Challenges to Adverse Possession on Registered Land

The term adverse possession is a legal doctrine and also known as “squatter’s rights.” According to it, a person who does not have any legal title over the property attains ownership based on continuous possession over the property without the consent of the actual owner.

 

Adverse possession - a harsh law

 

Hon’ble Supreme Court has observed that the law of adverse possession is stringent strict for actual owners and a boon for a dishonest person who illegally acquired possession of the property of the real owner.” 

So, what is adverse possession?

 

In simple words, it can also be called as “land grabbing.” Origin of this type of land taking lies in the national policy called “Land to the Tiller”. 

 

Adverse possession recognized under the Limitation Act

The Limitation Act, 1963, is a statute that governs the period within which suits are to be filed. The law of limitation is based on the norm that ‘limitation extinguishes the remedy, but not the right,’ i.e., the legal right itself is not defeated. Only the right to claim it in a court of law is extinguished as the period to claim the right extinguishes. Thus if the actual owner does not take timely action against the intruder, he loses the right to claim his title.

 

Essentials of Adverse Possession: 

 

The possession must be actual – The possessor must be physically present and using the property. Paying the taxes and merely claiming it without possession is insufficient. What is required is an entry on the land, whether legal or not. A trespass may begin adverse possession, but the property’s use must be more than temporary usage.

The possession must be open - The possessor must possess land openly for the entire world, as a real owner. If the land occupation is in secret, then the occupant does not have any legal rights over the property. Clearing, fencing, cultivating, or improving the land are a few examples of openly and notoriously using the property. The owner must have knowledge of adverse use. 

The possession must be exclusive–The plea of adverse possession will help to get the title if the claimant has had exclusive possession of the land. It means the sole physical occupancy. The possessor should hold the property as his or her own, opposing all the other claims related to the property he or she is possessing.

The possession must be hostile–- It means that the claimant must occupy the land in hostility to the real owner’s rights.

The possession must be continuous & uninterrupted. All the essentials of adverse possession must be met at all times through the statutory period to claim the plea of adverse possession. The statutory period is the amount of time the claimant must hold the land to claim “adverse possession successfully”. 

 

When the plea of adverse possession cannot be taken: 

 

1. Permissive possession- Plea of adverse possession is not available if possession is permissive i.e., one holds possession on behalf of others. e.g. a tenant.  
2. Possession under the agreement - If the possession of the land is given by one party to another party as part performance under an agreement to sell as provided under Section 53A of Transfer of Property Act, 1882, the plea of adverse possession not available. 
3. Possession by co-owner - A co-owner is the representative of all other co-owners and thus cannot take the plea of adverse possession.   

 

Adverse possession – a sword and a shield:

 

In the case of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors, it has been observed by the bench that once the right, title or interest is acquired over the property by way of adverse possession:

• The trespasser can use it as a shield to defend his right 
• The trespasser can use it like a sword by filing a suit for declaration of his title as an owner. He can file a lawsuit for possession if the actual owner has dispossessed him.

 

The approach of Judiciary: 

 

In the present scenario, the law of adverse possession is beheld with great caution by the Indian Judiciary. It is yet to be answered if it is fair and serves any public interest that, after taking into consideration the lack of care and negligence on the part of the actual owner, he is deprived of his title. The land is transferred to those in illegal possession. 

 

As one of the top law firm in India, we provide legal advice to all the NRIs who are the most impacted by the law of adverse possession. Adverse possession is one of the legal services we provide to our clients who are facing this malady. As a premier legal property management firm we provide lawyer advice on how to file for adverse possession, adverse possession of unregistered land/registered land and legal help regarding kabja.