Involving in a case of adverse possession inspires me to write this article.
Latin maxim 'Nullum tempus occurrit regi ( no time runs against the King) is the root of the doctrine of adverse possession. Adverse possession means a possession of an immovable property without having title of such property. A person, not having legal title of ownership of an immovable property can claim for immovable property.
1) Historical Background:
It is interesting to know the fact from where the Doctrine of Adverse Possession is begun to apply. For this purpose, let our vision be taken to the historical events. For this, I rely upon the certain paragraphs of the judgements of Hon'ble Supreme Court in a case of State of Haryana vs. Mukeshkumar and others, in petition for Special Leave to Appeal (Civil) no. 28034 of 2011 wherein Hon'ble Supreme Court has enlightened the historical back ground of doctrine of adverse possession. I would like to quote the relevant paragraphs of it.
paragraph no. 30: '' The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of "seisin" from his ancestry. Many felt that the original law that relied on "seisin" was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title"
seisin means possession, more particularly of a land.
paragraph no. 31: " The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity."
paragraph no. 32: "During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land."
2) Example of Adverse possession:
'A', having title of an immovable property, is an owner of that property. Accepting the fact that 'A' is the owner of the property, 'B' has possessed that property of 'A' long, openly, peacefully, continuously and uninterruptedly for the period of at least more than 12 years and this fact is well within the knowledge of 'A' but 'A' has not taken any action for getting the possession back from 'B'. 'B' is entitled to claim for this property on the basis of the doctrine of adverse possession.
3) Ingredients of Adverse Possession:
It is very essential to know what are the ingredients of adverse possession. How one can justify that it is the case of adverse possession or on what grounds the adverse possession are justified or which ingredients are proved for establishing the case of adverse possession. The following ingredients of adverse possession are required to be satisfied by a person who institutes a suit for adverse possession.
a) The possession of the suit property with the plaintiff must be established.
b) Animus possidendi ( intention to possess) adverse to the knowledge of the real owner.
c) possession is adverse or hostile to that of the true owner.
d) wrongful dispossession of rightful owner
e) plaintiff has to establish by evidence that permissive possession over the property becomes adverse to the interest of the real owner.
f) plaintiff has to establish perfect title of a suit property by way of adverse possession.
g) nec vi, nec clam, nec precario means an adverse possession is proved only when possession is peaceful, open, continuous and hostile.
4) Mere possession of property is not amount to adverse possession:
In a case between Ram Nagina Rai & Anr. Vs. Deo Kumar Rai(Deceased) by Lrs. (civil appeal no. 7266 of 2013 ), Hon'ble Supreme Court in paragraph no. 15 of the judgement held, " there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property. This would be in clear violation of the basic rights of the actual owner of the property. There is nothing on record to show that the defendants' permissive possession over the property became adverse to the interest of the real owner, at any point of time...."
5) Plaintiff has to admit the ownership of the true owner:
As per the judgement of Hon'ble Supreme Court in a case between Dagadabai (Dead) by L.Rs. vs. Abbas@ Gulab Rustum (Civil Appeal No. 83 of 2008) , it was held in paragraph no. 21, "it is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divert the true ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit that ownership of the true owner and the true owner has to be made a party to the suit to enable the Court to decide the plea of averse possession between the two rival claimants."
6) When Owner's right to property is extinguished:
If the owner of the property is not vigilant for his legal rights. Law does not protect to those who sleep over their rights for many years. Law helps only to those who are vigilant for their rights. Section 27 of the Limitation Act is the negative safeguard for the protection of rights of an owner of the property. It indicates the red light to the owner of the property to control the rights of the person (except owner of the property) who is in possession of such property.
Section 27 of the Limitation Act,1963
Latin maxim 'Nullum tempus occurrit regi ( no time runs against the King) is the root of the doctrine of adverse possession. Adverse possession means a possession of an immovable property without having title of such property. A person, not having legal title of ownership of an immovable property can claim for immovable property.
