It is often heard from the people that there should not be a law that favours the interests of illegal possessors against the interests of the actual owners. Prima facie, the opinion seems justified. But, from another perception, it is also not fair that a property lies under the title of a person who has no care towards the property, and there is another person who takes care of it or makes a better utilization of the property but is compelled to abandon it just because the owner of that property suddenly recollects his title over it.
There’s a legal maxim as “Vigilantibus non dormientibus jura subveniunt”. It means that a person who is vigilant towards his rights is favored by law and not the one who sleeps over his rights and interests. Thus, as per this maxim, the actual owner who does not expresses his possession, he is considered to be sleeping over his rights of ownership to the property, and on this basis the law relating to Adverse Possession finds its ground.
Adverse Possession – the principle
The concept establishes that a person who illegally and exclusively enjoys a possession over a property, having knowledge of the actual owner to which it belongs since a period of more than 12 years (30 years in case of the property which belongs to the government), without any obstruction or objection from the actual owner, and protects his possessory right from the rest of the world, may claim a right of ownership over that property.
Nature of the right
Earlier, this right of adverse possession was invoked as a defence against the actual owner when they used to dispossess the person who was enjoying the possession of that property illegally for more than 12 years or 30 years, as the case may be. But, the position of law is now changed after the judgment of the Hon’ble Supreme Court of India in the case of Ravinder Kaur Grewal & Ors. Vs Manjit Kaur & Ors., Civil Appeal No. 7764 of 2014, where it is now established that Adverse Possession may not only be used as a ‘shield’, but may also be used as a ‘sword’.’.
Thus, now if a person qualifies all the grounds for a possession to be a valid adverse possession, he may file a suit under Section 5 of the Specific Relief Act, 1963, which lays down the provision for recovery of possession on the basis of entitlement under the provisions of law in force using the provision of Section 27 of the Limitation Act, 1963 which says that a person seeking recovery of possession after the prescribed period cannot recover such property due to the extinguishment of his rights over the property, and such prescribed period is mentioned under Article 65 of the Limitation Act as 12 years.
Earlier, this provision could not be invoked by the illegal possessor of the property, as he had no entitlement to the possession but was only able to file a suit under Section 6 of the
Specific Relief Act, 1963 which protects a possessor from illegal dispossession, against his will, by any person, even if the person is the true owner. In cases where such illegal possessor had such possession since more than 12 years, he used to invoke the provisions of Section 27 and Article 65 of the Limitation Act as a defence and used to exercise the right of Adverse Possession.
Who may claim Adverse Possession?
Any person who has obtained the possession in a manner which is hostile to the rights of the actual owner, and is not anyhow authorised by the actual owner to possess the said property may claim the title to such property using the principle of Adverse Possession, provided:
1. The possession is open and exclusive (i.e. not hidden or shared in any manner)
2. Must be uninterrupted, peaceful and continuous
3. The owner must be aware of such possession, and the possessor shall also know that who the actual owner is.
4. The period from when the person has the possession illegally and against the rights of the owner shall be proved.
Thus, anyone who has possession under the consent of the true owner cannot claim the right of Adverse Possession as it will not be hostile to the rights of the owner. However, suppose a person earlier obtained the possession under the consent of the actual owner and later possessed it illegally, in that case, he may claim adverse possession after 12 years since he obtained the possession illegally, which is under the knowledge of the actual owner, is uninterrupted, and has not been in possession by employing coercion.
Contributed by – Adv. Shivam Mani Tripathi