Introduction

Possession is one of the most important concepts in the entire range of Legal History as it is the Prima facie incidence of ownership. According to Salmond, Possession is the most fundamental interaction between man and things. However, Henry Maine defined it as “interaction with an object that includes the exclusion of other people from enjoying it.”

Acquisition of Ownership by Possession Under Limitation Act

• Acquisition of Ownership by Possession is provided under the Limitation Act, 1963 (hereinafter Act) by Sections 25, 26 and 27.
• The concept of adverse possession (Possession by someone who has had another’s land for a long time and can claim a legal title over it) is important to be discussed here, adverse possession stems from the idea that land must not be left in abeyance, instead, be put to judicious use.
• Essentially, adverse possession refers to the hostile possession of property, which must be “continuous, uninterrupted, and peaceful.”
• The abovementioned provisions refer to:
  • Section 25 - Acquisition of easements by prescription.
  • Section 26 - Exclusion in favour of reversioner of serivent tenement.
  • Section 27 - Extinguishment of right to property.

Section 25

Section 25 - Acquisition of easements by prescription. —

(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.

(2) Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested

(3) Where the property over which a right is claimed under sub-section (1) belongs to the Government that sub-section shall be read as if for the words “twenty years” the words “thirty years” were substituted.

Explanation.—Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.

• It provides for acquisition of easement by prescription.
• Easement by prescription is a type of adverse possession where one acquires an easement (Easement - Right to use another person’s property in some way).
• Easement by prescription occurs where someone uses another's property for a certain amount of time without permission in a way in which the owner should be aware of.
• States set the time limit required for one to achieve a prescriptive easement which can range from a few years to over twenty years.
• This section is remedial in nature, but it does not exclude or prevent the acquisition of easement rights in other modes. For acquiring easement under this provision, 20 years of uninterrupted and continuous use is necessary.
• The following conditions must be satisfied for the acquisition of right to easement:
  • Peaceful Possession: The word peaceably means that the plaintiff who claims to be the owner, has neither been obliged to resort to physical force himself at any time to exercise his right within twenty years nor he has been prevented by the use of physical force by the defendant in his enjoyment of such right.
  • Openly: The word openly means that the enjoyment has been from the very beginning which was visible or manifest and not furtive or secret.
  • As of Right: The term as of right signifies enjoyment by a person in the assertion of a right. In order to fall under this category enjoyment should be as of right i.e., the person claiming it must have exercised it without leave or license from anyone.
  • Without Interruption: Enjoyment for twenty years must be without interruption, that is, without any obstruction.

Case Laws

• In Rachhaya Pandey and Ors v. Sheodhari Pandey and Ors (1963), it has been held that the right to drain off rainwater according to the position of the land in a natural way does not attract Section 25.
• In Manindra Nath Bose v. Balaram Chandra Patni and Ors, (1973) Calcutta High Court held that the customary right of way for all the villagers is not a right which can be acquired by prescription under Section 25.

Section 26

• Section 26 - Exclusion in favour of reversioner of serivent tenement — Where any land or water upon, over or from, which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or in terms of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period twenty years in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled on such determination to the said land or water.
• Where any easement has been enjoyed or derived by virtue of life interest or in terms exceeding 3 years, the time of enjoyment of such easement during the continuation of such interest, such time period is to be excluded in computation of 20 years under Section 25.

Section 27

Section 27 - Extinguishment of right to property — At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

• The following points are to be understood here:
  • General Rule is that the law of limitation only bars the remedy but does not bar the right itself. Section 27 is an exception to this rule as it talks about adverse possession.
  • It is based upon the principle - If the rightful owner sleeps over his rights, then the rights of the owner will be extinguished, and the possessor of the property will have a good title over it.
  • The provision is not limited to physical possession but also includes de jure possession
    • Example of De Jure Possession: Where a man has ceased to live in a house but without intending and to abandon it and remains the owner of the house
  • As per the wordings of this Section, it applies and is limited only to suits for possession of the property.

Adverse Possession

• Section 3 of the Limitation Act says that Court will not take cognizance of any suit, which is barred by limitation even if issue of limitation is not taken as a defence. The law of limitation bars remedy but not the right.
• Section 27 of the Act is an exception to the general principle of the law of limitation.
• It conveys that if a person fails to file a suit for recovery of possession, within a period of limitation, his right to recover the possession of that property also extinguishes. If such a situation occurs, the true owner extinguishes his ownership over the property.

Criticism

• In the case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors (2008), the Supreme Court criticized the doctrine of Adverse Possession by claiming it to be illogical and irrational because it punishes the actual owner for not taking any action within the limitation period and directed the Union of India to reconsider the doctrine.

Legal Protection to Claim Adverse Possession

• Section 27 of the Act affirms the limitation period to file a suit on the part of the property owner to be 12 years under Article 65 of the Schedule Periods of Limitation First Division – Suits.
• After the other party has possessed the property for more than 12 years continuously, no action shall lie against them.

Essentials to Prove Adverse Possession

• The Date of Possession: The date on which adverse possession of the property began must be established. This date is critical as it determines the 12-year statutory period required for adverse possession.
• Knowledge of Owner: It is necessary to demonstrate that the true owner had knowledge of the possession and the date when they became aware of it. Additionally, it is essential to establish that immediate neighbors were aware of the possession and the date when they became aware of it.
• Peaceful Possession: The possession taken by the trespasser of the property must be peaceful. Any possession which is taken by a person after threatening the real owner of the property does not come under adverse possession.
• Lack of Legal Action by the Owner: It must be proven that the true owner did not take any action against the possession despite having knowledge of it. It must be proven that the owner was aware of the possession.
• Continuous Possession: It must be established that the possession of the property was continuous without any interruptions by the owner or any other person.

Exceptions

• Such rule of adverse possession does not apply to following persons:
  • If the owner is a minor.
  • If the owner is mentally unwell.
  • If the owner serves in the armed forces.

Adverse Possession in Government Properties

• For adverse possession of any Government property the period to claim ownership from the Government or any public organization has been fixed at 30 years by Section 25 of the Act.
• In other words, it is only after 30 years of uninterrupted possession of the person that no action for claims could be filed if the property is owned by the Government.

Conclusion

The law of prescription aids the vigilant person in possession of the property to claim ownership even if this doctrine seems harsh upon the dormant owner the law needs to be abided by till the legislation is amended.