The Doctrine of Adverse Possession Explained

In India, owning a property is not an easy task. After saving up enough to buy a decent property, owners are always under a constant threat of losing their property through some scam or dispute. Did you know? If a property is occupied by someone for more than 12 years, they will be favoured towards it in the court of law, not the owner. This is known as the adverse possession law. Find out how adverse possession of land works in India and how to file an adverse possession claim.

What is Adverse Possession in India?

As mentioned earlier, Adverse Possession in Land Law is a legal principle that was introduced to the Indian real estate markets and legal systems by the British Rulers.

Adverse Possession Meaning: Adverse Possession means acquiring a property through unsolicited means. However, it’s an accepted method and common in India. According to the law of adverse possession, if a person continues to be in possession of a property for 12 years, they are granted the ownership rights to the property.

In simple terms, if a tenant continues to occupy a unit for 12 years without any interruption from the owner, they get owner status for the property. The law was brought in to improve land usage but for the years, adverse possession has given way to advance possession, a form of hostile possession, where the rightful owner is denied any claim to their property. Property owners need to be aware of these adverse possession laws to avoid any hassle or dispute. 

Adverse Possession Law

The law of Adverse Possession in India is governed by the principle of The Limitation Law of 1963. As per adverse possession under limitation act, if over a due course of time or period, if an appeal is not made to revise any limitation, the current scenario of titles continues. In terms of adverse possession, the period is defined to be 12 years. According to the Indian legal system, if a property owner fails to make a claim towards their property for 12 years, and the same tenant continues to occupy the property for 12 years, the ownership rights to the property is transferred to the tenant. These are the basic rules of adverse possession limitation act in India. 

Essentials to Prove Adverse Possession

If one intends to establish adverse possession in the Limitation Act of 1963, the burden of proof will rest on them. To successfully establish adverse possession, the following elements must be proven in court:

1. Date of possession: The date on which adverse possession in India of the property began must be established. This date is critical as it determines the 12-year statutory period required for adverse possession.
2. Knowledge of owner and neighbours: It is necessary to demonstrate that the true owner had knowledge of the possession and the date when they became aware of it. Additionally, it is essential to establish that immediate neighbours were aware of the possession and the date when they became aware of it.
3. Peaceful possession: The possession must have been peaceful and not obtained by coercion. The possession must have been in opposition to the true owner's expectations.
4. Lack of action by the owner: It must be proven that the true owner did not take any action against the possession despite having knowledge of it. It must be proven beyond reasonable doubt that the owner was aware of the possession.
5. Exceptions: It is also necessary to demonstrate that none of the exceptions to the rule of adverse possession are applicable in the case.
6. Continuous possession: It must be established that the possession of the property was continuous without any interruptions by the owner or any other person.

what are The 5 Requirements for Adverse Possession?

Under some circumstances, the legal concept known as adverse possession lets someone claim ownership of land or property after having possession for a designated duration. To properly claim adverse possession, nevertheless, a number of key legal criteria have to be satisfied and submit the documents needed for adverse possession. These requirements guarantee that the claim is legally accepted and legitimate.

Continuous and Uninterrupted Possession

Continuous, uninterrupted possession is, first and most importantly, necessary for unfavorable possession. The claimant has to have the property for the specified term free from intervention by the owner. While for government property, it is 30 years, for private land, the possession must remain for a continuous 12 years as per the adverse possession law. The claimant has to live on the land without any legal action launched by the original owner to recover it during this period. The claim for adverse possession is void should there be a break in possession or the correct owner file legal action within the term.

Hostile or Adverse Possession

As per the adverse possession limitation act, the possession has to be hostile or negative to the rights of the original owner. The claimant's ownership is, therefore, against the interests of the genuine owner and without their approval. The possession should not to be friendly or based on a lease or arrangement with the original owner. The claimant basically has to treat the property as their own, and their acts must show their intention to permanently possess and control it against the rights of the legitimate owner.

Exclusive Possession

Adverse possession also requires the claimant to be exclusively possessive of the land. The property must, therefore, be in the exclusive control of the claimant and not shared with the original owner or those with rights to it. Actions like fencing the land, paying property taxes, or upkeep of the property help to show exclusive ownership.

Clear and Notable Possession

As per the law of adverse possession, the property must be open and well-known; hence, the original owner should be able to see it clearly. The claimant cannot covertly or without notice hold the property. The original owner, or anybody looking over the property, should be able to perceive that someone else is using it clearly. The claimant should, for instance, consistently utilize the property in a manner that is obviously visible and apparent or makes modifications on the land or constructions.

