Adverse Possession: Balancing Property Rights and Legal Loopholes

Adverse Possession: Balancing Property Rights and Legal Loopholes

Author: Chandini Prajapati from City Groups of Colleges, Lucknow

Adverse Possession: A Legal Conundrum:

Adverse possession occurs when a tenant openly possesses a property without legal entitlement, without any attempt at concealment from the owner. In such cases, if the tenant continues to hold the property unlawfully for more than 12 years, and the owner takes no action during this period, the owner loses the right to claim the property through a court suit. Consequently, the possessor acquires a prescriptive title over the land through adverse possession.

This legal doctrine is rooted in the maxim “vigilantibus non-dormientibus subvenit lex”, which means that the law favors active citizens over those who are dormant or indifferent to their rights. However, this concept can sometimes be unfair to the lawful property owner. Despite this, if landlords fail to assert their rights within the specified time frame, they are not allowed to reclaim the land or re-enter it. The person who possesses the land, even unlawfully, develops certain expectations due to the passage of time. Taking action after such a prolonged period could be unjust, especially when the possessor has become accustomed to using the property.

The doctrine of adverse possession asserts that when an individual openly holds property owned by another person for an uninterrupted period of more than 12 years, they acquires lawful land ownership. Initially introduced in India in 1907, this doctrine is grounded in the following principles:

Clear Ownership: The property unlawfully possessed by the tenant must be lawfully owned by the landlord, leaving no doubt about ownership.

Inaction and Possession: If the original owner does not intervene during the extended period of possession, the possessor is deemed the rightful owner.

Abandonment: A person who once owned the property but subsequently neglected it effectively waives their rights to that land.

A Dual Role:

1. Adverse Possession as a Shield:

When a defendant faces a claimant seeking possession of a property, adverse possession can serve as a powerful defense.

Here’s how it acts as a protective shield:

Continuous Possession: The defendant must demonstrate uninterrupted and open possession of the property for the statutory period (usually 12 years).

In Good Faith: The possession must be in good faith, without any fraudulent intent.

Public Knowledge: The possession should be notorious, meaning it is visible and known to others.

Owner’s Inaction: If the rightful owner fails to assert their rights during this period, their claim may be barred.

Essentially, adverse possession protects the defendant’s possession rights against claims by the true owner.

2. Adverse Possession as a Sword:

While a plaintiff cannot directly initiate a lawsuit based solely on adverse possession, it can become a potent weapon once certain conditions are met:

Acquisition of Title: The plaintiff must first acquire a right, title, or interest in the property through adverse possession.

Asserting Ownership: Once the adverse possessor has gained ownership, they can actively assert it within legal limits.

Quiet Title Actions: The plaintiff can file a “quiet title” lawsuit to establish their ownership and seek a declaration of title.

Challenging the True Owner: The plaintiff can challenge the true owner’s claim by proving their adverse possession. 

In essence, adverse possession transforms mere possession into a legitimate claim of ownership.

Legal Safeguards for Adverse Possession in India:

While India lacks specific laws explicitly addressing the doctrine of adverse possession, the Limitation Act of 1963 contains relevant provisions. Here are the key points:

Section 27: This provision reaffirms that property owners have a 12-year limitation period to file a suit. If another party possesses the property continuously for more than 12 years, no legal action can be taken against them.

Article 64 and Article 65: These articles place the onus on the tenant to prove dispossession during the 12 years. Simultaneously, the landlord must demonstrate the adverse possession duration within the same timeframe.

Government Property: For adverse possession of any government-owned property, the ownership claim period is fixed at 30 years. After uninterrupted possession for 30 years, no claims can be filed against the possessor in cases of government ownership.

Legal Precedents:

Secretary of State v. Vira Rayan (1886):

The court emphasized that possession should be open and hostile. Both the owner and immediate neighbors should be aware of the situation through reasonable diligence.

To establish factual possession, the possessor must demonstrate an intention to exclude others from using the property.

Karnataka Board of Wakf v. Government of India (2004):

The court established that if a person takes possession of property owned by another and asserts rights over it, and the lawful owner fails to take legal action for 12 years or more, ownership transfers to the possessor.

This ruling reinforces the doctrine of adverse possession.

Amrendra Pratap Singh v. Tej Bahadur Prajapati (2003):

The court provided a comprehensive definition of adverse possession.

If an individual, despite lacking rightful possession, prescribes title to the land for 12 years without legal action, the original owner loses their title to the land.

P.T. Munchikkanna Reddy v. Revamma (2007):

This case aimed to distinguish between the intention to possess and the intention to dispossess.

