Concept of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation.

In India Article 65 of Limitation Act prescribed limitation to recover possession from the person in wrongful possession is 12 years from the date when the person in possession set up hostile title or adverse title, continuing in possession.

Article 65, Schedule I of The Limitation Act prescribes limitation of 12 years for a suit for possession of immovable property or any interest therein based on title. It is important to note that the starting point of limitation of 12 years is counted from the point of time when the possession of the defendants becomes adverse to the plaintiff. Article 65 is an independent Article applicable to all suits for possession of immovable property based on title i.e., proprietary title as distinct from possessory title. Article 64 governs suits for possession based on possessory right. 12 years from the date of dispossession is the starting point of limitation under Article 64. Article 65 as well as Article 64 shall be read with Section 27 which bears the heading Extinguishment of right to property. It runs as follows:

At the determination of the period hereby limited to any person for instituting the suit for possession of any property, his right to such property shall be extinguished.

If Article 65 and Section 27 of the Limitation Act are read conjointly, it indicates that where a cause of action exists to file a suit for possession and if the suit is not filed within the period of limitation prescribed, then, not only the period of limitation comes to an end, but the right based on title or possession, as the case may be, will be extinguished. Article 65 of the Limitation Act assists the person in possession to acquire prescriptive title by adverse possession. When the title to property of the previous owner is extinguished, it passes on to the possessor and the possessory right gets transformed into ownership.

Section 27 of Limitation Act lays down a substantive law by declaring that after the lapse of the period, the title ceases to exist and not merely the remedy. It means that since the person who had a right to possession has allowed his right to be extinguished by his inaction, he cannot recover the property from the person in adverse possession and as a necessary corollary thereto, the person in adverse possession is enabled to hold on to his possession as against the owner not in possession.

The concept of adverse possession and its consequences wherever attracted has been recognized in the statute dealing with limitation. The first codified statute dealing with limitation came to be enacted in 1840. The Act 14 of 1840 in fact was an enactment applicable in England but it was extended to the territory of Indian continent which was under the reign of East India Company, by an authority of Privy Council in the East India Co. v. Oditchurn Paul, 1849 (Cases in the Privy Council on Appeal from the East Indies) 43. The law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription, by which a right is acquired, is called an ‘acquisitive prescription’. A prescription by which a right is extinguished is called ‘extinctive prescription’. The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time.

In Jageshwar Teli v. State of Bihar and Ors. the Patna High Court discussed about the Section 27 of Limitation Act regarding Extinguishment of right to property and held that it is now well-known that where a person comes in possession of any land by reason of an illegal transfer, he begins to possess adversely as against the transferee to the extent of his transferors interest based on Kalawatibai v. Soiryabai and Ors. . Thus, once a person acquires title by reason of his being in adverse possession of such lands in terms of Article 65 of the Limitation Act, he acquires a vested right and consequently the right of the original owner of the land in view of Section 27 of the Limitation Act becomes extinct. When a person acquires title to the property also by adverse possession, he acquires a right in the said property within the meaning of Article 300-A of the Constitution of India.

To assess a claim of adverse possession, two- prolonged enquiry is required viz.,

1. Application of limitation provision thereby jurisprudentially willful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper- owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.

