Legal

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This Blog is written by Sarthak Verma from Symbiosis Law School, Noida. Edited by Ritika Sharma.

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1. INTRODUCTION

Possession: In law, possession is the control an individual deliberately practices towards a thing. In almost all the cases, to have something, an individual must have an intention to have/possess it.

Adverse Possession: The idea of adverse possession identifies with the procedure of obtaining of title by the individual possessing the property regardless of not being the owner. In the event that the holder stays in continuous possession of the property for 12 years with the information yet without the consent or obstruction of the owner, the title of the property vests in the possessor. This legal doctrine allows the possessor of the land to claim the legal rights over the land. The claimant would not be required to pay to the owner if they successfully prove the adverse possession.

Squatter’s right is a term that is sometimes used as a synonym to the adverse possession. These are not a recorded law instead are a colloquial reference to the idea of adverse possession. In spite of the fact that the components of an adverse possession are distinctive in each circumstance, an individual asserting adverse possession is generally required to demonstrate non-lenient utilization of the property that is genuine, open and famous, selective, antagonistic and nonstop for the legal period.

Permissive Possession: Permissive possession, means that the mortgagee is in possession over the property in question with the leave of the owner, or of the ‘bhumidhar‘. If on being asked to deliver possession, the mortgagee refuses or declines to do so, it would give rise to a cause of action on the date on which possession is refused to be delivered. Occupancy of a piece of real property coupled with a claim of ownership (which may be implied by actions, such as putting in a fence) over anyone, including the holder of the recorded title. It may be an element of gaining title through long-term adverse possession or claiming real estate which has no known owner.

2. SIGNIFICANCE

Adverse possession and Permissive possession hold a great significance mainly in the property law, where on one side some rights are granted to the possessor or the owner and on the other side some kind of limitation is put over them, where the duration for lamination and having legal action against the possessor is 12 years. It was stated by the Apex court that plea for adverse possession may not be entertained in the cases relating to the land and property for public use.

The claim for the adverse possession is not maintainable if it is a case of permissive possession because permissive possession cannot be converted or manipulated into adverse possession especially when it has been the case of permissive possession from the starting unless something has been done by the possessor that would have affected the denying of the title to the true owner. This character of permissive possession can be inferred from the attendant circumstances even if there is a lack of evidence. The Supreme Court exposited that one who holds possession on behalf of another i.e. permissive possession, does not by mere denial of the other’s title, make his possession adverse so as to give himself the benefit of the statute of limitation.

3. IMPACT

Possession of any immovable property and rights in relation to it has been a heated issue for quite a long time. Change of possession from permissive to adverse has a detrimental effect on the true owner. Law is of the perception that every possession starts legally i.e. is permissive but when an illegal turn occurs it changes to adverse and then the impact of possession is hostile, overt, exclusive, uninterrupted and under a claim of right so as to give owner claiming rights to their property and hence counter the adverse possession. ‘Possession’ only can’t establish the case of unfriendly or adverse possession. Possession could conceivably emerge out of settled right, however, an individual guaranteeing unfavorable belonging has no privilege thereupon. The permissive character of possession can be derived from the specialist conditions, even without direct evidence. The second the offended party shows the aim that the lenient belonging should stop, the lenient holder should cease from going into the property and in the event that he doesn’t do as such, his duration would, from that point, be illegitimate and would render him, at risk to give up ownership with mesne benefits. A disseisor will be committing a civil trespass on the property he has taken and the owner of the property could cause him to be evicted by action in trespass (“ejectment”) or by bringing an action for possession. All common law jurisdictions require that an ejectment action be brought within a specified time, after which the true owner is assumed to have acquiesced. The effect of a failure by the true landowner to evict the adverse possessor depends on the jurisdiction, but will eventually result in the title by adverse possession.

4. STATUTORY PROVISIONS

There are some statutory provisions that can be linked to the concept of Adverse and Permissive possession. Under the Indian Limitation Act,1963, Section 28 (new segment 27) and Section – 142 and Section – 144 (new Sections 64 and 65) and different provisions manage the subject. So as to bring a case inside the ambit of Limitation Act, there must be both non-appearance of possession by the individual who has the privilege and genuine belonging by another, regardless of whether antagonistic or not, to be secured, to bring the case inside the rule. To procure title by unfriendly belonging, as obvious from Sections – 64 and 65 of the Limitations Act, 1963, all that the law requires is that the ownership must be open and with no endeavor at disguise. On the applicable date, for procurement of title by antagonistic belonging 12 years unfavorable belonging is required. Simple belonging doesn’t present title of whatever length it may be. For flawlessness of one’s title based on unfavorable belonging one needs to indicate the date of his control of the land in question and furthermore name the individual against whom he asserted antagonistic belonging. Inconsistent belonging being regular energizes no specific consideration. Coercive belonging for more than legal period builds up antagonistic belonging. A progression of disengaged demonstrations of trespass with no coherence of ownership would miss the mark regarding the imperative; and actually, there has been interference, ownership during such interference must be esteemed to be with the individual having the legitimate right. Also according to the Section – 116 and Section – 106 of the Transfer of Property Act, 1882, that defines lease of immovable property, its time restrictions and constraints and rights that can be exercised when the lease agreement expires and how this possession changes from permissive to adverse when the possession is hostile and exclusive and is against the will of the true owner.

