There have been many cases across India where a caretaker or a tenant has forcefully occupied a property or land and has successfully claimed the ownership of the property. Such forceful possession is termed as Adverse Possession. In India, such claims come under the Indian Limitation Act 1963.
What is Adverse Possession?
When the original owner loses ‘ownership rights’ of his/her immovable property as he/she is unable to remove a trespasser from the property within a statutory period of time, it is known as Adverse Possession. There is another type of adverse possession titled Hostile Possession.
Let’s say you have a house on which you have either allowed a person to stay as a tenant (or caretaker) or you are not exercising your dominion, i.e. the property is lying vacant for a long time. In the former situation, the occupant can claim ownership of your property as continuous possession, while in the latter, it might lead to hostile possession.
In both the scenarios, the original owner is barred from initiating any legal proceeding if the occupant is living in the property for over a stipulated period of time. In case of Government/state/public property, the minimum year of uninterrupted occupancy is 30 years. “However, in case of private property, the occupancy must be uninterrupted for 12 years,” says Motahar Hossain, an advocate practicing in National Capital Region.
Uninterrupted occupancy means that the occupant is in sole physical possession of the property for 12 to 30 years and is carrying out physical acts such as construction, repairs, etc. This shows that the possessor is exercising dominion over the property while the original owner is not. If there is an ongoing legal case on the property it will be termed as interruption.
After expiry of the statutory limitation period, the original owner is barred from initiating any legal proceeding and the possessor acquires the right and title of the property by adverse/hostile possession. In certain cases where the owner is of unsound mind or minor or is serving in the army, this limitation period stands null and void.
“The occupant can claim ownership even if you have the title and all other documents,” says Hossain. Hence, the original owners not only should have evidence of ownership but should also possess proof of ‘possession’ to avoid such a situation. In case of a tenant, a rent agreement must be signed by both the parties. Proof of possession can also include construction, erection of some structure, fencing the property, farming and harvesting of crop and planting and cutting trees.
The only difference between the adverse possession and hostile possession is that in the latter, the claimant or trespasser knowingly occupies the property for the full statutory period of limitation with sole intention of acquiring the title of the property.