Overview and evolution of law of adverse possession

The concept of adverse possession relates to the process of acquisition of title by the person in possession of the property despite not being the owner. If the possessor remains in continuous possession of the property for 12 years with the knowledge but without the permission or interference of the owner, the title of the property vests in the possessor.

Adverse possession was defined by the Supreme Court in Amarendra Pratap Singh v Tej Bahadur Prajapati as: “A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title.”

In SM Karim v Mst. Bibi Sakina following the equitable principle of nec vi nec clam nec precario (without force, without secrecy, without permission), it was ruled that adverse possession must be adequate in continuity, in publicity and extent, and a plea is required, to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

The Limitation Act, 1963, lays down a limitation period of 12 years for suit of possession of immovable property or any interest based on the title. The period for limitation for the government, however, is 30 years by virtue of article 112. The law of adverse possession was judicially summed up by the Judicial Committee of the Privy Council in Perry v Clissold, where it was observed that if a rightful owner does not claim his right against a possessor within a given time, his ownership right stands extinguished and the same was approved by in Nair Service Society Limited v KC Alexander.

Utsav Mukherjee is a partner at Vidhii Partners.

Vidhii Partners
G/F Construction House
5, Walchand Hirachand Marg
Ballard Estate
Mumbai – 400 001
New Delhi | Kolkata | Bengaluru

Contact details
Tel: +91 22 4355 8555
Fax: +91 22 4355 8550
Email: vidhii.mumbai@vidhiipartners.com
Website: www.vidhiipartners.com