Whereas Section – 5 of the Specific Relief Act, 1963 dealing with the recovery of immovable property when read along with the Section – 9 of the Code of Civil Procedure, 1908 facilitates the owner to file a suit for the recovery, which is filed under Section 65 of the Limitation Act. Therefore, to file the suit possession should be adverse and not permissive. Whereas if the party fails to file a suit against the possessor, he loses the title over the property is described under Section 27 of the Limitation Act.

5. CASE LAWS

The Apex Court defined Adverse Possession in the case of Amrendra Pratap Singh v. Tej Bahadur Prajapati. Whereas in the case of SM Karim v. Mst. Bibi Sakina, the equitable principle of  ‘without force,  without secrecy, without permission” was followed and it gave the ruling that adverse possession must be satisfactory incoherence, in exposure and degree, and supplication is required, to show when possession gets adverse with the goal that the beginning stage of constraint against the gathering influenced can be found. In the case of Framji Cursetji v. Goculdas Madhowji ((1892) ILR 16 Bom 338) it was mentioned that ‘Possession’ may or may not arise out of settled right, but a person claiming adverse possession has no right thereupon. It is to be noted that mere user cannot assert such proprietary rights. Whereas in the case of Unush v. Raj Narain, it was said that during the continuance of the lease, the possession does not change to adverse against the lessor and the possession of the trespasser is mainly concerned with the property in his physical possession.

In the case of Maria Margarida Sequeria Fernandes & Ors., it was held that just in light of the fact that the individual is permitted to remain in the premises unnecessarily, even by long possession of years or decades such individual would not obtain any right, title or enthusiasm to the said property. It is held that such individual can never obtain enthusiasm for the property independent of his long possession and was to give possession forthwith on request by the proprietor of the suit property. It is held that the Courts are not advocated in securing the possession of a guardian, hireling or any individual who was permitted to live in the premises for quite a while either as a companion, relative, overseer or as a worker. Such people hold property of the vital just for the benefit of the head and doesn’t gain any right, title or enthusiasm of any nature at all in the suit property. In another case Smt. Urmila Devi & Anr v. Laxman Singh & Anr, the defendants set up a Will dated 4th January, 2010 executed by late Shri Ganpat Ram and claimed bequest in favour of Smt. Urmila Devi of 50% of the suit property by him as owner thereof. The Will contains a declaration that Bhagat Ram and Laxman Singh were the owners of the property. The counsel for the appellants orally pressed that the appellants have perfected title to the suit property by adverse possession. No such oral plea is permissible. Even if it were permissible, it is necessary to understand the essential ingredients of adverse possession, including the pleadings necessary to support the same as well as the onus and burden of proof thereof.

6. ANALYSIS

The learner feels that the doctrine of adverse possession appears to be in a state of judicial flux and needs to be deliberated to have legislative action to have concreteness and to settle the position. Thinking about the standards of adverse possession, the law should be held. In any case, a time of 12 years is lacking and doesn’t comply with universal sculptures or Section – 12 of the Limitation Act, 1963 itself. In this manner, the time of restriction might be expanded from 12 years to 30 years or somewhere in the vicinity. Adverse possession can be proposed as a potential answer for demoralizing maltreatment of protected innovation rights like cybersquatting, exorbitant copyright, and patent trolls. Applying adverse possession to licensed innovation just as physical property would compel the abusers to place more assets into effectively utilizing their arrangement of trademarks, licenses, etc., instead of simply sitting on them and trusting that the real trend-setters will step in their domain. The learner also believes that the concreteness in the provision of both adverse as well as permissive possession is needed to cater to the problems of the owner and the possessor and to differentiate among them.

7. CONCLUSION

The learner in the above piece discussed and mentioned in adverse and permissive possession, its significance, impacts the statutory limitations and the provisions relating to it, the rights of possession and ownership. Choosing whether a title can be adverse or not, is to be sure a matter of both truth and law. At the introductory stage, one may state that in titles emerging out of permit can’t keep up adverse possession, however on breaking down various likely conditions on case to case premise, occasions may come out where the opposite can appear. However, it can be said that in defense under adverse possession, no matter whatever agreement or source of the claim over the property is, the various Courts have conclusively given more thoughtfulness and weightage to the animus possidendi of holding the possession and rendering of the title an adverse character against true ownership.

8. REFERENCE

(1) Indian Kanoon

(2) SCC Online

(3) Manupatra

(4) West law