In view of these two judgments, the Apex Court in P.T. Munichikkana Reddy v. Revamma and Hemaji Waghaji Jat v. Bhikhabhal Khengarbhai Harijan and others and in State of Haryana v. Mukesh Kumar(referred supra) had taken a serious view. If that is the case what will happen to the person, who is continuing in possession for a longer period with the notice of owner, who was disabled to enjoy the property for such long period. When a person in occupation of the property though entered into wrongfully either committing crime or tort and after passing sometime he is bound to pay taxes to the Government and sometimes improve the property raising huge or massive constructions or reasonable constructions to the knowledge of real owner, when suddenly real owner woke-up and approach the Court for recovery of possession, certainly it would cause huge loss to the person in possession and similarly the real owner would also put to hardship, but the benefit of limitation can be extended to a person, who is not dormant and at the same time the person who entered into wrongful possession is not entitled to claim equities in his favour. In those circumstances, it is difficult to decide such situation either in favour of the real owner or in favour of person in wrongful possession for a statutory period of 12 years. Perhaps, this is the reason for fixing 12 years period as limitation to claim right over the property by the real owner or to ripen the wrongful possession into adverse possession after completion of continuous possession of 12 years to the knowledge of the real owner. In that view of the position, One oft mentioned explanation can be summed up as you snooz, you loose. According to this sleeping theory adverse possession acts as civil penalty for the wrong doers. The wrong doers are those who sleep on their rights and the penalty is to loose those rights. The law shifts rights away from those who do not use their land because they no longer deserve to hold title. Similarly, those who abstain from suing no longer deserve the right to sue. In either case, the shifting of rights from one person is desirable because it balance the scale of justice.

Put this way, the sleeping theory is hard to accept as justification for adverse possession today. To my eyes, the person who leaves land unattended or refrains from suing someone who is not culpable; he has not behaved reprehensively and does not deserve the loose his rights. While the sleeping theory might once have fit social norms, it runs against them today.

The rationale behind adverse possession rests broadly on the considerations that title to land should not long be in doubt, the society will benefit from some one making use of land, the owner leaves idle and that persons who come to regard, the occupant as owner may be protected. The maxim that law and equity does not help those who sleep over their rights is invoked in support of prescription of title by adverse possession. In other words, the original title holder who neglected to enforce his rights over the land cannot be permitted to re-enter the land after a long passage of time.

In view of Section 27 of Limitation Act, the title of the real owner would be extinguished after expiry of the limitation prescribed to recover possession of the property based on title.

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Therefore, in view of Section 100 of Evidence Act, the burden initially rests on the person, who asserts that the person in possession is not the owner of the property. When such a person discharged his initial onus of proof, the person in possession may claim adverse title to the property. Since Possession by itself is a substantive right recognized by law and has legal incidents attached to it apart from ownership. Even before the acquisition of statutory title by adverse possession for the requisite period under the Limitation Act, the possessory owner has well defined rights in property. It is now settled beyond any pale of doubt that this interest is heritable, devisable and transferable. This interest is referred to as possessory title as distinct from proprietary title. A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself as held in Kuttan Narayanan v. Thomman Mathayi In view of the principles laid down in the above judgments, the possessory title is heritable since the possession is nine points of the law. Quotation of Justice Oliver Wendell Holmes is worthy of reference in the contest that man like a tree in the cleft of a rock, gradually shapes his roots to the surroundings, and when the roots have grown to a certain size, cant be displaced without cutting at his life. The said quotation is akin to adverse possession, who entered wrongfully in possession of the property raised constructions cannot be displaced except by removal in accordance with law. Therefore, a person in possession over a long period setting up hostile tile is entitled to protect his possession, but subject to proof of the requirements laid down by the Apex Court in cateena of decisions referred supra while deciding Point No.1.

Recently, the Apex Court in Bangalore Development Authority v. N.Jayamma reviewing the entire law on adverse possession expressed its view that 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.

The concept of adverse possession had taken colour of human right, the Apex Court in Lalaram and Ors. v. Jaipur Development Authority and Ors. , and the judgment of High Court of Gujarat at Ahmedabad in Vijay Vallabhbhai Patel and Ors. v. State of Gujarat and Ors. and the judgment of the High Court of Calcutta in Rahul Dey Sarkar and Ors. v. The State of West Bengal and Ors. , are of the view that it is the duty of the Government to protect human rights of the individuals and dispossession or conferring title on a person, who is in wrongful possession would amount to violation of human right guaranteed under the Universal declaration of human rights and other International Covenants on Civil and Political Rights, to which India is a party. If such principle is applied to the adverse possession, it is difficult to regulate the title of a person, who is in possession over a period of 12 years against the true owner and it may lead to eclipse of the very concept of adverse possession.



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