous possession of a property for several years
without title giving an opportunity to claim ownership of the property by
adverse possession. The person claiming ownership rights over the property on
the basis of having physical possession after the expiry of the stipulated time
of 12 years is termed as ownership by Adverse Possession. However, the real
owner is not deprived of his ownership of the property by the mere fact that
the some stranger is in continuous occupation of the same if the owner takes
action by enforcing his ownership rights within a reasonable time. The term
reasonable time is based on the provision envisaged in the Law of Limitation.
The occupation or possession can be termed as Adverse Possession
when a person is continuous possession of an immovable property, which
adversely affects and deprives the interest of the real owner over such
property. Thus, the term adverse itself indicates a hostile or unfriendly
possession, which is either expressed or implied thereby denying the title of
the true owner.
Ingredients to constitute
Adverse Possession:
The
mere fact that a person is in occupation of an immovable property does not by
itself convey or give an opportunity to claim ownership by Adverse Possession.
There are certain necessary ingredients that are to be proved for acquiring
title by way of adverse possession.
The foremost
pre-requisite to put-forth a claim for adverse possession is that the said
person has to be in actual possession of the property. Possession is quite
distinct from title and can be independent of it. Further there is a difference
between possession and mere occupation. Possession in the context of claiming
title by way of adverse possession means physical occupation, coupled with the
intention of holding the property under occupation to the exclusion of owner.
Thus, mere possession of a vacant piece of land or sharing of possession with
others without any exclusive possession or without hostile assertion against
the real owner would not constitute adverse possession as recognized by various
High Courts.
Another essential aspect
is that the person who intends to claim title by way of adverse possession must
be a person who exclusively holds the immovable property openly, peacefully,
enjoying without interruption by the true owner.
Adverse to the interest
of the Owner:
It is also important
that the stranger must be in possession of the property with intent to deprive
the rights of the real owner thereby adversely affecting the interests of the
real owner.
Generally, owners will convey possession of
the property in favor of another on the basis of some kind of contract, whether
express or implied. For instance, a person can be in occupation of a property
as a tenant or licensee or in any other capacity, which based on some
relationship. Unlike the above, in the case of adverse possession, the person
in occupation of the property need not be necessarily a trespasser or a
stranger to the owner and the fact that such a person is in continuous
occupation of the property is well within the knowledge of the real owner, who
does neither object nor bother to interrupt such possession.
Further, the people residing in the
vicinity or neighborhood must also know about the stay of that particular
person in the property. In other words, the occupation of the property by that
particular person must receive adequate publicity. It is not necessary that the
true owner should have actual knowledge of the adverse possession so long as it
is open to be ascertained and the interested parties have knowledge of it.
However law does not help a wrong-doer who obtains the possession of another’s
property in a clandestine manner and has concealed the knowledge of possession
from the person who is the rightful owner.
Apart from the above, it is also very important that the person claiming
ownership over the property without having lawful title can claim the property
by way of adverse possession only after completion of 12 years from the date of
taking over possession. Possession must be open, peaceful and to the knowledge
of real owner for contusing period of 12 years
However, the mere fact that the person has
been in actual possession of the property for more than 12 years itself does
not give a right of adverse possession. The period of 12 years, provided under
the Limitation Act, has to be proved along with sufficient evidence of
existence of all the above explained essential ingredients.
Further, the owner should have failed to assert his right over
the property in spite of having knowledge about the occupation of the property
by a stranger. Law does not favor those who sleep over their rights inspite of
being aware of the fact that the occupation of the premises by the stranger is
hostile to the ownership rights. In fact, Law of Limitation provides an
opportunity to the owner to assert and enforce ownership rights within a period
of 12 years, which runs from the date when there is an intention of the person
claiming adverse possession to acquire the property which belongs to another
person and runs against the interest of the true owner having a right of
immediate possession.
Thus, the mere fact that
the person is in possession of the property does not confer ownership rights
unless the same is accompanied by an open assertion of hostile title. In fact,
the possession turns adverse only when the right of the possessor and the true
owner does not match. The person holding possession of the land should hold the
same on behalf of some person other than true owner, while the true owner all
along has a right of immediate possession of the property, but never makes an
endeavor to enforce his right over the property.
Instances of Adverse Possession:
If there is
a situation that possession has been taken over by a trespasser or any other
person, whose possession was originally lawful, but became unlawful
subsequently. The trespasser claims ownership over the property, while the
owner is not inclined to take any action. The trespasser starts paying taxes
and starts dealing with the property for more than 12 years claiming interest
against the owner. In such case, the chances of the owner losing the property
are very high.
There is no law which
says that possession cannot be acquired by force or by a person who does not
have title. All that matters is the mode in which the title is acquired. The
rationale behind the concept of law of adverse possession is that Law does not
always help those who sleep over their rights without asserting their rights
within the permissible period when some person is deliberately trying to act
which would adversely affect the interest of the owner.
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