THESIS
Adverse possession law allows occupiers to claim legal title to land after continuous and hostile occupation. This paper researches on how adverse possession is used in legal aspect and the times when it have proved false by the legal system of India. This paper will also give a critique analysis of the use of adverse possession in the case M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors (Herein after referred to as “Ram Janmabhumi case”) and how one the most important legal aspect was used.
INTRODUCTION
Adverse possession is contained in Article 65 Sch-1 of the Limitations Act, 1963 which is a kind of possession where a person with no force or stealth has taken over a person’s property and also not under the licence of the owner, it should be open, peaceful and publicly accepted without any interruption for a certain time which stands between 12yrs for private property and 30yrs of ownership on government property. The Essentials of Adverse possession are;
- Continuous Use: The possessor must show that they have been in continuous and uninterrupted possession of the property.
- Hostile and Adverse Occupation of the Property: The possession must infringe on the rights of the actual owner.
- Open and Notorious Possession: The person seeking adverse possession must occupy a property in a manner that is open, notorious, and obvious.
- Actual Possession: The possessor must actively possess the property, varying up to 12 to 30 years. Possession should be involved in maintaining the land and, paying taxes.
- Exclusive Use: The property is used solely by the possessor excluding any others from using it as well.
The Supreme Court of India in the case of Karnataka Board of Wakf vs. Government of India (2004). Where the issue raised was on this ground that Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
In the case of Ravinder Kaur Grewal vs Manjit Kaur on 7 August, 2019 the question arised was that weather the person who has perfected his title of adverse possession and the property is sold by the owner after extinguishment of his title and can claim the title of adverse possession using article 65 of the Limitations Act, 1963 for the title declaration or possession restoration against a defendant whose title is extinguished due to Adverse Possession or against another disposer. The hon’ble
As discussed above, now we are going to take a look into the facts of the case of “Ram Janma Bhoomi” the main question arises is that if Adverse Possession is applicable in the case as it clearly mentions is that for adverse possession to be applicable, there should be Peaceful, open and continuous and the person/trespasser should live there with the knowledge of who the real owner is and the owner of the house should also have the knowledge of the person staying there. The muslim community contested on the assumption without admitting the fact that there existed a hindu temple site on where Emperor Babbar made a mosque. For 433 years, Muslims have possessed over the property and there was no legal dispute till the starting od the suit in 1989. They also contested that it was the hindus who entered the mosque and throned their god inside the mosque.
The reason why the hon’ble Supreme Court did not find over the adverse possession of Muslims was because of the archeological finding during the investigation in the area of excavation there were significant traces of a prehistoric civilization and existence of underlying structures dating back to the twelfth century AD. The findings on the nature of the structures were clearly indicating it to be of Hindu religion and it was stated that the mosque had been constructed on the foundations of a preexisting structure. After the excavation of the area, it had also been found that there were circular shrine together with a makara pranala indicating the existence of Hindu worship practices dating back to eighth to tenth century.
By- Tejas Sikka (intern)