Property Tax Payments

Sometimes, the claimant might also have to show that they paid property taxes in order to show their desire to regard the land as their own. Although paying taxes on the property might prove that the claimant has exercised control over the property for the necessary duration and with the goal of ownership, this is not an essential need in all governments.

When Can Adverse Possession Not Be Claimed?

Adverse possession may not be claimed in certain circumstances, as exceptions exist in the doctrine of adverse possession.

1. The possessor cannot claim adverse possession if they had no ulterior motive or animus possidendi to exclusively possess the property, or if there is a fiduciary relationship between the landlord and tenant.
2. If the tenant was permitted by the landlord to possess the property, it will not be considered adverse possession. However, if the landlord terminates the permissive possession and the tenant does not vacate the property, they may be liable for wrongful possession and may need to pay compensation.
3. Adverse possession cannot be claimed if there is no valid claimant for the property, i.e., if nobody is claiming ownership of the property. In such a case, the right over the property cannot be acquired through adverse possession.

Documents Required to Prove Adverse Possession in India

To prove adverse possession in India, the following documents are typically required:

1. Property deed or title: The deed or title of the property, along with the survey number and details of the location, is essential to establish the ownership of the property.
2. Tax receipts: The property tax receipts for the duration of the adverse possession, which proves that the possessor has been paying taxes and has been in possession of the property.
3. Utility bills: The utility bills like electricity, water, and gas bills for the duration of possession can help establish the exclusive possession of the property.
4. Affidavits from witnesses: Affidavits from neighbours and witnesses who have seen the possessor in exclusive possession of the property for the statutory period can be used to prove adverse possession.
5. Other relevant documents: Any other documents that establish the continuous, exclusive, and peaceful possession of the property by the possessor can be used as evidence to prove adverse possession.

Exceptions to the doctrine of adverse possession

1. If the owner is a minor.
2. If the owner is mentally unwell.
3. If the owner serves in the armed forces.

Property disputes continue to rise in the country and owners should be very careful to avoid such circumstances. Being aware of these laws will help the owner learn how to prove adverse possession in a court of law and how to prove possession of land.

Steps to Save your property from adverse possession: How to Prove Adverse Possession in India?

Although it’s considered to be an illegal act, the Indian legal system continues to reward the principles of adverse possession based on the sole fact that the property was neglected by the owner for 12 years. This could be due to the sheer lack of knowledge on the owner’s part and there are instances where the judiciary has sided with the owner. However, the trial went on for years and the hassle faced by the original owner could have been avoided. 

The honourable Supreme Court on Adverse Possession in 2019 stated "By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.'

For proving Adverse Possession, these terms need to be explored: 

Continuity in adverse possession: If a property is taken through adverse possession, the possession should be uninterrupted for the specified period of 12 years.

Actual possession: The possessor must occupy the property completely through actual possession. Actual possession includes fencing the property, construction of the house, grazing cattle, erection of shed in the land

Exclusive possession: The occupier should prove sole ownership for 12 years towards the property. 

Open possession: The possession can’t be forced or without informing the owner or through their license. 

The possessor must prove the following in front of the court: 

• The date of possession.
• The possession was known to the public.
• The nature of the possession.
• The continuity of the possession.
• The duration of the possession.

These are the important requirement to prove adverse possession 

Can Tenant Claim Adverse Possession?

Tenancy through lease or rental agreement is generally not considered under the adverse possession law in India. However, under certain circumstances, if the lease has expired or if the owner has defaulted on particulars mentioned in the agreement, the tenants have taken leverage of the situation to file for ownership through adverse possession. The set timeline for the owner to take action is for 12 years. As soon as there is a breach in the contract, the owner should look for vacating the tenants to avoid adverse possession. If after the termination of the agreement, the tenant has paid rent to the owner in any form, they can’t apply for ownership through adverse possession. 

Tenant Rights After 10/12 Years in India

Under Indian law, tenants who have lived on a property for a protracted length of time may have specific rights. So, can a tenant claim ownership of property after 12 years? Tenancy's terms and circumstances might affect a tenant's rights at ten or twelve years of occupancy. The kind of their lease agreement and local legislation will determine the particular rights that renters are entitled to.

Rights Under Rent Control Acts

Under most rent control laws, tenants who have lived in a home for a considerable length—often ten or more years—are usually shielded from eviction. Many times, these rules restrict the grounds for eviction; renters may only be sent out in response to non-payment of rent, contract violations, or if the landlord really needs the property.

Adverse Possession

Sometimes, during a period of 12 years of continuous and unfavorable occupancy, renters might be entitled to claim ownership of the property. But this assertion is susceptible to the same criteria of adverse possession described above, including the necessity of exclusive and apparent possession.

