Adverse Possession- Sword cum Shield

Ingredients to qualify adverse possession Theory of adverse possession is inherited from the common law concepts which is approximately about 2000 years old. This has been considered as one of the harsh facets of law but has been in vogue since time immemorial. The concept of adverse possession is based on the principle that the possessor who maintains and improves the land has more valid claim to the land than the owner who never visits or cares for it. The person claiming adverse possession is required to satisfy three classic requirements which should co-exist at the same time which are - nec vi, nec clam, nec precario ie., peaceful, open and continuous. These requirements have been laid down by the Privy Council as early as 1912 in the case of Corea v. Appuhany and thereafter have been adopted as standard parameters to determine adverse possession by the Courts in India. There is no statute per se which defines the concept of adverse possession but the Limitation Act, 1963 provides for the limitation to sue and extinguishment of rights in this regard. The Act merely prescribes the period of limitation which is 12 years in case of private lands and 30 years in case of Government lands. The law thus restricts the right of the owner to recover possession within the fixed period (12/30 as the case may be) beyond which his right expires. If the owner fails to assert his right within the fixed period, upon the extinction of his right, another person who had been in possession all these years acquires prescriptive right. The intention of the statute is not to punish the owner who fails to assert his right in his property but to protect the interest of the person who has maintained the property for such time, specified in the statute. As per Section 27 of the Act, the right to property gets extinguished on the expiry of period specified for instituting a suit for possession of property and thereby his right in such property gets extinguished. A person in possession has a transmissible interest in the property and after the expiration of the stipulated statutory period it ripens as a right to possession.Details to be specified in the pleadings The person who pleads adverse possession has no equities in his favour. He has to plead and prove in unequivocal terms the essential ingredients of adverse possession. 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 (e) whether his possession was open and undisturbed[1] Since the person pleading adverse possession 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. Animus is also an essential aspect to prove adverse possession. The same can be observed by reference to the judgment of Powell v McFarlane[2] wherein the Court had held that "if the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess". Mere possession does not ripen into possessory title until possessor holds property adverse to the title of the true owner for the said purpose. 'Only as a shield':Earlier the Supreme Court in the year 2014, in Gurudwara Sahab v. Gram Panchayat Village Sirthala[3] had ruled that the plea of adverse possession can be used only as a shield by the defendant and not as a sword by the plaintiff. The Court specifically stated that no declaration can be sought for on the basis of adverse possession as such a plea can be raised only by the defendant. Therefore it was made clear that although the possession of a person had ripened into ownership by virtue of adverse possession, he cannot file a suit seeking for a declaration declaring his title based on his prescriptive right and he could only use it as a defense. Thus the plea of adverse possession is available only to the defendant as a defense against the plaintiff. This legal proposition laid down in 2014 by the Apex Court was relied by the same Court in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj[4] and Dharampal (dead) through LRs v. Punjab Wakf Board[5]. The Supreme Court once again rekindled the most contentious question of whether a person claiming title by virtue of adverse possession can maintain a suit under Article 65 to Schedule I of Limitation Act, 1963 for declaration of title and for permanent injunction in order to protect his possession and answered the same in affirmative in the case of Ravinder Kaur Grewal vs Manjit Kaur...

Adverse Possession- Sword cum Shield

K Indu Priya

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