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A general introduction to the law of adverse possession in India

[ecis2016.org] Here’s all you need to know about the law of Adverse Possession in India.

A house owner will never be willing to relinquish control over their property to anybody. However, there is a law that favours outsiders rather than homeowners. If someone per se-tenant has inhabited a property for more than 12 years, that person will be given preference in a court of law rather than the property’s owner. In legal terms, this is called adverse possession in India.

You are reading: A general introduction to the law of adverse possession in India

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What is adverse possession in India?  

According to the legal definition of adverse possession, a person who has lived on a piece of land without a title for 12 years with the owner’s consent could be able to claim ownership of the land in question. Article 65 of the Limitation Act lays forth the principles underlying the notion of adverse possession.

The term ‘Adverse Possession’ was established by the Supreme Court in the case of ‘Amarendra Pratap Singh v. Tej Bahadur Prajapati’. It is a circumstance in which the real owner of a piece of property loses their ownership rights as a result of their failure to remove a trespasser from the property within a set period.

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Example of adverse possession in India

For example, if X, the landowner, assigns his property to Y for the purpose of maintenance, and X returns after 12 years to recover the property, the court will not judge the lawsuit in X’s favour.   

There are two types of adverse possession:

  • Adverse from the beginning, or
  • The possession becomes adverse afterwards

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What are the time limits for adverse possession? 

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In the case of a private residence, the allotted time frame is 12 years long. However, the government, state, or public land or property has a 30-year time limit. Once the trespasser or the tortfeasor breaches upon or damages the property of the real owner, the allotted time frame begins to run.

When calculating the statutory time, it is important to keep in mind that in certain circumstances, the case is stopped or postponed. Some of the examples are:  

  • Legal proceedings between the real owner and their legal guardian.
  • Circumstances in which the true owner is either under 18 years of age or of unsound mind.
  • Owner serving in the armed forces.

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Can a tenant claim adverse possession?

If a renter seeks to claim ownership of a property via adverse possession, they must meet the following requirements:

Actual possession

In this scenario, the tenant must take action to reclaim the property as his own to be successful. There must have been occurrences in which the tenant exercised jurisdiction over the land in his or her capacity as the owner. 

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Continuous

The original owner must have been away for at least 12 years for the renter to claim ownership rights. If the renter has been in charge of the property for 12 years without the original owner’s presence, and the property has not been dispersed during this time, the tenant gets complete control over the property.

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Exclusive

The tenant is required to have made specific improvements, additions, and other changes to the property. This further establishes the tenant’s exclusive title to the property and provides them with the legal authority to assert a claim to property ownership.

Open

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For this condition to be met, the tenant must demonstrate to third parties that they have lived on the property for at least 12 years. A few ways to achieve this include establishing a property line, adding extensions and renovations, and maintaining excellent relations with the property’s neighbours. The importance of interacting with your neighbours cannot be overstated.

Hostile

Tenants in this situation are obligated to seize the existing owner’s rights. Tenants may claim ownership of a property if the title deed is defective by asserting that the agreement is unlawful. If, upon the termination of the agreement, the tenant continues to reside on the property for 12 years, or if the owner does not take any action to regain ownership rights, the agreement is considered dissolved. In such circumstances, the tenant is given a reasonable opportunity to assert ownership of the property.

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When can an adverse possession not be claimed?

Many high courts, including the Supreme Court, have ruled that determining an adverse title of possession is not only a legal problem but also a factual one. The case must be resolved solely on the evidence presented by the participants. Without proof, claims are not sufficient. There should be evidence of open, continuous, and hostile possession included in the document as well. Adverse possession claims cannot be upheld in the cases listed below:

Permissive possession 

A permissive possession cannot be transformed into an adverse possession, particularly if the possession has been permissive from the beginning. With or without direct proof, it is possible to conclude that possession is permissive based on the surrounding circumstances. 

When the landlord expresses the desire that permissive possession is terminated, the permissive possessor is required to cease entering the property; if he fails to do so, his continued entry into the property will be deemed wrongful, and he will be liable to surrender possession along with any profits earned from the property.

Lack of animosity or purpose

When claiming exclusive ownership, it is necessary to demonstrate the animus possidendi (intent to possess) by how the property is occupied, and this is dependent on the nature of the property. Because of the fiduciary connection that exists between the parties, it is generally established that the agent has the principle in their possession.

Absence of a legally valid claim

In Palaniyandi Malavarayan v. Dadamalali Vidayan, it was argued before the Andhra Pradesh High Court that the right to the trusteeship of a temple cannot be obtained by adverse possession as long as there is no lawful trustee who can allege to recover the office from the person who claims to hold it adversely to him.

Anyone asserting adverse possession must establish the following:

  • When was the possession acquired?
  • How did they get it?
  • Whether or not the owner was aware of the possession?
  • How long have they retained possession?

Source: https://ecis2016.org/.
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Source: https://ecis2016.org
Category: Must Knows

Debora Berti

Università degli Studi di Firenze, IT

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