Lease Renewal

Once their lease ends, long-term renters may be entitled to seek a renewal of their agreement, particularly if the original contract allows for such a renewal. Sometimes, if renters have lived in the home for a significant length of time, they might even be entitled to negotiate conditions but a tenant cannot claim adverse possession. 

Security of Tenure

A tenant who has lived on a property for a long period might potentially be entitled to stay under certain circumstances. We call this your entitlement to security of tenure. Ten to twelve-year tenants may be entitled to alternate accommodation or compensation should they be kicked out. 

Right to Transfer Lease

Additionally entitled to transfer or sublease the lease to another person are long-term renters. As per the adverse possession limitation act, this provision lets renters legally sublease the property or forward the lease to another tenant. 

Difference Between Adverse Possession and Right to Property

Two separate legal ideas are adverse possession and property rights. Their applicability and scope vary greatly, even if they look identical. Whereas the right to property guarantees protection for the owner against illegal deprivation, adverse possession deals with the acquisition of property via long-term use and occupancy. Let’s compare adverse possession vs right to property:

Adverse Possession

Adverse possession lets someone claim ownership of the property after continuous possession for a stipulated period—usually 12 years. The claimant has to show that the ownership was hostile, exclusive, and without permission of the legitimate owner. If the claimant satisfies the required legal requirements, sometimes they might even gain government property via adverse possession.

Right to Property

Under Article 300A of the Indian Constitution, a basic right guaranteed is the right to property. This right protects people against random government or other dispossessed of their property. This power is not unqualified; however, it may be regulated or constrained depending on the legislation or in line with eminent domain.

Adverse Possession Supreme Court Judgments

Several important rulings rendered by the Indian Supreme Court have helped to clarify the legislation on adverse possession. The adverse possession limitation act provide significant precedents and offer direction on how courts should view claims for adverse possession.

• K.K. Verma vs Union of India (1954): The Supreme Court stressed that the claimant of adverse possession had to establish continuous, uninterrupted possession free from intervention by the legitimate owner.
• Lal Chand vs Union of India (2002): If all legal requirements are satisfied, the Court said, thirty years of government land ownership might result in a valid claim of adverse occupation.
• R. v. Govt. of NCT Delhi (2009): The Court underlined that even 12 years of simple ownership is not enough. The claimant has to show that the ownership violated the rights of the original owner.
• State of Haryana vs Mukesh Kumar (2013): The decision underlined that, particularly with regard to government land, adverse possession claims had to satisfy all legal criteria.
• Amar Singh vs State of Rajasthan (2019): As part of the adverse possession claim, the Court underlined once again the need to show continued possession and tax payment.

Difference Between Adverse Possession and Homesteading

Point of Difference	Adverse Possession	Homesteading
Ownership of Property	The property is owned by someone else, and possession is obtained unlawfully by the possessor.	The property has no legal owner, and ownership is obtained by being the first person to claim and use the land.
Transfer of Ownership	Ownership is transferred to the possessor after 12 years of continuous possession, provided that the true owner did not take any action to reclaim the property.	Ownership is obtained by the first person who claims and uses the land, regardless of the duration of possession.
Neglect of Original Owner	Ownership is transferred due to the neglect of the original owner to take action against the possessor.	There is no original owner to neglect or take action against the possessor.
Purpose	Formalises the legal concept of squatter's rights.	Formalises the traditional Homestead Principle, which allows individuals to acquire ownership of resources found in nature by using or possessing them.

Adverse Possession Examples

Most of the rules and regulations of Adverse Possession are formulated through landmark cases. Let’s take a look at a few of these landmark cases and how they have shaped the current guidelines about adverse possession:

1. Amarendra Pratap Singh v Tej Bahadur Prajapati

“A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over 12 years results into extinguishing of the latter’s title.” 

This important guideline was derived from this historic case. 

1. SM Karim v Mst. Bibi

This landmark case established that adverse possession must be continuous, without force and a plea need to be filed informing the period of the adverse takeover. 

1. Karnataka Wakf Board v Government of India

It was established that the possessor needs to establish possession of 12 years without the motive of illegal occupancy but due to neglect by the property owner. 

1. Dagadabai v Abbas Gulab Rustum Pinjari 

In this landmark case, it was established that the possessor must admit ownership of the suit after informing the owner.

1. Mallikarjunaiah v Nanjaiah

The court stated, “Mere continuous possession, howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner.”

It is very evident that the laws are in a state of judicial flux and need a revival code rather sooner than later. The rising number of property frauds and disputes can be avoided if the system is revised according to a uniform code. The laws and guidelines related to adverse possession have changed constantly and the verdict depends on the judicial bench. It’s advisable to avoid these circumstances. Contact the legal experts at NoBroker and get a detailed legal inspection of your property and documents. Click here to select a legal expert. 

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