Legal

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This Blog is written by Zeeshan Husain from Indore H.R.K. Law College, Pilibhit. Edited by Prakriti Dadsena.

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INTRODUCTION

Under the Indian legal system, properties are divided into two categories – movable and immovable. The Transfer of Property Act (TOPA), 1882, which came into force on July 1, 1882, deals with the aspects of the transfer of properties between living beings. One of the oldest laws in the Indian legal system, the TOPA is an extension of the law of contracts and runs parallel to the succession laws. For those planning to transfer their immovable property, knowing the key aspects of this Act is important.

SIGNIFICANCE OF THIS DEVELOPMENT

Ownership is a socially significant concept because it is an index of wealth and social position. Ownership of land was a means of controlling the government. In a feudal system based on land ownership, the feudal lords wielded tremendous influence, and even the qualification to vote was based on ownership of land.

The social aspect of ownership also highlights the important principle that an owner shall enjoy his interest in a manner compatible with the interest of others.

As Lord Evershed said; ‘ Property like other interests has a social obligation to perform’. The extent of this social obligation reflects the social policy of the legal system.[ix]

IMPACT

The Supreme Court has held that a person who has acquired right over a property as it was in his possession for 12 years can file a suit to reclaim it in case of forced dispossession by the original owner or any other party.

The top court referred to the “doctrine of adverse possession”, under which a person who is not the original owner becomes the owner because of the fact that he has been in possession of the property for a minimum of 12-years, within which the real owner.
Although the two terms are often confused, possession is not the same as ownership. No legal rule states that “possession is nine-tenths of the law,” but this phrase is often used to suggest that someone who possesses an object is most likely its owner. … However, the owner of an object may not always possess the object

STATUTORY PROVISION

Under Section 5 of the Specific Relief Act, a suit for recovery of possession can be filed by a person who is entitled to the possession of the specific immovable property in the manner provided by the Code of Civil Procedure, 1908. Given the said, a question to ponder is when a person having no title, merely on the strength of possessory title can maintain a suit for recovery of possession and ejectment of a trespasser and also obtain an injunction against the said trespasser.

CASE LAW

Ravinder Kaur Grewal v. Manjit Kaur on 7 August, 2019

The question of law involved in the present matters is quite significant. Whether a person claiming the title by virtue of adverse possession can maintain a suit under Article 65 of Limitation Act, 1963 (for short, “the Act”) for declaration of title and for a permanent injunction seeking the protection of his possession thereby restraining the defendant from interfering in the possession or for restoration of Signature Not Verified Digitally signed by JAYANT KUMAR ARORA Date: 2019.08.07 17:08:22 IST possession in case of illegal dispossession by a defendant whose title has Reason:

ANALYSIS

Adverse possession under the Limitation Act, 1963 Prior to the appeal being heard, the question of law was referred to a larger three-member bench on whether any action for adverse possession would be maintainable under Article 65 of the Limitation Act, 1963 for declaration of possession and grant of permanent injunction against the defendants from interfering with such possession. Adverse possession is a hostile possession by clearly asserting hostile title in denial of title of the true owner. It was held by the larger bench that the word ‘title’ as used under Article 65 would include title acquired by way of adverse possession. Thus, under Article 65, a suit based on the title for recovery of possession is maintainable by the Respondents only within 12 years from the date of start of the adverse possession. Article 65 of the Limitation Act, 1963 only restricts the right of an owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right has been extinguished, another person acquires prescriptive rights which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. Thus, the question was answered in favor of the Appellants vide judgment dated August 07, 2019.1 The same was not discussed in the judgment under the present appeal, since the trial Court had found that the possession of the Original Plaintiff was only permissive possession.

CONCLUSION

Ownership and possession are two words, which we commonly use in our daily life without thinking about their legal incidents or consequences. However, even when we use these words in our ordinary conversation, we generally associate certain rights and obligations with these words. It is surprising that a child who has not learned these two words is capable of understanding the meaning of these words, and also the difference between the concepts of ownership and possession.

REFERENCE

1 Article 65 of the Limitation Act, 1963.

2 The Transfer of Property Act (TOPA), 1882.

3 Civil Appeal No.7764 OF 2014.