1) Historical Background:
It is interesting to know the fact from where the Doctrine of Adverse Possession is begun to apply. For this purpose, let our vision be taken to the historical events. For this, I rely upon the certain paragraphs of the judgements of Hon'ble Supreme Court in a case of State of Haryana vs. Mukeshkumar and others, in petition for Special Leave to Appeal (Civil) no. 28034 of 2011 wherein Hon'ble Supreme Court has enlightened the historical back ground of doctrine of adverse possession. I would like to quote the relevant paragraphs of it.
paragraph no. 30: '' The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of "seisin" from his ancestry. Many felt that the original law that relied on "seisin" was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title"
seisin means possession, more particularly of a land.
paragraph no. 31: " The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity."
paragraph no. 32: "During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land."
2) Example of Adverse possession:
'A', having title of an immovable property, is an owner of that property. Accepting the fact that 'A' is the owner of the property, 'B' has possessed that property of 'A' long, openly, peacefully, continuously and uninterruptedly for the period of at least more than 12 years and this fact is well within the knowledge of 'A' but 'A' has not taken any action for getting the possession back from 'B'. 'B' is entitled to claim for this property on the basis of the doctrine of adverse possession.
3) Ingredients of Adverse Possession:
It is very essential to know what are the ingredients of adverse possession. How one can justify that it is the case of adverse possession or on what grounds the adverse possession are justified or which ingredients are proved for establishing the case of adverse possession. The following ingredients of adverse possession are required to be satisfied by a person who institutes a suit for adverse possession.
a) The possession of the suit property with the plaintiff must be established.
b) Animus possidendi ( intention to possess) adverse to the knowledge of the real owner.
c) possession is adverse or hostile to that of the true owner.
d) wrongful dispossession of rightful owner
e) plaintiff has to establish by evidence that permissive possession over the property becomes adverse to the interest of the real owner.
f) plaintiff has to establish perfect title of a suit property by way of adverse possession.
g) nec vi, nec clam, nec precario means an adverse possession is proved only when possession is peaceful, open, continuous and hostile.
The essentials of adverse possession
were succinctly summed-up by Hon'ble Supreme Court in Karnataka Board of Wakf v. Govt. of
India (2004) 10 SCC 779 as “In the eye of the law, an
owner would be deemed to be in possession of a property so long as there is no
intrusion. 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. (See S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), Parsinni
v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997)
7 SCC 567). Physical fact of exclusive possession and the animus possidendi to
hold as owner in exclusion to the actual owner are the most important factors that
are to be accounted in cases of (2004) 10 SCC 779 Civil Appeal No. 2238
of 2016 Page 19 of 25 Page 20 nature. Plea of adverse possession is not a pure
question of law but a blended one of fact and law. Therefore, a person who
claims adverse possession should show: (a) on what date he came into
possession, (b) what was the nature of his possession, (c) whether the factum
of possession was known to the other party, (d) how long his possession has continued,
and (e) his possession was open and undisturbed. A person pleading adverse possession
has no equities in his favour. Since he is trying to defeat the rights of the
true owner, it is for him to clearly plead and establish all facts necessary to
establish his adverse possession. [Mahesh Chand Sharma(Dr.) v. Raj Kumari
Sharma (1996) 8 SCC128)."
4) Mere possession of property is not amount to adverse possession:
In a case between Ram Nagina Rai & Anr. Vs. Deo Kumar Rai(Deceased) by Lrs. (civil appeal no. 7266 of 2013 ), Hon'ble Supreme Court in paragraph no. 15 of the judgement held, " there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property. This would be in clear violation of the basic rights of the actual owner of the property. There is nothing on record to show that the defendants' permissive possession over the property became adverse to the interest of the real owner, at any point of time...."
5) Plaintiff has to admit the ownership of the true owner:
As per the judgement of Hon'ble Supreme Court in a case between Dagadabai (Dead) by L.Rs. vs. Abbas@ Gulab Rustum (Civil Appeal No. 83 of 2008) , it was held in paragraph no. 21, "it is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divert the true ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit that ownership of the true owner and the true owner has to be made a party to the suit to enable the Court to decide the plea of averse possession between the two rival claimants."
6) When Owner's right to property is extinguished:
If the owner of the property is not vigilant for his legal rights. Law does not protect to those who sleep over their rights for many years. Law helps only to those who are vigilant for their rights. Section 27 of the Limitation Act is the negative safeguard for the protection of rights of an owner of the property. It indicates the red light to the owner of the property to control the rights of the person (except owner of the property) who is in possession of such property.