Critics argued that intending to possess inherently implies preventing others from possessing, making both intentions interrelated.

Proving Adverse Possession: 

When asserting the defense of adverse possession under the Limitation Act of 1963, the burden of proof lies squarely on the claimant. 

Commencement Date: The claimant needs to specify the date from which the property fell under their adverse possession. This date serves as the starting point for calculating the crucial 12-year period.

Awareness Timeline: It is essential to prove when the adverse possession became known to the property owner and immediate neighbors. These dates play a pivotal role in assessing the claim.

Peaceful Possession: The claimant must establish that their possession of the property was peaceful—not obtained through coercion or contrary to the owner’s expectations.

Owner’s Inaction: Beyond a reasonable doubt, the claimant must show that the property owner, despite being aware of the possession, took no legal action against them.

Exceptional Circumstances: The claimant should ensure that no exceptions to the adverse possession rule apply in their specific case.

Uninterrupted Possession: Lastly, continuous possession of the property without any interruptions by the owner or third parties must be proven before the court.

Exceptions to Adverse Possession

While adverse possession provides a legal pathway for claiming ownership, there are exceptions where the possessor cannot assert this right:

No Ulterior Motive:

To claim adverse possession, the person must demonstrate an exclusive intention to possess the property (known as animus possidendi).

If the landlord and tenant share a fiduciary relationship based on trust or reliance, such possession does not qualify as adverse possession.

Permissive Possession:

When the tenant or occupant is permitted by the landlord to possess the property, it falls outside the scope of adverse possession.

Legal action can be taken if the landlord terminates permissive possession, and the tenant refuses to vacate. Compensation may be required for wrongful possession.

Adverse possession only applies when the tenant wrongfully possesses the property for more than 12 years.

Lack of Valid Claimant:

If a piece of land lacks a lawful owner, adverse possession does not require proof.

When no one claims ownership, the right over the land cannot be established through adverse possession.

The Landmark Case:

In the case of, Perry v. Clissold (1907), the Privy Council made a significant ruling regarding adverse possession. Here’s the essence of their decision: If an individual possesses a property openly and peacefully, even when it technically belongs to someone else, and the true owner fails to assert their rights within a reasonable time, the possessor’s claim gains strength. Eventually, the rightful title may transfer to the possessor. Although this ruling wasn’t legally binding post-independence, its principles were reaffirmed by the Court in the case of Nair Service Society Ltd v. KC Alexander (1966)

In the Kshitish Chandra Bose v. Commissioner of Ranchi (1981) case, the Supreme Court’s three-judge bench overturned the High Court’s decision. The Court explicitly emphasized that for adverse possession to apply, the property must be openly possessed without any intention of concealing it from the owner. Even if the true owner is unaware of this possession, it does not diminish its adverseness. Similarly, lack of knowledge about the real owner by the person in possession does not weaken the claim.

Now, turning to the Thakur Kishan Singh (Dead) v. Arvind Kumar (1994) case, the Court introduced a crucial exception to the doctrine of adverse possession. It clarified that if an individual possesses a property with the owner’s permission, it cannot be considered adverse possession. In other words, lawful permissive possession does not lead to adverse possession. Therefore, when someone has been legally allowed to use a specific piece of property, their possession does not fall under adverse possession principles.

In the Hemaji Waghaji v. Bhikhabhai Khengarbhai (2008) case, the Supreme Court expressed strong criticism of the doctrine of adverse possession, deeming it irrational and unfair to property owners. The situation where an illegal and dishonest possessor benefits from adverse possession while leaving the rightful owner helpless was particularly concerning. Consequently, the Court called for a review of adverse possession provisions to strike a balance between its advantages and disadvantages.

Moving on to The State of Haryana v. Mukesh Kumar and Ors (2011) case, the Court established a crucial condition for adverse possession: uninterrupted and uncontested possession of the property for a specific period adverse to the owner. The Court reiterated its demand for legal reforms in adverse possession to ensure fairness for both parties.


Adverse possession is a legal method of acquiring title to real property through continuous possession for a specified period, subject to certain conditions. This period is determined by statute. Under this doctrine, an individual can establish ownership against the true owner after fulfilling all legal requirements. The property owner must have actual knowledge of the adverse possession. Continuity refers to uninterrupted occupancy of the land.

As per Articles 6 and 65 of the Limitation Act, the prescribed period is 12 years, while for government-owned property, it is 30 years. The clock starts ticking from the expression of hostile animus, which amounts to a denial of the real owner’s title. The burden of proving adverse possession lies with the party claiming it, and mere presumptions or probabilities cannot replace concrete evidence.

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