In the landscape of real estate, land acquisition plays a pivotal role. Every real estate player intending to acquire land for their projects evaluates the land by conducting due diligence. In the process of this due diligence one of the usual issues that come up is that of adverse possession by way of which possessory title is declared. However, to obtain a possessory title through adverse possession a person needs to fulfill the conditions laid out in law and jurisprudence. In this blog I discuss the various factors that determine adverse possession and thereby the possessory title.
The law of adverse possession is contained in Article 65 of Schedule I of the Limitation Act, 1963 which prescribes a limitation period of 12 years for a suit for possession of immovable property, or any interest therein based on title.
In the age-old case law of Perry V. Clissold, Privy Council, held that ‘a person in possession of the property assumes the character of the owner and exercises all the ordinary rights of the owners except against the rightful owner. In such a case if the rightful owner does not come forward and assert his/her/their title by the process of law within the period prescribed by the provisions of statute of limitation applicable to the case, his/her/their right is forever extinguished, and the possessory owner acquires and absolute title’.
The abovementioned simple principle has undergone myriad of variations by multiple judgements viz Radhmoni Debi V. Collector of Khulna, Maharaja Sri Chandra Nandi V. Bajinath Jugal Kishore, Thakur Kishan Singh V. Arvind Kumar, Gaya Prasad Dikshit V. Dr. Nirmala Chander and another, Karnataka Board of Wakf v. Government of India and Annakili v. A. Vedanayagam, etc. On collective review of these cases, the following can be set out as the conditions which need to be satisfied to claim possessory title:
(a) Nec vi i.e., adequate in continuity;
(b) Nec clam i.e., adequate in public;
(c) Nec precario i.e., adverse to competitor, in denial of title and knowledge; and
(d) Animus Possedendi i.e., the intention to possess, in other words, the intention to dispossess the rightful owner.
Which in essence means possession must be open, clear, continuous, and hostile to the claim or possession of the other party
While propounding the abovementioned conditions, in the judgement dated August 9, 2023, in the case of Government of Kerala and Another v. Joseph and others, the Hon’ble Supreme Court of India held as follows:
(a) A mere long period of possession does not translate into the right of adverse
possession.
(b) Surmise, conjectures, and approximations cannot serve the basis for taking away the right over the land resting with the [State] and place the said bundle of rights in the hands of one who did not have any such rights.
Therefore, while conducting the due diligence of a property with possessory title the real estate players have to evaluate if the person who claims adverse possession: (a) has established the date on which he came in possession, (b) nature of possession, (c) the factum of possession, (d) knowledge to the true owner, (e) duration of possession and that possession was open and (f) undisturbed. If the real estate player is satisfied that the above conditions are met by the adverse possessor, then it may be ordinarily deemed that such adverse possessor has the possessory title to the land parcel.