Section 27 of the Limitation Act,1963
Generally remedy is closed due to the bar of limitation and nor rights, however, section 27 of limitation Act extinguishes the right of property as this section is exception to the general rule.
Section 27 restrains the owner of the property to vacant the possession from the person who has been possessed such property peacefully, uninterruptedly and extensively for a period of more than 12 years. This section ends the title of the property of a person who does not care of his ownership rights qua the property.
Para 57 of the latest judgement of Hon'ble Supreme Court in a case of Eureka Builders vs. Gulabchand reported in (2018)4 SCC (Civ)9 says that "Section 27 of the Limitation |Act deals with extinguishment of right to property. It says that the determination of the period prescribed in the Act for any person to institute a suit for possession of any property, his right to such property shall be extinguished. Articles 64 & 65 of the Schedule provide 12 years' period for filing a suit to claim possession of any immovable property. The period of 12 years prescribed in these two articles is required to be counted from ''the date of dispossession" (Article 64) and "When the possession of the defendant becomes adverse to the plaintiff" (Article 65)."
7) Time from which period begins to run for adverse possession:
As per Article 65 of the Limitation Act, the time commences for adverse possession is from the day when the possession of the defendant becomes adverse to the plaintiff. The period of limitation is of Twelve years. In the case of Hanamgowda vs. Irgowda reported in [AIR 1925 Bom. 9], it has been held that in cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendants' possession became adverse. (Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak (2004) 3 SCC 376). paragarph no. 77).
8) No adverse possession among the members of one family:
It is well settled principle that there can not be any adverse possession among the members of one family. A case between Nanjegowda alias Gowda(Dead) by Legal Representatives and another vs. Ramegowda reported in (2018) 1 SCC 574/ (2018) 1 SCC (Civ)417, wherein, the defendants(appellants) and the plaintiff (respondent) are the members of one family. They are first cousins from their father's side. The dispute is in respect of ancestral properties including land owned by the family. The Suit was filed by the plaintiff inter alia seeking relief for declaring the plaintiff as an owner of the suit land and for permanent injunction restraining the defendants(appellants) from interfering in his possession over the suit land on the basis of oral partition. The defendants(appellants) took a plea of adverse possession over the suit land and claimed that they became owner of the suit land by way of adverse possession due to their long, peaceful and continuous possession. The defendants admitted that the family relationship with the plaintiff along with the plea of the plaintiff regarding oral partition. It was held in paragraph no. 19 the judgement that ........"the plea of adverse possession was wholly misconceived and untenable. It is settled law that there can be no adverse possession among the members of one family for want of any animus among therm over the land belonging to their family."
Chirag Bhatt
Advocate
9824025041
7) Time from which period begins to run for adverse possession:
As per Article 65 of the Limitation Act, the time commences for adverse possession is from the day when the possession of the defendant becomes adverse to the plaintiff. The period of limitation is of Twelve years. In the case of Hanamgowda vs. Irgowda reported in [AIR 1925 Bom. 9], it has been held that in cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendants' possession became adverse. (Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak (2004) 3 SCC 376). paragarph no. 77).
8) No adverse possession among the members of one family:
It is well settled principle that there can not be any adverse possession among the members of one family. A case between Nanjegowda alias Gowda(Dead) by Legal Representatives and another vs. Ramegowda reported in (2018) 1 SCC 574/ (2018) 1 SCC (Civ)417, wherein, the defendants(appellants) and the plaintiff (respondent) are the members of one family. They are first cousins from their father's side. The dispute is in respect of ancestral properties including land owned by the family. The Suit was filed by the plaintiff inter alia seeking relief for declaring the plaintiff as an owner of the suit land and for permanent injunction restraining the defendants(appellants) from interfering in his possession over the suit land on the basis of oral partition. The defendants(appellants) took a plea of adverse possession over the suit land and claimed that they became owner of the suit land by way of adverse possession due to their long, peaceful and continuous possession. The defendants admitted that the family relationship with the plaintiff along with the plea of the plaintiff regarding oral partition. It was held in paragraph no. 19 the judgement that ........"the plea of adverse possession was wholly misconceived and untenable. It is settled law that there can be no adverse possession among the members of one family for want of any animus among therm over the land belonging to their family."
Chirag Bhatt
Advocate
9824025041
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